CAVENDISH PETROLEUM NIG. LTD & ANOR V DERIBE

CAVENDISH PETROLEUM NIG. LTD & ANOR V DERIBE


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 13TH APRIL, 2018


Suit No: CA/L/609/2008

CITATION:

Before Their Lordships:

YARGATA BYENCHIT NIMPAR, JCA

BIOBELE ABRAHAM GEORGEWILL, JCA

JAMILU YAMMAMA TUKUR, JCA


BETWEEN

CAVENDISH PETROLEUM NIG. LTD
ALHAJI ZANNA DERIBE
(APPELLANTS)

AND

ABATCHA UMAR MAI DERIBE
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Grounds of Appeal – How issues to be determined in an appeal must arise from the claim at the trial Court

Let me start with the subtle objections raised by the Respondent. The Respondent challenged grounds 1 and 4 of the Notice of appeal which also generated issue one. He contended that the grounds are at variance with the prayers contained in the Appellants Notice of Preliminary objection and do not arise from the decision appealed against.
A close look at the Appellants issue one will show that they challenged the validity of the proceedings/judgment of 30/12/2004 at pages 15-76 of the record of appeal. The said pages start with the Certificate of ownership duly issued by the Sharia Court after the sharing of the estate of the deceased Alhaji Deribe to his heirs and it contains proceedings of different dates including the 29/12/2003 wherein the sharing to individual groups is reflected. The proceedings of 30/22/2004 are the resumed sitting of the Court with the proceedings of the day. The issue addressed that day was that of money withheld by one of the heirs of the estate and the Court noted the refusal of the heir to handover a certain sum of money to the Respondent and two others. The Court went on to state that it will take the sum withheld from the money in the custody of the Court and give to the Respondent and the two others who are entitled to the said sum of money, it said thus:

“The Court has observed if up to Friday 31st December, 2004 the money is not handed over to the Court, the Court will take from the money in her possession and give Mohammed and Abatcha, the sum of 12,500 dollars equal 1,750,000 each and the remaining shares of the other two boys will be discussed in the next sitting and this is the order of the Court.
Signed judge 30/12/2004.”

It is clear therefore that this was the basis of the Appellant’s application as clearly seen at pages 89-90 of the record of appeal. The issue of the order made on the 29/12/2003 is therefore not part of the application made at the Court below by the Appellant and is therefore a new issue which was raised without leave and this is against the grain of the law, see Nwachukwu v. The State (2007) ALL FWLR (Pt.390) 1380 @ 1402.

The consequence of raising a fresh issue without leave is to strike out the issue and discountenance same. The issues to be determined in an appeal must arise from the claim at the trial Court, whether they are of law or fact. Furthermore, where a ground of appeal does not arise from the decision appealed against, it also lacks the life to generate an issue. It is incompetent and must be struck out, see C.C.B. Plc v. Ekperi (2007) 3 NWLR (Pt. 1022) 493 @ 509. It must have come up for consideration at the Court below and this was not the case here. The order made on the 29/12/2003 was not considered instead what was the bone of contention was the proceedings of 30/12/2004. The two are not the same and cannot be interchanged also. The first issue is therefore struck out.

However, the Court shall in the alternative proceed to determine the issue considering that the issue has a jurisdictional slant to it because if a judgment is a nullity then the Court could not have acted on such thereby denying the Court of competence. On that ground alone, I shall determine the issue. Per NIMPAR, JCA. read in context

2. Leave Of Court – How leave of court is a necessity where appealing against cost

Furthermore and most fundamentally, there cannot be an appeal against cost without leave of Court. No leave was sought to appeal against cost here and therefore, this issue must be discountenanced as it is incompetent, see Adewunmi & Ors v. Oketade (2010) LPELR-163 (SC) which held as follows:

“It is trite that appeal does not lie as of right against an award of cost by a Court.”

See also Unifam Industries Ltd v. Oceanic Bank International (Nig.) Ltd (200 ) 3 NWLR (Pt. 911) 83 @ 102. Consequently, this issue is hereby struck out. Per NIMPAR, JCA. read in context

C. COURT
3. Records of Court – The position of the law on the ability of the Court to take notice of files tendered before it

The next aspect of the appeal is the contention that the Court below commented and acted on a document, not before it and one which is not admissible in law, it is found at pages 206-209 of the record of appeal. The document in contention is the alleged Notice of Appeal purportedly filed against the decisions of the Yerwa Sharia Court Maiduguri, and the decisions are those of 29/12/2003 and 30/12/2004. The document was attached as exhibits to processes filed in opposition to the Preliminary Objection. The Court below examined the substance of attached documents to arrive at the finding that the decision of 29/2/2003 was not appealed against. In arriving at the decision of 18/12/2007, the Court below, riding on the invitation of the Appellants to consider the Preliminary Objection found that the substance of the Notice of Appeal had nothing to do with the decision registered and upon which execution was sought to be carried out. These also were the substance of the Counter affidavit of the Respondent herein. The arguments in the Appellants written address before the Court below also dwelt so much on the Notice of appeal and grounds therein which they contended challenged the decision of the 23/12/2003. The Respondents exhibited the Notice of Appeal to reinforce their position that the decision of 23/12/2003 was not set aside.

The question of the admissibility of the Notice of Appeal is neither here nor there because the said document was an exhibit in the application considered. A Court of law can take notice of a document in its file even where it was not tendered before it and can do so suo motu, see Abiodun v. Attorney General Of The Federation (2007) LPELR-8550 (CA) wherein SANKEY, JCA held:

“In respect of the issue of the use to which the learned trial judge put the affidavit of the 2nd and 3rd defendants even after they had been struck out as parties before the Court, it goes without saying that a Court is entitled to look at all documents contained in the case file, which are not made part of the application under consideration if such documents will lead toward doing justice in between the parties before it.”

See also Fumudoh v. Agoro (1991) 9 NWLR (Pt. 214) 210; Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Attorney General Of The Federation v. Ralph Uwazuike & Ors (2006) LPELR-11858 (CA).

Furthermore, the veracity and accuracy of the Notice of Appeal was not put in issue before the Court below and having waived its right to challenge the said Notice of Appeal, it cannot be resurrected at this stage of the proceedings. In fact, the Appellant’s counsel relied on the said document in his submissions before the Court below, see pages 262-263 of the record of Appeal. I do not see the miscarriage of justice occasioned by the Court below in looking at the said Notice of Appeal and using it to arrive at a decision.

The Respondent argued that the issue is a new issue raised without leave. On this, I disagree because the Court used the said document to arrive at the decision. In challenging the decision, a party can impeach the foundation of the decision as being done here. The issue in contention basically is the execution of the order of the Sharia Court giving the property in question to the Respondent. It had nothing to do with the shares of the 1st Appellant and by using the Notice of Appeal, the Appellants case was not affected and no miscarriage of justice was occasioned. How if any, was not established by the Appellants here, this being so because the averments of the Respondent which were not denied were also on the essence of what the alleged illegal document was sought to establish. Without the document, the Court could still have arrived at the same decision. The Court rightly viewed the Notice of Appeal and came to a decision… Per NIMPAR, JCA. read in context

C. JUDGMENT AND ORDER
4. Judgment of Court – Circumstance where the judgment of a court will be deemed valid against a party

The initial challenge relates to the judgment registered which generated this appeal. The contention is that the said judgment did not qualify as a valid judgment competent to be registered. First, it is the practice of a democracy which operates federal system of states that judgments delivered in Court of one State can be registered for enforcement in another state, see Sections 104 and 105 of the Sheriff and Civil Process Act which provides for registration of judgments of other jurisdictions. The law provides thus:

“S.104 Any person in whose favour a judgment is given or made in a Court of any State or the Capital Territory may obtain from the registrar or other proper officer of such Court a certificate of such judgment in the form and containing the particulars set forth in the second schedule or as near thereto as the circumstances will permit, which certificate such officer is hereby required to grant under his hand and the seal of such Court.

S.105(1) Upon production of such certificate to the registrar or other proper officer of any Court of like jurisdiction in any other state or the capital territory such officer shall forthwith register the same by entering the particulars thereof in a book to be kept by such officer and to be called the Nigerian Register of judgment.

(2) From the date of registration the certificate shall be a record of the Court in which it is registered, and shall have the same force and effect in all respects as a judgment of that Court, and the like proceedings may be taken upon the certificate as if the judgment had been a judgment of that Court.”

The provision for the registration of a judgment in respect of an immovable property and the procedure before execution is covered by the above quoted provision and Section 108 of the Act. The Court in which any such certificate was enforced will have control and jurisdiction over the judgment as if it is the judgment of such Court, see Skye Bank (Nig.) Plc v. Seph Investment Limited & Ors (2016) LPELR-40296 (CA). So the registration of judgments is a valid and acceptable practice.

The issue here is that what was registered as judgment of a Sharia Court does not qualify as such because the essential parameters are lacking. There is a presumption that for any enforcement, the judgment must be valid. The description of a valid judgment has received judicial attention, see the case of A. G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (Pt. 1041) 1 which said thus:

“Some of the constituent parts which a good judgment must contain, shall include: i. The issues or questions to be decided in the case;
ii. The essential facts of the case of each party and the evidence in support; iii. The resolution of the issues of fact and law raised in the case;
iv. The conclusion or general inference drawn from facts and the law as resolved; v. The verdict and orders made by the Court.”

See alsoC.P.C. v. Yuguda (2013) 7 NWLR (Pt. 1354) 450 @ 458.

It is not the rule that a Court must state or name the different stages of the judgment and the requirements may not all be present in certain situations. Judgment writing has been known to depend on individual style or slant as every judge has his peculiar style of writing judgments so there is no particular way to write a judgment as long as the essential elements be present, to particularly determine the issues in controversy between the parties. There is no rule of the thumb as it were for a good judgment. However, a judgment should ordinarily demonstrate in a dispassionate manner a consideration of all issues raised at the trial and those that logically flow from such exercise, see Ayinde Adeyemo v. Okunola Arokopo (1988) SCNJ 1 @ 15 and Polycarp Ojogbue & Anor v. Ajie Nnubia & Ors (1972) 7 ALL NLR (Pt. 2) 226. My learned brother, GUMEL, JCA gave a good and illuminating distinction between a good and valid judgment in the following way:

“As a background, I wish to state that it is no longer in doubt that writing a judgment is an art and as such each judge is entitled to and free to follow his own style in achieving the end result of a good judgment. It is however important to emphasize that there is a whole world of difference between a valid judgment and a good judgment. A valid judgment may not necessarily be a good judgment while a good judgment may not necessarily be a valid one. For example, the test of validity of a judgment may be determined by the prescriptive provisions of the Constitution under S.294 (1) where it ought to be delivered, within 90 days after conclusion of final addresses on behalf of the parties. If a judgment were to be delivered outside this benchmark period it may or may not be invalid and a nullity based upon the view of an appellate Court if it did or did not occasion a miscarriage of justice to a complainant against it. It may be invalid on that account while still being a good judgment upon a consideration of its full contents. A judgment may ex-facie be good but all the same be invalid for example if it was a judgment of an appellate Court that was delivered by a number of justices that fell short of the minimum number stipulated by the Constitution and the laws establishing such appellate Courts. Though learned counsel to the Appellant had copiously been referring to the judgment of the lower Court in this appeal as invalid, he could not sufficiently show how invalid it is based on any of the very well known and settled grounds upon which a judgment can be set aside or declared a nullity for being invalid. From all the submissions of learned counsel to the Appellant there is no doubt that his complaint against the judgment of the lower Court is as to its quality and not validity. See Chika Nwomeh v. State (2013) LPELR-20901(CA).

The Appellant in this appeal contends that the essential elements are missing from the judgment registered in Lagos High Court of Justice for enforcement. It is trite to state that the case emanated from the Sharia Court in Borno and as expected, it is the issue of sharing of the inheritance of the deceased Alhaji Deribe amongst his wives and children under Islamic Law. One clear difference is that it cannot follow the pattern obtainable in regular Courts/suits and therefore, it is illogical to expect that a judgment from a Sharia Court will take the pattern of common law format of titling suits and the style of resolution. Going through the record of proceedings for the 29/12/2003 which was tagged judgment, it is clear that the judge negotiated the settlement and distribution amongst the beneficiaries, it was a consented distribution but one obvious thing was that it made definite orders in what goes to whom. The record shows that the exercise was still ongoing when the record of proceedings was registered for enforcement. It is obvious that the property in issue here had been shared and given to the Respondent with a definite order made in respect of same. The Appellants dilemma is understandable because some of the features of a typical common law judgment were missing, however, considering the Court from where the process emanated it is forgivable if it fails to adhere to the common law standard. Sharia law has its peculiarities which cannot stand the test of common law standards. The law and practice are completely different and understandably so.

There is a difference between the case of Abubakar v. Nasamu (Supra) relied upon by the Appellants and this case. For a start, that was an election petition matter and the judgment set aside did not give reasons for arriving at the said judgment which was also given outside the 60 days constitutionally allowed, a fundamental defect. Secondly, election petitions are sui generis and have its peculiarities that cannot be transplanted into regular cases. And I also say that Sharia proceedings are conducted according to Islamic Law which also has its nuances that cannot be judged by the standard of regular proceedings.

One striking feature is that concerning the property in issue, there was a firm and definite order made by the Court giving the property to the Respondent. The order giving the Respondent the property can be seen at page 51 of the record of appeal, they come under group C of the heirs. And the judgment started from pages 48 to 55 wherein the judge signed and dated it the 29/12/2003. The Court categorically said the heirs all agreed to the sharing formula (page 48) so the sharing was consensual and the Court entered the sharing formula and titled it judgment which is within the record of proceedings registered by the Court below as judgment of a different jurisdiction. It is therefore evident that the judgment sought to be enforced is a valid consent judgment and the Appellants contention on this point is untenable. Per NIMPAR, JCA. read in context

5. Judgment of Court – When the position of the law on a Court not giving judgment against a person who is not a aprty to a suit is not applicable

Continuing, the Appellants by their issue five, is asking whether decisions of the Court can bind non parties. Here they are contending that the 1st Appellant was not a party to the decision upon which the Court below registered and granted leave for its enforcement. While I do agree that a Court cannot make an order that binds a non party, as is the settled position of law, this is not applicable in this case. See National Union Of Road Transport Workers & Anor v. Road Transport Employers Association Of Nigeria & 5 Ors (2012) 1 SC (Pt. 11) 119, Ogunkunle & Ors v. Eternal Sacred Order Of The Cherubim And Seraphim & Ors (2001) LPELR-2339 (SC). Per NIMPAR, JCA. read in context

6. Award of Cost – Discretion of court in awarding cost

On the next issue six, the Appellants challenged the award of cost which it alleged was punitive because the substantive application was merely to register a judgment which was a mere application. It is settled that cost usually follows event and its award is at the discretion of the Court. See the case of N.B.C.I. v. Alfijir (Mining) Nig. Ltd (1999) 14 NWLR (Pt. 638) 179.
Judicial discretion was defined in the case of Waziri v. Gumel & Anor (2012) LPELR-7816 (SC) as follows:

“Judicial discretion is a term applied to the discretionary action of a Judge or Court bounded by the Rules and Principles of Law not giving effect to the will or private opinion and not to humour. It is a discretion exercised judicially and judiciously. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice and common sense” per ADEKEYE, JSC.

Basically, when the Court acts according to rules of reason and justice, and according to that which is allowed by law then, the appellate Court ordinarily does not interfere. The ruling of the Court below did not state that the cost was punitive. The application was contested and the Court handed down a considered ruling, Courts have suggested a guideline on how to assess cost, see the case of Adelakun v. Oruku (2006) 11 NWLR (Pt. 992) 652 @ 650 which listed the guideline thus:

“a. the summons fees paid;

b. The duration of the case;

c. The number of witnesses called by the party victory;

d. The vexatious or frivolous nature of the action or defence of the party who failed in the litigation;

e. The cost of legal representation;

f. The monetary value at the time of incurring the expenses; and

g. The value and purchasing power of the currency of award at the time of the award.”

Except if there are materials showing something improper or adverse, or that the discretion was not properly exercised, it will be difficult for this Court to interfere with due exercise of discretion. Per NIMPAR, JCA. read in context


LEAD JUDGMENT DELIVERED BY NIMPAR, JCA


This appeal is against the ruling of the Lagos State High Court delivered on the 18th December, 2007 by HON. JUSTICE O. A. WILLIAMS dismissing the Appellant’s preliminary objection dated 12/12/2007 and awarding punitive cost of N25,000.00 (Twenty-Five Thousand Naira) against the Appellants. Dissatisfied with the ruling, the Appellants filed a Notice of Appeal dated 9th January, 2008 and filed on the same day. They also filed another Notice of appeal on the 16th January 2008 which was abandoned at the hearing.

Brief facts leading to the appeal arose from a proceeding at the Borno State Yerwa Civil Sharia Court 1 in Suit No. CV/NO/22/03 between the Estate of Late Alhaji Deribe & Anor v. Cavendish etroleum Nigeria Ltd & Anor. The Respondent brought an application to register the said judgment of the Sharia Court and the Appellant opposed the application by the filing of several processes which the Court below dismissed and granted the application to register the judgment and also recover possession.

Aggrieved by the decision, the Appellant filed the Notice of appeal setting out 2 grounds of appeal.

The Appellant’s extant Amended Brief is dated the 8th September, 2015 filed on the same day but deemed on the 8/6/16, it presented 6 issues for determination namely:

i. Whether the proceeding dated 30/1/2004 of the YERWA CIVIL SHARIA COURT 1 IN SUIT NO. CV/NO/22/03 between the Estate of Late Alhaji Deribe & Anor and Cavendish Petroleum Nig. Ltd and Anor qualify as a valid judgment competent of being registered and executed?

ii. Whether the Judge of the Court below can comment and act on a document not before it and not admissible in law?

iii. Whether the trial judge of the Court below can revisit a judgment which has been earlier set aside and upon which appeal she was not called to adjudicate?

iv. Whether the Court below was right to hold that properties capable of being inherited did not include shares?

v. Whether the decision of a Court of law can bind persons who are not made parties to that decision? vi. Whether the award of cost should be punitive?

The Respondent’s Brief is dated 20th February, 2017 filed on the 21/02/2017 wherein it formulated 4 issues for determination in this appeal namely:

a. Whether the Appellants can competently raise and successfully rely on a ground of appeal upon which an issue is formulated not connected in any way with the relief sought at the lower Court as well as the decision appealed against.

b. Whether the Court below did substantial justice by confirming from the records and documents before it that the judgment dated 29/12/2003 is still valid and subsisting and had not been set aside.

c. Whether the judgment registered by the lower Court can be enforced against the In Appellant.

d. Whether the lower Court rightly exercised its discretion in awarding a cost of N25,000.00 (Twenty-Five Thousand Naira) against the Appellant upon the application of the Respondent’s counsel.

Upon a careful consideration of the record of appeal, the briefs of both counsel and issues distilled herein, the Court shall adopt the issues formulated by the Appellant and they shall be determined in a seamless manner because the issues are questions that can be answered without any extensive and lengthy analysis. It shall be a seamless resolution of all the issues.

The contention of the Appellant under issue 1 is that the judgment registered and enforcement allowed cannot qualify as a valid judgment capable of being registered and enforced. The Appellants argue that none of the attributes of a good and valid judgment were present as the judgment failed to identify the issues for determination, evaluate the evidence adduced, make clear findings of fact and arrive at a definite conclusion. The Appellant further argued that all that is contained in the record of appeal are nothing but Court proceedings with no order or decision that can qualify as a judgment capable of being registered by the Court. Hence, the Appellants argued that the judgment ought to be declared invalid and set aside, they referred to the cases of C.P.C. v. Yuguda (2013) 7 NWLR (Pt. 1354) 450 @ 458, Ohakosin v. C.O.P. Imo State (2009) 15 NWLR (Pt. 1164) 229 @ 253, Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 408 @ 459, Ogboru v. Uduaghan (2012) 11 NWLR (Pt. 1311) 357 @ 385-386, Ushae v. C.O.P. Cross River State Command (2006) ALL FWLR (Pt. 313) 86 @ 112, Daramola v. A-G (2000) 14 WRN 120, Jenoc (Nig.) Ltd v. Nigerian Bottling Co. Plc (2002) FWLR (Pt. 105) 859 @ 888, Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24, Igwe v. Saice (1994) 8 NWLR (Pt. 536) 459 @ 450, Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461, Haruna v. University Of Agriculture, Makurdi (2006) 4 FWLR (Pt. 304) 432 @ 468 in support.

On the second issue, the Appellants submitted that the lower Court ought not to have relied on the Notice of Appeal in arriving at its decision considering the fact that the Notice of Appeal was unsigned and inadmissible, being a public document that is not certified, they referred to Edoziem v. Onwuzuruike (2005) FWLR (Pt. 290) 1597 @ 1602, Aribisala v. Ogunyemi (2001) FWLR (Pt. 31) 867 @ 2875, Onyali v. Okpala (2000) FWLR (Pt. 3) 515, Okoh v. Igwesi (2005) FWLR (Pt. 264) 891 @ 906, Nwaogu v. Atuma (2013) 11 NWLR (Pt 1364) 117 @ 137, Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671 @ 690, Abolarin v. Ogundele (2012) 10 NWLR (Pt. 1308) 253 @ 276. They further submitted that by virtue of Section 277 of the 1999 Constitution, it is the Sharia Court of Appeal of the State that has jurisdiction over matters arising from the Sharia Court and not the High Court of the State.

On the fourth issue, the Appellants argued that the entire suit dealt with the inheritance of property by the parties to the suit and that the issue of shares ought not to be separated from other landed properties considering the fact that shares is a property that can be assigned, referred to Inyang v. Ebong (2002) FWLR (Pt. 125) 703. With respect to issue five, the Appellants submitted that the 1st Appellant was not a party to the proceedings or Judgment at the Sharia Court of Appeal and so the execution of the judgment of the Court on the 1st Appellant is wrong and ought not to be allowed, they referred to Habib Nigeria Bank Ltd v. Opomulero (2000) 15 NWLR (Pt. 690) 315 @ 336, Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131 @ 60. Furthermore, the Appellants argued that to make an order for or against persons who have not been heard is unconstitutional, a denial of the 1st Appellant’s right to fair hearing and consequently, the judgment cannot be enforced against the 1st Appellant, relying on the case of Guinness (Nig.) Ltd v. Udeani (2000) 14 NWLR (Pt. 587) 367 @ 391 in support. Finally, the Appellants argued that award of N25,000.00 is highly outrageous, punitive, and unreasonable. They further submitted that the Court’s discretion was not properly exercised and that the Appellate Court will intefere with it, referred to Oyedeji v. Akinyele (2001) FWLR (Pt. 77) 970, Maya v. Oshuntokun (2001) FWLR (Pt. 81) 1777, Adelakun v. Oruku (2006) 11 NWLR (Pt. 992) 625 @ 650. In addition, the Appellants submitted that the Court erred in awarding costs against the Appellants which was not asked for, referred to Abdullahi v. Tasha (2001) FWLR (Pt. 81) 1807, Olusanya v. Osinleye (2013) 7 NWLR (Pt. 1367) 148 @ 170.

The Respondent in response argued that if the judgment of the lower Court is properly considered, it will become evident that the Appellants issue one is a fresh issue and not in any way connected with the reliefs at the lower Court. Consequently, the Respondent argued that since there is no application for leave to raise the said issue, same is incompetent and ought to be struck out, referred to Makanjuola v. Balogun (1989) NWLR (Pt. 108) 192 @ 206, Obioha v. Duru (1994) 10 SCNJ 48, Lebile v. Registered Trustees Of C & S (1986) 2 NWLR (Pt. 43) 494, Fatunbi v. Olanloye (2004) ALL FWLR (Pt. 225) 150 @ 168. Furthermore, the Respondent submitted that the Appellants’ issue one emanates from a combination of grounds 1 and 4 of the Notice of Appeal and that the particulars of the said grounds are at variance with the original prayers of the Appellants as contained in their Notice of preliminary objection. Thus, he argued that the grounds are incompetent as they do not arise from the decision appealed against and referred to Co-Operative & Commerce Bank Plc v. Ekperi (2007) 4 MJSC 172 @ 185, Azaatze v. Z Gor (1994) 5 NWLR (Pt. 342) 76 @ 83. The Respondent further submitted that the Appellants ought not to confuse this Court with the judgment registered by the Court below, i.e., the Judgment by Yerwa Civil Sharia Court 1 made on the 29/12/2003 by Alkali Mohammed.

Specifically addressing issue one, the Respondent submitted that a valid and subsisting judgment was registered and that the judgment is one capable of being executed, he referred to AGF v. Abubakar (2007) 6 MJSC 1 @ 28. He also submitted on this point that the Appellants failed to challenge the validity of the Judgment at the lower Court. He submitted that the judgment contained the requisites of a good judgment and being a consent judgment, it ought to be upheld.

On issue 2, the Respondent submitted that the lower Court examined the Court processes and attached exhibits in order to do substantial justice in the case. He further argued that the exhibition of the Notice of Appeal by the Respondent did not introduce any new fact or occasion any miscarriage of justice but rather it assisted the Court in ascertaining the veracity or otherwise of the Appellant’s claim. He further argued that the Appellants failed to question the accuracy or validity of the Notice of Appeal at the lower Court, referred to Yesufu v. Kupper International N.V (1995-1996) ALL NLR VOL. 3

544 and that the Appellants cannot complain that the reliance placed by the lower Court on the Notice of Appeal occasioned a miscarriage of justice, he cited Ibator v. Barakuro (2007) 7 MJSC 188 @ 192 in support.

The Respondent further submitted that the Appellants’ issue 2 is a fresh issue for which leave ought to have been first sought for. He further argued that assuming the learned trial judge was wrong in commenting on the Notice of Appeal before it, by virtue of Section 251 (1) of the Evidence Act, the wrongful admission shall not in itself be a ground for the reversal of the decision considering the fact that even without the Notice of Appeal, the decision of the lower Court will not have been any different and referred to Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616, State v. Ogbubunjo (2001) FWLR (Pt. 37) 1097 @ 1123, Nkoko v. Akpakpa (2000) 7 NWLR (Pt. 664) 225. On the Appellants issue three, the Respondent submitted that contrary to the submissions of the Appellants, the lower Court never delved into the substance-of the judgment of 29/12/2003 sought to be enforced and cannot be accused of revisiting the judgment.

The Respondent argued that the issue posed in the Appellants issue four is strange and ought not be considered in view of the fact that this Court is not sitting on appeal against the ruling of the said Upper Sharia Court and therefore cannot consider the issues therein. The Respondent also submitted that the order of the Court is good against the whole world and can therefore be enforceable against the 1st Appellant. Finally, the Respondent submitted that the discretion of the Court in awarding costs was properly exercised and should not be tampered with, he referred to Olumegbo v. Kareem (Supra), Oto v. Adojo (2004) ALL FWLR (Pt. 203) 2151 @ 2178.

RESOLUTION

Let me start with the subtle objections raised by the Respondent. The Respondent challenged grounds 1 and 4 of the Notice of appeal which also generated issue one. He contended that the grounds are at variance with the prayers contained in the Appellants Notice of Preliminary objection and do not arise from the decision appealed against.

A close look at the Appellants issue one will show that they challenged the validity of the proceedings/judgment of 30/12/2004 at pages 15-76 of the record of appeal. The said pages start with the Certificate of ownership duly issued by the Sharia Court after the sharing of the estate of the deceased Alhaji Deribe to his heirs and it contains proceedings of different dates including the 29/12/2003 wherein the sharing to individual groups is reflected. The proceedings of 30/22/2004 are the resumed sitting of the Court with the proceedings of the day. The issue addressed that day was that of money withheld by one of the heirs of the estate and the Court noted the refusal of the heir to handover a certain sum of money to the Respondent and two others. The Court went on to state that it will take the sum withheld from the money in the custody of the Court and give to the Respondent and the two others who are entitled to the said sum of money, it said thus:

“The Court has observed if up to Friday 31st December, 2004 the money is not handed over to the Court, the Court will take from the money in her possession and give Mohammed and Abatcha, the sum of $ 2,500 equal 1,750,000 each and the remaining shares of the other two boys will be discussed in the next sitting and this is the order of the Court.

Signed judge 30/12/2004″.

It is clear therefore that this was the basis of the Appellant’s application as clearly seen at pages 89-90 of the record of appeal. The issue of the order made on the 29/12/2003 is therefore not part of the application made at the Court below by the Appellant and is therefore a new issue which was raised without leave and this is against the grain of the law, see Nwachukwu v. The State (2007) ALL FWLR (Pt. 390) 1380 @ 1402.

The consequence of raising a fresh issue without leave is to strike out the issue and discountenance same. The issues to be determined in an appeal must arise from the claim at the trial Court, whether they are of law or fact. Furthermore, where a ground of appeal does not arise from the decision appealed against, it also lacks the life to generate an issue. It is incompetent and must be struck out, see C.C.B. Plc v. Kperi (2007) 3 NWLR (Pt. 1022) 493 @ 509. It must have come up for consideration at the Court below and this was not the case here. The order made on the 29/12/2003 was not considered instead what was the bone of contention was the proceedings of 30/12/2004. The two are not the same and cannot be interchanged also. The first issue is therefore struck out. However, the Court shall in the alternative proceed to determine the issue considering that the issue has a jurisdictional slant to it because if a judgment is a nullity then the Court could not have acted on such thereby denying the Court of competence. On that ground alone, I shall determine the issue.

The initial challenge relates to the judgment registered which generated this appeal. The contention is that the said judgment did not qualify as a valid judgment competent to be registered. First, it is the practice of a democracy which operates federal system of states that judgments delivered in Court of one State can be registered for enforcement in another state, see Sections 104 and 105 of the Sheriff and Civil Process Act which provides for registration of judgments of other jurisdictions. The law provides thus:

“S.104 Any person in whose favour a judgment is given or made in a Court of any State or the Capital Territory may obtain from the registrar or other proper officer of such Court a certificate of such judgment in the form and containing the particulars set forth in the second schedule or as near thereto as the circumstances will permit, which certificate such officer is hereby required to grant under his hand and the seal of such Court.

S.105(1) Upon production of such certificate to the registrar or other proper officer of any Court of like jurisdiction in any other state or the capital territory such officer shall forthwith register the same by entering the particulars thereof in a book to be kept by such officer and to be called the Nigerian Register of judgment.

(2) From the date of registration the certificate shall be a record of the Court in which it is registered, and shall have the same force and effect in all respects as a judgment of that Court, and the like proceedings may be taken upon the certificate as if the judgment had been a judgment of that Court.”

The provision for the registration of a judgment in respect of an immovable property and the procedure before execution is covered by the above quoted provision and Section 108 of the Act. The Court in which any such certificate was enforced will have control and jurisdiction over the judgment as if it is the judgment of such Court, see Skye Bank (Nig.) Plc v. SEPH Investment Limited & Ors (2016) LPELR- 40296 (CA). So the registration of judgments is a valid and acceptable practice.

The issue here is that what was registered as judgment of a Sharia Court does not qualify as such because the essential parameters are lacking. There is a presumption that for any enforcement, the judgment must be valid. The description of a valid judgment has received judicial attention, see the case of A. G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (Pt. 1041) 1 which said thus:

“Some of the constituent parts which a good judgment must contain, shall include:

i. The issues or questions to be decided in the case;

ii. The essential facts of the case of each party and the evidence in support;

iii. The resolution of the issues of fact and law raised in the case;

iv. The conclusion or general inference drawn from facts and the law as resolved;

v. The verdict and orders made by the Court.”

See also C.P.C. v. Yuguda (2013) 7 NWLR (Pt. 1354) 450 @ 458.

It is not the rule that a Court must state or name the different stages of the judgment and the requirements may not all be present in certain situations. Judgment writing has been known to depend on individual style or slant as every judge has his peculiar style of writing judgments so there is no particular way to write a judgment as long as the essential elements be present, to particularly determine the issues in controversy between the parties. There is no rule of the thumb as it were for a good judgment. However, a judgment should ordinarily demonstrate in a dispassionate manner a consideration of all issues raised at the trial and those that logically flow from such exercise, see Ayinde Adeyemo v. Okunola Arokopo (1988) SCNJ 1 @ 15 and Polycarp Ojogbue & Anor v. Ajie Nnubia & Ors (1972) 7 ALL NLR (Pt. 2) 226.

My learned brother, GUMEL, JCA gave a good and illuminating distinction between a good and valid judgment in the following way:

“As a background, I wish to state that it is no longer in doubt that writing a judgment is an art and as such each judge is entitled to and free to follow his own style in achieving the end result of a good judgment. It is however important to emphasize that there is a whole world of difference between a valid judgment and a good judgment. A valid judgment may not necessarily be a good judgment while a good judgment may not necessarily be a valid one. For example, the test of validity of a judgment may be determined by the prescriptive provisions of the Constitution under S.294 (1) where it ought to be delivered, within 90 days after conclusion of final addresses on behalf of the parties. If a judgment were to be delivered outside this benchmark period it may or may not be invalid and a nullity based upon the view of an appellate Court if it did or did not occasion a miscarriage of justice to a complainant against it. It may be invalid on that account while still being a good judgment upon a consideration of its full contents. A judgment may ex-facie be good but all the same be invalid for example if it was a judgment of an appellate Court that was delivered by a number of justices that fell short of the minimum number stipulated by the Constitution and the laws establishing such appellate Courts. Though learned counsel to the Appellant had copiously been referring to the judgment of the lower Court in this appeal as invalid, he could not sufficiently show how invalid it is based on any of the very well known and settled grounds upon which a judgment can be set aside or declared a nullity for being invalid. From all the submissions of learned counsel to the Appellant there is no doubt that his complaint against the judgment of the lower Court is as to its quality and not validity. See Chikanwomeh v. State (2013) LPELR-20901(CA).

The Appellant in this appeal contends that the essential elements are missing from the judgment registered in Lagos High Court of Justice for enforcement. It is trite to state that the case emanated from the Sharia Court in Borno and as expected, it is the issue of sharing of the inheritance of the deceased Alhaji Deribe amongst his wives and children under Islamic Law. One clear difference is that it cannot follow the pattern obtainable in regular Courts/suits and therefore, it is illogical to expect that a judgment from a Sharia Court will take the pattern of common law format of titling suits and the style of resolution. Going through the record of proceedings for the 29/12/2003 which was tagged judgment, it is clear that the judge negotiated the settlement and distribution amongst the beneficiaries, it was a consented distribution but one obvious thing was that it made definite orders in what goes to whom. The record shows that the exercise was still ongoing when the record of proceedings was registered for enforcement. It is obvious that the property in issue here had been shared and given to the Respondent with a definite order made in respect of same. The Appellants dilemma is understandable because some of the features of a typical common law judgment were missing, however, considering the Court from where the process emanated it is forgivable if it fails to adhere to the common law standard. Sharia law has its peculiarities which cannot stand the test of common law standards. The law and practice are completely different and understandably so.

There is a difference between the case of Abubakar v. Nasamu (Supra) relied upon by the Appellants and this case. For a start, that was an election petition matter and the judgment set aside did not give reasons for arriving at the said judgment which was also given outside the 60 days constitutionally allowed, a fundamental defect. Secondly, election petitions are sui generis and have its peculiarities that cannot be transplanted into regular cases. And I also say that Sharia proceedings are conducted according to Islamic Law which also has its nuances that cannot be judged by the standard of regular proceedings.

One striking feature is that concerning the property in issue, there was a firm and definite order made by the Court giving the property to the Respondent. The order giving the Respondent the property can be seen at page 51 of the record of appeal, they come under group C of the heirs. And the judgment started from pages 48 to 55 wherein the judge signed and dated it the 29/12/2003. The Court categorically said the heirs all agreed to the sharing formula (page 48) so the sharing was consensual and the Court entered the sharing formula and titled it judgment which is within the record of proceedings registered by the Court below as judgment of a different jurisdiction. It is therefore evident that the judgment sought to be enforced is a valid consent judgment and the Appellants contention on this point is untenable.

The next aspect of the appeal is the contention that the Court below commented and acted on a document, not before it and one which is not admissible in law, it is found at pages 206-209 of the record of appeal. The document in contention is the alleged Notice of Appeal purportedly filed against the decisions of the Yerwa Sharia Court Maiduguri, and the decisions are those of 29/12/2003 and 30/12/2004. The document was attached as exhibits to processes filed in opposition to the Preliminary Objection. The Court below examined the substance of attached documents to arrive at the finding that the decision of 29/2/2003 was not appealed against. In arriving at the decision of 18/12/2007, the Court below, riding on the invitation of the Appellants to consider the Preliminary Objection found that the substance of the Notice of Appeal had nothing to do with the decision registered and upon which execution was sought to be carried out. These also were the substance of the Counter affidavit of the Respondent herein. The arguments in the Appellants written address before the Court below also dwelt so much on the Notice of appeal and grounds therein which they contended challenged the decision of the 23/12/2003. The Respondents exhibited the Notice of Appeal to reinforce their position that the decision of 23/12/2003 was not set aside.

The question of the admissibility of the Notice of Appeal is neither here nor there because the said document was an exhibit in the application considered. A Court of law can take notice of a document in its file even where it was not tendered before it and can do so suo motu, see Abiodun v. Attorney General Of The Federation (2007) LPELR-8550 (CA) wherein SANKEY, JCA held:

“In respect of the issue of the use to which the learned trial judge put the affidavit of the 2nd and 3rd defendants even after they had been struck out as parties before the Court, it goes without saying that a Court is entitled to look at all documents contained in the case file, which are not made part of the application under consideration if such documents will lead toward doing justice in between the parties before it.” See also Fumudoh v. Agoro (1991) 9 NWLR (Pt. 214) 210; Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Attorney General Of The Federation v. RALPH UWAZUIKE & ORS (2006) LPELR-11858 (CA).

Furthermore, the veracity and accuracy of the Notice of Appeal was not put in issue before the Court below and having waived its right to challenge the said Notice of Appeal, it cannot be resurrected at this stage of the proceedings. In fact, the Appellant’s counsel relied on the said document in his submissions before the ourt below, see pages 262-263 of the record of Appeal. I do not see the miscarriage of justice occasioned by the Court below in looking at the said Notice of Appeal and using it to arrive at a decision.

The Respondent argued that the issue is a new issue raised without leave. On this, I disagree because the Court used the said document to arrive at the decision. In challenging the decision, a party can impeach the foundation of the decision as being done here. The issue in contention basically is the execution of the order of the Sharia Court giving the property in question to the Respondent. It had nothing to do with the shares of the 1st Appellant and by using the Notice of Appeal, the Appellants case was not affected and no miscarriage of justice was occasioned. How if any, was not established by the Appellants here, this being so because the averments of the Respondent which were not denied were also on the essence of what the alleged illegal document was sought to establish. Without the document, the Court could still have arrived at the same decision. The Court rightly viewed the Notice of Appeal and came to a decision, see pages 268-270 of the record of appeal. Consequently, issue two is resolved against the Appellants.

Following the complaint above is the issue whether the Court below could revisit a judgment set aside. The alleged judgment set aside is not mentioned in the submissions of counsel but looking at the record of appeal and the briefs of counsel, the Appellants are referring to the decision of the 29/12/20 3. They alleged that it was set aside by the Sharia Court of Appeal in Appeal No. BUSCI/CVA/122/2005. The records of that proceeding are at pages 155-191 of the record of appeal.

The judgment of the Sharia Court of Appeal there is strictly in respect of the decision of 30/12/2004 and even from the onset, the Appellants counsel made it clear that it was the decision of 30/12/2004 that was appealed against. And going through the proceedings of the Upper Sharia Court, it was only the proceedings of 30/12/2004 that was set aside on want of jurisdiction due to the subject matter being a dispute on the shares of a private company, the 1st Appellant herein. The decision of 29/12/2003 was not set aside and the trial Court therefore did not sit over a decision that was set aside. The contention of the Appellants in the face of clear record is preposterous and unfortunate coming from a counsel who is expected to assist the Court arrive at doing justice between parties and resolving issues between the parties. This issue is resolved against the Appellants.

Issue four is questioning whether the trial judge was right to hold that properties capable of being inherited did not include shares. The initial subject matter was on the distribution of estate of a deceased man to his heirs according to Islamic law. Before proceeding further, it would necessary to put straight the contention of the Appellants that the entire distribution of the estate as done by the Civil Sharia Court was set aside on appeal. I found earlier that what the Upper Sharia Court set aside was the proceedings of 30/12/2004 and not the entire distribution, the bulk which was done on the said 29/12/2003 and by consent of all the beneficiaries was not affected by the appeal. The distribution which touched on the shares of the 1st Appellant was set aside by the Upper Sharia Court, see page 190 of the record of appeal. The said Upper Sharia Court couldn’t have set aside what was not before it. Even counsel to the Appellants before the Upper Sharia Court told the Court (see last paragraph of page 180) that they were urging the Court to set aside the distribution of estate done on the 30/12/2004. That is evidently clear on the record. It is therefore surprising that counsel would turn round to argue otherwise. The record of what was considered by the Upper Sharia Court is backed by record which was attached to the Preliminary Objection and therefore the Court could view and know what was before the Court. The record of that Court is clear and explicit. The issue is not made out and is hereby resolved against the Appellants.

Continuing, the Appellants by their issue five, is asking whether decisions of the Court can bind non parties. Here they are contending that the 1st Appellant was not a party to the decision upon which the Court below registered and granted leave for its enforcement. While I do agree that a Court cannot make an order that binds a non party, as is the settled position of law, this is not applicable in this case. See National Union Of Road Transport Workers & Anor v. Road Transport Employers Association Of Nigeria & 5 Ors (2012) 1 SC (Pt. 11) 119, Ogunkunle & Ors V. Eternal Sacred Order Of The Cherubim And Seraphim & Ors (2001) LPELR-2339 (SC).

The decision registered was the decision of 29/12/2003 and not 30/1 / 04. It was also the decision wherein landed properties and cash were distributed according to Sharia law. That decision did not distribute nor mention anything concerning the 1st Appellant’s shares. It was a consent judgment too having been agreed to by all the beneficiaries. The 1st Appellant was not a beneficiary and was also not part of the assets shared that day. The Appellants are playing the ostrich but records do not lie. All through the distribution as handled by Sharia Court judges, it was only the proceedings of 30/12/2004 that had something to do with the 1st Appellant and since the application which gave rise to this appeal was simply one for execution of the certificate of ownership of a house distributed and assigned to the Respondent on the 29/12/2003, the Court did not make any order that should bind the 1st Appellant, except if it is in occupation of the property and even at that, it should take appropriate steps to protect its interest, merely as occupant. If however, the 1st Appellant claims to be the owner of the property then, it should also take appropriate steps to protect its interest. The house was shared as part of the estate of the deceased Alhaji Ahmadu Deribe and not as a property belonging to the 1st Appellant. There is a certificate of judgment which can be seen at pages 15 of the Record of appeal and which was issued pursuant to the distribution of 29/12/2003. It is directed at No. 22 Adeleke Adedoyin Street, Victoria Island, Lagos. It was owned by the deceased and the certificate upon registration in Lagos can be executed. Flowing from above, issue five is also resolved against the Appellants.

On the next issue six, the Appellants challenged the award of cost which it alleged was punitive because the substantive application was merely to register a judgment which was a mere application. It is settled that cost usually follows event and its award is at the discretion of the Court. See the case of N.B.C.I. v. Alfijir (Mining) Nig. Ltd (1999) 14 NWLR (Pt. 638) 179.

Judicial discretion was defined in the case of Waziri v. Gumel & Anor (2012) LPELR-7816 (SC) as follows:

“Judicial discretion is a term applied to the discretionary action of a Judge or Court bounded by the Rules and Principles of Law not giving effect to the will or private opinion and not to humour. It is a discretion exercised judicially and judiciously. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice and common sense” per ADEKEYE, JSC.

Basically, when the Court acts according to rules of reason and justice, and according to that which is allowed by law then, the appellate Court ordinarily does not interfere. The ruling of the Court below did not state that the cost was punitive. The application was contested and the Court handed down a considered ruling, Courts have suggested a guideline on how to assess cost, see the case of Adelakun v. Oruku (2006) 11 NWLR (Pt. 992) 652 @ 650 which listed the guideline thus:

“a. The summons fees paid;

b. The duration of the case;

c. The number of witnesses called by the party victory; d. the vexatious or frivolous nature of the action or defence of the party who failed in the litigation; e. the cost of legal representation;

f. The monetary value at the time of incurring the expenses; and

g. the value and purchasing power of the currency of award at the time of the award.”

Except if there are materials showing something improper or adverse, or that the discretion was not properly exercised, it will be difficult for this Court to interfere with due exercise of discretion.

Furthermore and most fundamentally, there cannot be an appeal against cost without leave of Court. No leave was sought to appeal against cost here and therefore, this issue must be discountenanced as it is incompetent, see Adewunmi & Ors v. Oketade (2010) LPELR-163 (SC) which held as follows:

“It is trite that appeal does not lie as of right against an award of cost by a Court.”

See also Unifam Industries Ltd v. Oceanic Bank International (Nig.) Ltd (2005) 3 NWLR (Pt. 911) 83 @ 102.

Consequently, this issue is hereby struck out.

In all, the appeal is completely bereft of merit and is hereby dismissed. The decision of the Lagos State High Court by HON. JUSTICE O. A. WILLIAMS made on the 18th of December, 2007 is hereby affirmed.

N50,000 cost awarded in favour of the Respondent.

GEORGEWILL, JCA

I had the privilege of reading in draft the lead judgment of my lord YARGATA BYENCHIT NIMPAR J.C.A. just delivered with which I agree and adopt as mine. I have nothing more to add.

TUKUR, JCA

I read before now the draft copy of the lead judgment just delivered by my lord YARGATA BYENCHIT NIMPAR, J.C.A. and I agree that the Appeal lacks merit and I also join my brother in dismissing same and I abide by the consequential order made therein.

Appearances:

NIL For Appellant(s)

Chidi Ike with him, Destiny Donald Igwe and C. J. Eze For Respondent(s)