Legalpedia Citation: (2014) Legalpedia (CA) 41141
In the Court of Appeal
Tue Mar 11, 2014
Suit Number: CA/K/178/2013
CORAM
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EJUN
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EJUN
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EJUN
THERESA N. ORJI-ABADUA, JUSTICE COURT OF APPEAL
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EJUN
THERESA N. ORJI-ABADUA, JUSTICE COURT OF APPEAL
THERESA N. ORJI-ABADUA, JUSTICE COURT OF APPEAL
RABIU DANLAMI MUHAMMAD
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EJUN
THERESA N. ORJI-ABADUA, JUSTICE COURT OF APPEAL
PARTIES
ALH. ALKASIM U. SULEIMANABDULAZEEZ YUSHA’U APPELLANTS
UPPER SHARIA COURT NO: 1, G.R.A. ZARIAIDRIS ABDULLAHI RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Respondent had entered a judgment in the sum of N3, 200,000.00 against the 2nd Appellant in favour of the 2nd Respondent. The 1st Appellant was not a party to the suit at the Upper Sharia Court but stood as a surety for the 2nd Appellant to pay the judgment sum if the judgment debtor failed to pay and deposited the title documents of his house with the 1st Respondent. The 2nd Appellant paid some amount of money N2, 150,000.00 into the Registry of the 1st Respondent leaving a balance of N1, 050,000.00. Consequently, the 1st Respondent issued a writ of attachment for the sale of the 1st Appellant’s house under order 19 Rule 7 of the Kaduna State Sharia Court (Civil Procedure) Rules, 2010. The Appellant sought and obtained leave to apply for the order of certiorari to remove to the High Court of Justice, the order and/or writ of attachment (Immovable property) of the 1st Appellant’s house, by the 1st Respondent for the purpose of being quashed. In a considered ruling, the Court below dismissed the application. Dissatisfied, the Appellant has appealed.
HELD
Appeal allowed.
ISSUES
1. Whether having regard to the affidavit evidence in support of the application, the learned judge of the Court below was not in error to have dismissed, the Appellants’ application for certiorari” (Grounds 1 and 2)?
2. Whether in view of the evidence before the lower court, the jurisdiction of the Court can be rightfully invoked to quash the court processes of execution of the sale of the House No C5 Ungwan Tanki, Kofar Doka, Zaria, which house and receipt of purchase of same were voluntarily surrendered to the court by the Applicants to be sold to satisfy the judgment sum against the 2nd Applicant to the admission of the Applicants.?
RATIONES DECIDENDI
WRIT OF EXECUTION-WHEN A WRIT OF EXECTION FOR THE ATTACHMENT OF IMMOVABLE PROPETY OF A JUDGMENT DEBTOR CAN BE ISSUED
“A writ of execution for the attachment of immovable property of a judgment debtor can only be issued upon application by the judgment creditor, and that done, after application for the sale of movable property had been granted and the proceeds of the sale of the moveable property found insufficient to satisfy the judgment debt”. PER MBABA JCA
JUDICIAL REVIEW- CONCERNS OF THE COURT WITH RESPECT TO JUDICIAL REVIEW
“By judicial review the Court is usually concerned about legality of proceedings, decisions or acts of the affected inferior Court tribunal or governmental body”. PER MBABA JCA
CERTIORARI PROCEEDING- WHEN REMEDY IN CERTIORARI PROCEEDINGS WILL BE GRANTED
“It is well settled law, that the remedy by certiorari proceedings will be granted when any of the following is present:
(i) lack of or excess of jurisdiction
(ii) Error on the face of record of an inferior Court or tribunal
(iii) Breach of observance of natural justice regarding fair hearing”. PER MBABA JCA
LEAVE TO APPEAL- WHEN LEAVE TO APPEAL IS NOT REQUIRED IN AN ACTION
“Leave is not required, where the decision of the High Court, finally, disposes of the rights of the parties to the action, whether or not from an interlocutory ruling, provided the High Court was hearing the case, sitting at first instance. Leave is not also required to appeal, where the ground(s) of appeal involves questions of law alone, as such appeals are as of right”. PER MBABA JCA
JUDICIAL REVIEW-JURISDICTION OF THE HIGH COURT TO EXERCISE JUDICIAL REVIEW OVER DECISIONS OF INFERIOR COURTS, TRIBUNALS AND GOVERMENTAL BODIES
“By Order 37 Rule 3 (1) to (5) of High Court (Civil Procedure) Rules 2007, the High Court has jurisdiction to exercise judicial review/supervision over the proceedings, decisions and acts of inferior Courts, tribunals and governmental bodies, and the reliefs/remedies available are in the form of orders of mandamus, certiorari, and prohibition and also the writ of Habeas Corpus”. PER MBABA JCA
CERTIORARI PROCEEDING- WHEN REMEDY IN CERTIORARI PROCEEDINGS WILL BE GRANTED
“It is well settled law, that the remedy by certiorari proceedings will be granted when any of the following is present:
(i) lack of or excess of jurisdiction
(ii) Error on the face of record of an inferior Court or tribunal
(iii) Breach of observance of natural justice regarding fair hearing”. PER MBABA JCA
JUDICIAL REVIEW- CONCERNS OF THE COURT WITH RESPECT TO JUDICIAL REVIEW
“By judicial review the Court is usually concerned about legality of proceedings, decisions or acts of the affected inferior Court tribunal or governmental body”. PER MBABA JCA
LEAVE TO APPEAL- WHEN LEAVE TO APPEAL IS NOT REQUIRED IN AN ACTION
“Leave is not required, where the decision of the High Court, finally, disposes of the rights of the parties to the action, whether or not from an interlocutory ruling, provided the High Court was hearing the case, sitting at first instance. Leave is not also required to appeal, where the ground(s) of appeal involves questions of law alone, as such appeals are as of right”. PER MBABA JCA
WRIT OF EXECUTION-WHEN A WRIT OF EXECTION FOR THE ATTACHMENT OF IMMOVABLE PROPETY OF A JUDGMENT DEBTOR CAN BE ISSUED
“A writ of execution for the attachment of immovable property of a judgment debtor can only be issued upon application by the judgment creditor, and that done, after application for the sale of movable property had been granted and the proceeds of the sale of the moveable property found insufficient to satisfy the judgment debt”. PER MBABA JCA
JUDICIAL REVIEW-JURISDICTION OF THE HIGH COURT TO EXERCISE JUDICIAL REVIEW OVER DECISIONS OF INFERIOR COURTS, TRIBUNALS AND GOVERMENTAL BODIES
“By Order 37 Rule 3 (1) to (5) of High Court (Civil Procedure) Rules 2007, the High Court has jurisdiction to exercise judicial review/supervision over the proceedings, decisions and acts of inferior Courts, tribunals and governmental bodies, and the reliefs/remedies available are in the form of orders of mandamus, certiorari, and prohibition and also the writ of Habeas Corpus”. PER MBABA JCA
CASES CITED
ACB PLC. VS. Nwaigwe (2011) 7 NWLR (Pt. ) 380; (2011) LPELR 208 (SC).Ekpo Vs. Calabar Local Govt. Council (1993) 3 NWLR (Pt 281) 324;Ezenwa Vs. Bestway Electric Met Co. Ltd (1999) 18 NWLR (Pt. 613) 61 at 82Garba Vs. Ummuani (2012) 12 WRN 76Igunbor Vs. Afolabi (2001) 11 NWLR (Pt. 723) 148Leedo Presidential Motel VS. B.O.N. Ltd (1998) 10 NWLR (Pt. 570) 353Nagppe Vs. Pharmacists Council Of Nig. & Ors (2013) LPELR 21834 CAOgolo Vs. Ogolo (2006) 5 NWLR (Pt. 972) 163;Owoh Vs. Asuk (2008) 16 NWLR (Pt. 1112) 113.
STATUTES REFERRED TO
1. The 1999 Constitution of the Federal Republic of Nigeria
2. The Sheriff and Civil Process Act
3. Court of Appeal Act 2004
4. Court of Appeal Rules 2011
5. High Court (Civil Procedure) Rules 2007
6. The Sharia Court (Civil Procedure) Rules 2010