IBRAHIM MASTER v. MOHAMMED MANSUR & ORS (2014)

IBRAHIM MASTER v. MOHAMMED MANSUR & ORS

(2014)LCN/7153(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 29th day of April, 2014

CA/K/228/2010

RATIO

WORDS AND PHRASES: POSSESSION OF PRPERTY

WHETHER THE IN PARI MATERIAL PROVISIONS OF A STATUTE CAN BE INTERPRETED BY REFERRENCE TO A PREVIOUS COURT DECISION WHERE IT HAD BEEN CONSIDERED

It is trite that where the provisions of a statute or section of a statute are in pari material, light may be thrown on the meaning of such a provision of a statute or section which is in pari material by referring to a previous decision of a competent court where similar provisions had been previously considered – Attorney General, Abia State v. Attorney General, Federation (2005) 12 NWLR (Pt. 940) 452. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

WHERE A COURT IS TO ADOPT A HOLISTIC APPROACH IN INTERPRETING STATUTE DEALING WITH A PARTICULAR SUBJECT MATTER

The court of law in the exercise of its interpretative jurisdiction must stop where the statute stops – Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 and Okoli v. Udeh (2008) 10 NWLR (Pt. 1095) 213. Further, where there are provisions in a statute dealing with a particular subject matter, a court is enjoined to adopt a holistic approach and construe all the provisions as a whole and not in bits and pieces in a truncated form – Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606 and Abiodun v. Chief Judge, Kwara State (2007) 18 NWLR (Pt. 1065) 109. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

CFR Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

IBRAHIM MASTER Appellant(s)

AND

1. MOHAMMED MANSUR
2. UPPER SHARIA COURT TUNDUN WADA, KADUNA
3. HONOURABLE ATTORNEY-GENERAL OF KADUNA STATE
4. ALHAJI ABUBAKAR Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the leading Judgment): This appeal is against the decision in the ruling of the Kaduna State High Court in Suit No. KDH/KAD/284/2003 delivered by Honourable Justice M. T. M. Aliyu on the 15th of March 2006. The Appellant commenced an action in the lower Court under the Fundamental Right (Enforcement Procedure) Rules and he prayed for:
i. A declaration and an Order that the purported attachment and confiscation of the Applicant’s property lying and situate at No. MK 14, Magaji Sambo Road, Tudun Wada, Kaduna purportedly made in the course of the judgment in satisfaction of the terms of the said judgment without affording the Applicant an opportunity to pay the judgment debt and without previously attempting to dispose of his movables and without affording him a hearing is unconstitutional and a breach of his right to fair hearing as guaranteed by Section 36 of the 1999 Constitution.
ii. A declaration that the sale of the Applicant’s property lying and situate at MK 14, Magaji Sambo Road, Bakinruwa Tudun Wada, Kaduna which was carried out on the 20th of February, 2004 in the unlawful execution of the judgment of the Upper Sharia Court Tundun Wada, Kaduna, in case No. 192/2003 amounts to a violation of the Applicant’s inviolable right to acquire and own immovable property contrary to the provisions of Sections 43, 44 of the Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10, Laws of Federation 1990 and is therefore unconstitutional, unlawful, illegal, null and void.
iii. A declaration that the purported sale of the Applicant’s property lying and situate at No MK 14, Magaji Sambo Road, Tudun Wada, Kaduna on the 20th of February, 2004 under the guise of execution of the judgment of the Upper Sharia Court Tudun Wada Kaduna in Case No. 192/2003 violates the Applicant’s sacred and inviolable right to own property and from being expropriated by others without due process or compensation and has deprived him of his proprietary vested right in the said property.
iv. An order of this Honorable Court setting aside the purported sale of the Applicant’s property situate at No. MK 14, Magaji Sambo Road, Bakinruwa Tudun Wada, Kaduna (by quashing the proceedings of the Upper Sharia Court Tudun Wada, Kaduna) and reverting tide in the property to the Applicant.
v. An order of injunction staying all proceedings including the appeal in this matter before the Sharia Court of Appeal, pending the determination of this application for the enforcement of the Applicant’s fundamental rights.

The case of the Appellant in the affidavit in support of the application was that the first Respondent commenced an action against him in the Upper Sharia Court, Tudun Wada for criminal breach of trust and claiming the sum of N470,000.00 which he allegedly collected from the first Respondent for the purpose of acquiring a shop and that the matter was transferred to the civil cause list and that on the 8th of December, 2003, the Upper Sharia Court entered judgment against him and ordered him to pay the sum of N470,000.00 to the first Respondent; certified copies of the judgment in Hausa and its English version were Exhibits 1 and 1A. It was his case that he filed an application before the Upper Sharia Court for an order setting aside the notice of sale pasted on the property and for instalmental payment of the judgment sum on the 24th of January, 2004 and that while the application was pending, the Upper Sharia Court ordered that his house be sold in execution of the judgment a copy of the application was Exhibit 2. It was his case that on the 23rd of February, 2004, the second Respondent wrote to inform him that his property has been sold pursuant to the judgment and that he filed an application on 6th of January, 2004 for leave to appeal out of time to the Sharia Court of Appeal and for stay of execution of the judgment of the Upper Sharia Court the Hausa and English versions of the letter and the application were Exhibits 3, 3A and 4.

It was the case of the Appellant that he was granted leave to appeal out of time by the Sharia Court of Appeal, copy of ruling was Exhibit 5, and that he filed two separate applications for certiorari before the High Court of Kaduna Sate for the quashing of the proceedings, judgment and orders of the second Respondent and the two applications were refused; copies of the rulings were Exhibits 6 and 6A. It was his case that the Upper Sharia Court did not have jurisdiction to order the sale of his property in satisfaction of the judgment debt and that the rules governing execution of judgment of Sharia Courts only empower the Courts to deal moveable properties and that there are no rules in respect of immovable property. It was his case that the unlawful sale of his property in execution of the judgment of the Upper Sharia Court amounted to a contravention of his fundamental rights as it denied him proprietary rights to his property and in consequence of which he and his family have been rendered homeless.

The Respondents did not file any response to the application. The lower Court heard the application and counsel to all the parties addressed the lower Court. At the conclusion of the hearing, the lower Court struck out the application of the Appellant for being incompetent. The lower Court stated thus:
“It is not in dispute that this Court is vested with special jurisdiction under Section 46 (1) of the Constitution to hear and determine the application of any person who alleges that any provision of Chapter IV of the Constitution has been, is being or likely to be contravened and by virtue of sub-section (2), this court “may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within the State of any rights to which the person who makes the application may be entitled”
Plethora of judicial authorities since the decision in Turkur v. Government of Taraba State (supra) have shown that when the main or principal claim in an application is not the enforcement or securing the enforcement of a fundamental right, the court has no jurisdiction to entertain it under the Fundamental Rights (Enforcement Procedure) Rules…
In the instant application, both Counsel are ad-idem that the principal or main relief claimed by the applicant is the declaration that the execution against the immovable property of the applicant by the lower court was not done in accordance with any existing law. (See grounds (a) and (b) of the application). The alleged breaches of the applicant’s fundamental rights to own immovable property and fair hearing flowed from this main complaint. The main complaint being one challenging the authority of the lower court to dispossess the applicant of his immovable property in execution of its judgment when the Grand Kadi did not make rules to govern such execution as he is empowered to do under Section 60 of the Sharia Court Law, is not one alleging breach of any fundamental rights in Chapter IV of the 1999 Constitution. It is true that the Supreme Court in FRN v. Ifegwu (supra)… had stated that the person seeking redress from a contravention of his fundamental right should not be inhibited by the form of action he adopts. It is however important to note that the main relief in that case relates to the violation or breach of the applicant’s fundamental right under section 33(8) of the 1979 Constitution.
The main relief in this application as I have shown is not alleging the breach of the fundamental right of the applicant but the execution of the judgment of the lower Court. Consequently, it is my humble opinion that the application was not initiated by due process of law and the application is therefore incompetent….”

The Appellant was dissatisfied with the ruling and he caused his Counsel to file a notice of appeal dated the 5th of July, 2010 against it and this was sequel to his obtaining from this Court an order of extension of time within which to appeal on the 30th of June, 2010. The notice of appeal contained three grounds of appeal.

Counsel to the Appellant presented a brief of arguments dated the 10th of April, 2012 in ventilation of the grievances of the Appellant in this appeal and it was filed on the 18th of February, 2013. The Appellant was granted an order of extension of time to file his brief of arguments by this Court on the 5th of February, 2013. Counsel to the first and fourth Respondents filed a brief of arguments dated the 20th of February, 2013 in response. The second and third Respondents did not file any process in this appeal and they did not participate in the hearing of this appeal. At the hearing of the appeal, Counsel to the Appellant and to the first and fourth Respondents relied on and adopted their respective briefs of arguments.

Counsel to the Appellant distilled two issues for determination in his brief of arguments. These were:
i. Whether in the circumstances of this case, the disposal of the property of the Appellant by the second Respondent in satisfaction of a judgment sum without recourse to the Appellant prior to sale and without the authority of existing legislation to execute judgment by sale of immovable property amounts to a violation of his fundamental right to acquire and own immovable property contrary to sections 43 and 44 of the 1999 Constitution.
ii. Whether the lower Court was right in striking out the Appellant’s case despite the materials before him without considering the merits of the case.

On his own part, Counsel to the first and fourth Respondents distilled one issue for determination and it was:
Whether the lower Court was right in its decision delivered on the 15th of March, 2006?

It is obvious that the two issues formulated by the Counsel to the Appellant say the same thing with the single issue formulated by the Counsel to the first and fourth Respondents. This Court will consider all the arguments on the issues together.

Counsel to the Appellant stated in his brief that the bane of the complaint of the Appellant is that the attachment, confiscation and sale of his property at No. MK 14, Magaji Sambo Road, Tudun Wada, Kaduna in execution of the judgment of the second Respondent amounts to a violation of his fundamental right to acquire and own immovable property contrary to the provisions of Sections 43 and 44 of the Constitution and that the High Court is vested with jurisdiction to entertain matters on breach of fundamental rights under Section 46 of the Constitution. Counsel stated that notwithstanding the existence of the Fundamental Rights (Enforcement Procedure) Rules, applications for the enforcement of fundamental rights can be made in any manner which depicts the violation of such rights and he referred to the case of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387. Counsel stated that the sale of the Appellant’s property under the guise of execution of judgment was an illegality and that it was not in dispute that the execution of judgment was carried out under a non-existing law as the Grand Kadi was yet to make rules governing sale of immovable property in execution of judgment of the Sharia Courts and that the manner in which the second Respondent disposed of the Appellant’s property without the existence of rules was wicked, illegal and unconstitutional; Counsel referred to the case of Leedo Presidential Motel v. Bank of the North Ltd (1998) 10 NWLR (Pt. 570) 383.

Counsel stated that the Appellant’s grievances cannot be thrown out on a technical ground as it is rooted firmly on the Constitution and that it is even against public policy for the Appellant to compromise illegality and it is absurd or bizarre to encourage disobedience of the dictates of the law; he referred to the case of Ariori v. Elemo (1983) All NLR 1. Counsel stated that the lower Court was in error to have divided the reliefs of the Appellant into main and subsidiary reliefs as what was important is that the Appellant was within his rights when he approached the Court through the Fundamental Human Right procedure to ventilate his case and he referred to the case of Adeyanju v. WAEC (2002) 13 NWLR pg 497. Counsel stated that the principal relief sought by the Appellant amongst others was a declaratory relief to the effect that he had been disposed of his immoveable property without recourse to due process and which amounted to a violation of his right to own property and fair hearing and as such the procedure adopted to initiate the action was a right one; he referred to the cases of Federal Republic of Nigeria v. Ifegwu (2003) FWLR (Pt. 167) 703 and Abdullahi v. Akar (2006) 13 NWLR (Pt. 996) 149. Counsel stated that the lower Court was thus in error when it held that the action was not commenced by due process and that the lower Court was in further error when it failed to consider the application of the Appellant on the merits, even if it was in the alternative. Counsel urged the Court to allow the appeal.

In response, Counsel to the first to the fourth Respondents stated that the provisions of the Fundamental Rights as contained in the 1999 Constitution are only available to those whose fundamental rights as contained therein have been breached and that what was glaring on the face of the reliefs sought by the Appellant in the lower Court was that his complaint was against the mode by the second Respondent executed the judgment sum against him and in favour of the first Respondent. Counsel stated that the law is that where the main plank of an applicant’s complaint does not fall within any of the constitutional provisions on the fundamental rights, the complaint should not be entertained under the Fundamental Rights (Enforcement Procedure) Rules and he referred to the cases of Seatrucks Nigeria Ltd v. Anigboro (2001) 1 SCNJ 55, Dangote v. Civil Service Commission & 2 Ors (2001) 4 SCNJ 131. Counsel stated that having found that the action of the Appellant was improperly constituted, the lower Court was right in striking out the suit and he referred to the case of Kogi State & 3 Ors v. Yakubu (2001) FWLR (Pt. 43) 359.

Counsel thereafter proceeded to argue that the procedure adopted by the second Respondent in selling the property of the Appellant in execution of a judgment of Court was in substantial compliance with provisions of Section 37 and 55 of the Kaduna State Sharia Court’s Law 2001, and he stated that the complaint of the Appellant was only against the procedure adopted in effecting the sale of the property of the Appellant and not against the competence of the Court to order and carry out the sale. Counsel urged this Court to hold that the decision of the lower Court in striking out the suit of the Appellant was in order and to dismiss the appeal.

This action was commenced in the lower Court by an application for the enforcement of the fundamental rights of the Appellant. Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti v. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law – Igwe v. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61. In the words of Jacques Maritain:
“The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. The dignity of the human persons? The expression means nothing if it does not signify that by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things which are owed to man because of the very fact that he is a man”(Jacques Maritain, The Rights of Man and Natural Law 65 (D. Anson trans. 1943)
Calling these guarantees “rights” suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country.
The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan v. Economic and Financial Crimes Commission (2014) 1 NWLR (Pt. 1389) 607.

The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the court to protect these rights – Igwe v. Ezeanochie supra.

The Appellant commenced his action before the lower Court using the procedure laid down in the Fundamental Rights (Enforcement Procedure) Rules, 1999. It is settled that where an application is made under the Fundamental Right (Enforcement Procedure) Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the securing of enforcement thereof should be the main claim and not the accessory claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised under the Fundamental Right (Enforcement Procedure) Rules – Tukur v. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549, Gafar v. Government of Kwara State (2007) 4 NWLR (Pt. 1024) 375. The Rules are specifically restricted only to actions on contravention of the provisions of Chapter IV of the Constitution. Thus, only actions founded on a breach of fundamental rights guaranteed in the Constitution of the Federal Republic of Nigeria can be enforced under the Fundamental Rights (Enforcement Procedure Rules) 1979 and where an applicant under the Fundamental Rights (Enforcement Procedure Rules) is unable to pigeon hole his complaint within any of the guaranteed fundamental rights, the jurisdiction of the court cannot be said to be properly invoked and the action is liable to be struck out on the ground of incompetence – West African Examination Council v. Akinkunmi (2008) 9 NWLR (Pt. 1091) 151 and West African Examination Council v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270. It has thus been held that the court has no jurisdiction to hear and determine a suit essentially on breach of contract of employment initiated under the Rules – Effiong v. Ebong (2006) 18 NWLR (Pt. 1010) 109. Nor can a court entertain an action for wrongful dismissal under the Rules – Abubakar Tatari Alli Polytechnic v. Maina (2005) 10 NWLR (Pt. 934) 487, Isuama v. Governor, Ebonyi State (2006) 6 NWLR (Pt. 975) 184.

The question that arises in this appeal is – whether the complaint of the Appellant before the lower Court can be properly located within any of the provisions of Chapter IV of the Constitution? Counsel to the Appellant submitted that it can while Counsel to the first and fourth Respondents said that it cannot, and the lower Court agreed with the Counsel to the Respondents. The Appellant predicated his application on the provisions of Section 44 of the 1999 Constitution of the Federal Republic of Nigeria. Section 44 states, in part, thus:
(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefor; and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
(2) Nothing in subsection (1) of this section shall be construed as affecting any general law –
…….
(e) Relating to execution of judgments or orders of court; ……..”

Now, what do these provisions mean? It is elementary that in the interpretation of statute, the main object is to discover the intention of the law makers, which is deducible from the language used. Once the language is clear and unambiguous, the court will give an ordinary or literal interpretation to it. The literal construction must be followed unless that would lead to absurdity and inconsistency with the provisions of the statute as a whole. The court of law in the exercise of its interpretative jurisdiction must stop where the statute stops – Buhari v. Yusuf (2003) 14 NWLR (Pt. 841) 446 and Okoli v. Udeh (2008) 10 NWLR (Pt. 1095) 213. Further, where there are provisions in a statute dealing with a particular subject matter, a court is enjoined to adopt a holistic approach and construe all the provisions as a whole and not in bits and pieces in a truncated form – Bakare v. Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606 and Abiodun v. Chief Judge, Kwara State (2007) 18 NWLR (Pt. 1065) 109.

It is pertinent to state here that the provisions of Section 44 of the 1999 Constitution are a word for word replication of the provisions of Section 40 of the 1979 Constitution. Applying the above stated principles of interpretation, this Court will commence the interpretation of the provisions of Section 44 of the Constitution from the provisions of Section 44 (1). It is obvious that the key words in Section 44 (1) are “taken possession of compulsorily” and “acquired compulsorily”. In Agricultural Development Association, Obitti, Imo State v. Okedi (2004) 11 NWLR (Pt. 884) 369, the Court of Appeal considered the meaning of these words as stated in Section 40 of the 1979 Constitution. Ikongbeh, JCA who delivered the lead judgment endorsed the following statement at pages 394-395:
“…. Compulsorily taking possession of is not limited to cases of compulsory acquisition under the Public Lands Acquisition Decree. The word “compulsorily” simply means “having the force of compulsion” or “to compel”. The word “compulsory” in the first part of Section 40 (1) of the 1979 Constitution aforesaid simply refers to situations where a citizen’s land is forcefully taken possession of. The situation covers the circumstances of this case where the appellant, using their powers as a statutory corporation of Imo State Government, continues to forcefully occupy the respondents’ land and was even issuing public notices to chase away the respondents from their land… The facts of the case and evidence led apart from supporting the claim of trespass, also supported the alternative claim that the appellant” behavior amounts to forceful taking possession of the respondents’ land. This alternative claim was not founded on compulsory acquisition of land by government even though the latter part of Section 40 (1) refers to compulsory acquisition. Under Section 40 (1) any forceful taking of possession of another’s land is unconstitutional just like cases of compulsory acquisition by government.”

This Court will abide by the interpretation given to Section 40 (1) of the 1979 Constitution by the Court of Appeal in Agricultural Development Association, Obitti, Imo State v. Okedi supra in interpreting the provisions of Section 44 (1) of the 1999 Constitution.
Following from this said decision of the Court of Appeal in Agricultural Development Association, Obitti, Imo State v. Okedi, any forceful taking of possession of another’s land offends against the provisions of Section 44 (1) of the 1999 Constitution.

Now, possession of property or a parcel of land means the occupation or physical control of the property or parcel of land by a person either personally or through an agent or servant – NITEL Plc v. Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, Ladipo v. Ajani (1997) 8 NWLR (Pt. 517) 356, Okegbemi v. Akintola (2008) 4 NWLR (Pt. 1076) 53.
The word “forceful” is defined in the Oxford Advanced Learner’s Dictionary, International Student’s Edition as using violent physical action to obtain or achieve something. Thus, to constitute forceful taking of possession of property, a person must have used some level of violent physical action to enter into occupation or physical control of the property.

In the instant case, and from the depositions of the Appellant in support of his application, the first Respondent commenced an action against the Appellant in the Upper Sharia Court, Tudun Wada claiming the sum of N470,000.00 and on the 8th of December, 2003, the Upper Sharia Court entered judgment against the Appellant and ordered the Appellant to pay to the first Respondent the sum of N470,000.00 within one month; certified copies of the judgment in Hausa and its English version were Exhibits 1 and 1A. The Appellant did not pay the judgment sum as ordered and the Upper Sharia Court caused a notice of sale to be pasted on the property of the Appellant situate at No. MK 14, Magaji Sambo Road, Tudun Wada, Kaduna on the 23rd of January, 2004 notifying the Appellant that the property will be sold in satisfaction of the judgment debt. On the 23rd of February, 2004, the second Respondent wrote to inform the Appellant that the property has been sold to satisfy the judgment debt; the Hausa and English versions of the letter and the application were Exhibits 3 and 3A. Exhibit 3A read thus:
“The Honorable Judge of this Court, of the above given address, has directed me to write informing you that the Court has sold your house upon a consideration of the sum of N1,050,000.00 (One Million and Fifty Thousand Naira).
Out of the amount stated above, the Court settled your indebtedness as per the judgment of Court including the filing fees and all other costs to the tune of N490,500.00 as contained in the writ of Attachment used to attach your house.
You should therefore come and collect the remaining balance of your money which is the sum of N559,500.00 and vacate your house before the 5th March, 2004.
Thank you.”

The property of the Appellant was sold in execution of a judgment of Court and pursuant to a notice of attachment pasted on the property for a month before the said sale and the Appellant was requested to vacate and give up possession of the house. This cannot qualify as forceful taking of possession of the property of the Appellant to bring it within the provisions of Section 44 (1) of the 1999 Constitution. This is particularly more so as Section 44 (2) (e) states that the provisions of Section 44 (1) will be inapplicable where the taking of possession of property compulsorily was done in furtherance of the execution of judgment or orders of Court.

The case of the Appellant as made out on the application before the lower Court did not come within the provision of Section 44 of the 1999 Constitution or of any other provision in Chapter IV of the Constitution. The action of the Appellant thus ought not to have been brought under the provisions of the Fundamental Rights (Enforcement Procedure) Rules. The action as brought by the Appellant was incompetent and liable to be struck out – West African Examination Council v. Akinkunmi supra and West African Examination Council v. Adeyanju supra. The decision of the lower Court striking out the application of the Appellant as incompetent was thus on very firm ground and it will not be disturbed by this Court.

In conclusion, this Court finds that this appeal is devoid of merit and it is hereby struck out. The decision in the ruling of the Kaduna State High Court in Suit No. KDH/KAD/284/2003 delivered by Honourable Justice M. T. M. Aliyu on the 15th of March, 2006 is hereby affirmed. The first and fourth Respondents are entitled to the cost of this appeal assessed at N50,000.00. These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I agree.

ABDU ABOKI, J.C.A.: I have had the opportunity of reading the lead judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru, J.C.A., and I agree with his reasons and conclusion reached therein that the appeal is devoid of merits and should be struck out.

I too affirmed the decision of the lower Court in Suit No. KDH/KAD/234/2003 delivered by Hon. Justice M. T. M. Aliyu on the 15th of March, 2006. I abide by the consequential orders as to costs.

Appearances

B. Y. Dangana with Samira MijinyawaFor Appellant

AND

P. Y. Garuba for the first and fourth Respondents
No appearance for the second and third RespondentsFor Respondent