Legalpedia Citation: (2023-06) Legalpedia 19451 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Wed Mar 22, 2023

Suit Number: CA/K/436B/C/2017

CORAM

Mohammed Baba Idris JCA

PARTIES

ALH. SANUSI DAN KAWU

APPELLANTS

1. ATTORNEY GENERAL OF KATSINA STATE
2. ALHAJI BELLO MANI

RESPONDENTS

AREA(S) OF LAW

APPEAL, CIVIL LAW AND PROCEDURE, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The trial took place at Zamfara State High Court and the judgment was registered as the judgment of the Katsina State High Court. Upon the registration of the judgement, a writ of attachment and sales of movable properties of the 1st Respondent was issued and the machinery of executing the said judgment was set in motion which prayed for stay of execution and injunction which was argued and adjourned for ruling.

The 2nd Respondent stated that while they were waiting for the ruling of Court to be delivered, the 1st Respondent (not before this Court) instructed the 2nd Respondent (not before this Court), the 3rd Respondent (The Appellant) and the 4th Respondent (not before this Court) to remove/evacuate all stock of its fertilizer at its stores at Unguwar Shanu, Funtua. And that the Respondents engaged over twenty trucks to remove the fertilizer to an unknown destination.

The 2nd Respondent stated further that the act of the Respondents is contemptuous of the authority of the lower Court and liable to be redressed by an action for committal.

When giving its ruling, the lower Court granted the reliefs sought by the 2nd Respondent in his application.

Aggrieved by the decision, the 3^rd Respondent (Appellant) made the instant appeal.

HELD

Appeal allowed

ISSUES

Ø  Was there an attachment of any property of Olam Nigeria Ltd as required by law for the purpose of realizing the judgment in Suit No. ZMS/GS/11/2004 which attachment the Appellant could be said to have interfered with in a way amounting to contempt of Court?

Ø  Given that the acts alleged against the Appellant to constitute contempt of Court did not take place in the face of the Court, was the learned Judge right in assuming jurisdiction to hear the alleged contempt instead of declining jurisdiction so as to enable a proper criminal trial of the Appellant before another judicial officer?

Ø  Was there evidence sufficient to ground the conviction of the Appellant for contempt?

Ø  What is the effect of the absence of the Appellant during the committal proceedings on the said proceedings?

RATIONES DECIDENDI

EXECUTION OF JUDGMENT – MEANING OF EXECUTION OF JUDGMENT

In the case of TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 592) AT 608, execution of judgment is defined as:

“…the process whereby a judgment or order of Court is enforced or given effect to according to law.” (Emphasis provided)

The execution of a judgment thus encompasses the enforcement of the various writs provided under the laws for giving effect to a judgment and the most comprehensive laws governing enforcement of judgment are the Sheriffs and Civil Process Act, Cap S6, LFN 2004 and the Judgment (Enforcement) Rules. – Per M. B. Idris, JCA

EXECUTION – EXECUTION OF JUDGMENT

The judgment referred to for execution in this instant appeal is the judgment delivered by the Zamfara State High Court in Suit No: ZMS/GS/11/2004 between ALH. BELLO MANI SAMBO VS. OLAM NIGERIA LIMITED and to be executed in Katsina State. The Constitution has made provision for this under Section 287(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that:

“The decisions of the Federal High Court, National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, National Industrial Court, a High Court and those other Courts, respectively.”

Then Sections 104 – 110 of the Sheriffs and Civil Process Act make provisions for the process of enforcement of judgment gotten as provided for under Section 287(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 105 of the Sheriffs and Civil Process Act provides:

“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 Nigeria Register of judgment’.

2. From the date of registration, the certificate shall be a record of the Court in which it was registered and shall have the same force and effect in all respect 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.”

​From the above provisions, it therefore follows that:

“a. The judgment creditor applies to obtain a certificate of the judgment from the Registrar of the Court that delivered the judgment which must be signed and sealed by the Registrar.

1. The judgment creditor takes the certificate of judgment to the enforcing State and registers it with the Registrar of a Court of similar jurisdiction in that State which shall be the enforcing Court. The Registrar of the enforcing Court registers it by entering the particulars in the “Nigeria Register of Judgments” and it is upon registration that the Court can now deal with it as its own judgment.”

By Section 107 of the Sheriffs and Civil Process Act, the judgment creditor must depose to an affidavit stating:

“1. The amount in the process has become paid or unpaid

2. The act ordered to be done remains undone; or

3. The person ordered to forebear from doing an act has disobeyed the order.”

The judgment creditor then applies for the appropriate execution process and it is executed. After the execution, the Registrar of the enforcing Court shall notify the Registrar of the Court that delivered the judgment that the judgment has been satisfied in whole or in part. The judgment creditor is expected to do this by filing a report under the seal of the Court. However, by Section 109 of the Sheriffs and Civil Process Act, upon an application of the judgment debtor, the Court can grant a stay of execution on such terms as to giving security, or as to making application to the Court by which the judgment was delivered or made, to set aside same or otherwise as the Court may deem fit. – Per M. B. Idris, JCA

DOCUMENTS – DOCUMENTS EXHIBITED TO AN AFFIDAVIT ARE ALREADY EXHIBITS

It is trite that documents exhibited to an affidavit are already exhibits before the Court, being part of the affidavit evidence which the Court is entitled to look at and use. See the case of BRITISH AMERICAN TOBACCO NIG. LTD VS. INTERNATIONAL TOBACCO CO. PLC (2013) 2 NWLR (PT. 1339) PAGE 493 AT 520 – 521. – Per M. B. Idris, JCA

 

BURDEN OF PROOF – PARTY DEPENDING ON EXISTENCE OF FACTS SHALL PROVE THAT THOSE FACTS EXIST

It is trite that a party who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exists. See Section 131 of the Evidence Act, 2011. – Per M. B. Idris, JCA

RECORD OF APPEAL –APPELLATE COURT HEARS AN APPEAL BY EXAMINATION OF RECORD OF APPEAL

It is also trite that an Appellate Court rehears an appeal by the examination of the Record of Appeal which is a documentation or reproduction of all that occurred in the Court from which the appeal emanates. See the case of N. I. W. A. VS. S. P. C. N. LTD (2011) 6 NWLR (PT. 1244) 618. – Per M. B. Idris, JCA

RECORD OF APPEAL – MEANING OF RECORD OF APPEAL

The Record of Appeal is a picture of all material aspects of the proceedings from evidence, events, rulings, orders, judgment and all relevant aspects of the proceedings that will enable the Appellate Court effectively determine the appeal and the need to compile (reproduce what already exists), a comprehensive record of appeal cannot be overemphasized

…this Court cannot work with an incomplete record of appeal. – Per M. B. Idris, JCA

TRIAL COURT – DUTY OF THE TRIAL COURT

…Even at the lower Court, it was also the duty of the trial Court in evaluating the evidence before it, to ensure that its order for the issuance of a writ of attachment and sales of the movable property of the Judgment Debtor was complied with before going ahead to commit the Appellant to prison for contempt. – Per M. B. Idris, JCA

BURDEN OF PROOF – WHEN THE BURDEN OF PROOF SHIFTS

It is trite that it is only when the burden is met by the initiating party that it can be said that the burden of proof is shifted to the defendant who is to provide defence. Contempt being a criminal charge, the burden of proving it is on the applicant and he must prove the allegations contained in the affidavit in support of the application for contempt beyond reasonable doubt. See the case of ONAGORUWA VS. ADENIJI (1993) 5 NWLR (PT. 293) 317 AT 325. Since contempt proceedings affect the liberty of the individual, the law expects strict compliance with the procedural rules. See the case of EZEJI VS. IKE (1997) 2 NWLR (PT. 486) 164 AT 221. – Per M. B. Idris, JCA

COMMITTAL PROCEEDING – MEANING AND NATURE OF COMMITTAL PROCEEDING

A committal proceeding by its nature is a legal enforcement mechanism used to mandate the compliance with a validly existing and enforceable order, undertaking or directive of the Court. Therefore, the foundation for any committal proceedings is a disobedience of a valid, existing, and enforceable order of the Court. – Per M. B. Idris, JCA

NON-PARTY – NO COURT CAN EXECUTE AN ORDER AGAINST A NON-PARTY

In addition, it is clear from the same Exhibit 1, that the judgment of the Zamfara State High Court sought to be registered, was between ALHAJI BELLO MANI SAMBO VS. OLAM NIGERIA LIMITED and the order of the trial Court is against OLAM NIGERIA LIMITED & 1 OR. Who the 1 OR is, is not clear from the record but one thing that is certain is that, no Court can execute an order against a non-party before it. It was wrong on the part of the lower Court to have done so only for it to now on the premise of a Motion on Notice for an order of committal to  prison for contempt and upon which the Appellant appeared for the first time as party, commit the Appellant to prison for contempt of which there is no sufficient proof or due compliance to procedure on the part of the 2nd Respondent. – Per M. B. Idris, JCA

CASES CITED

STATUTES REFERRED TO

1. High Court (Civil Procedure) Rules Cap 60, Laws of Katsina State 1991
2. Penal Code of Katsina State
3. Sheriffs and Civil Process Act
4. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
5. Evidence Act, 2011
6. Judgment (Enforcement) Rules

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