IBRAHIM LIMAN KATAGUM & ANOR v. ALHAJI DANLADI ME-MAI
(2014)LCN/6918(CA)
RATIO
WHETHER THERE MUST BE STRICT COMPLIANCE WITH THE LAID DOWN PROCEDURE IN DISPOSING PROPERTY
Now, in resolving the sole issue for determination, my first port of call is Section 44(1) of the Constitution of the Federal Republic of Nigeria, 1999, which provides as follows: “No movable property or interest in an immovable property shall be taken possession of compulsorily and no right over or interest on such property shall be acquired compulsorily except in the manner and for the purpose prescribed by a law… 44(1) (e) relating to the execution of the judg ments or order of courts…”
The provisions of the Section set out supra are self-explanatory and do not require any aid for them to be interpreted. The section has made it crystal clear that one cannot easily be divested of his immovable property. However sub-section 2 has provided exceptions to the general rule, one of which is Section 2(e) which reads: “relating to the execution of orders of Courts”
The question that is begging for an answer is, how can one be divested of his immovable property relating to the execution of orders of Court? An answer to this question has been provided in the case of Obikoya and Sons Ltd v. Governor of Lagos (1987) 1 NWLR (Part 50) at pp. 385, at 388 – 389 where it was held thus: “… Any provision of the law which gives or governs compulsory acquisition of a person’s property must be construed strictly against the acquiring authority and sympathetically in favour of the complainant or owner or possessor of the property against any irregularity in the procedure for acquisition as laid down by the enabling statute…”
Let me say loud and clear that the purported auction sale was in violation of the Sheriff and Civil Process Laws of Bauchi State and the Constitution of the Federal Republic of Nigeria 1999. There was no motion on notice filed prior to the sale of judgment debtor’s immovable property, such sale is null and void.
The procedure pertaining to acquisition of a person’s immovable property relating to the execution of order of Court is well settled. In the case of Saleh vs. Monguno (2006) 15 NWLR (part 1001) pages 54 – 55 paragraphs E – H, the apex Court, per our erudite emeritus Justice, Tabai JSC held that:
“From the provision of sections 47 and 48 of the Sheriffs and Civil Process Law, Cap. 123, Laws of Northern Nigeria and Order IV rule 16 (1)-(3) of the Judgment (Enforcement) Rules made under the Act, the attachment and sale of the immovable property of a judgment debtor must be by leave or order of court made upon an application. Although both the Law and the Judgment (Enforcement) Rules are silent on the question of whether the application can be made ex-parte or on notice, since there are many things the court has to satisfy itself about, it is only but fair and just that the judgment debtor be put on notice of the application. In other words, such an application must be on notice to the judgment debtor, because of its crucial nature involving a determination of the judgment debtor’s Constitutional rights. Per TIJJANI ABDULLAHI, J.C.A
