BILKISU SADIQ ABDALLAH GASHASH v. BASAM JABER & ANOR
(2014) LCN/6991(CA)
RATIO
APPEAL: WHETHER AN APPEAL IN A MATTER OUST THE JURISDICTION ON A TRIAL COURT TO HEAR AND DETERMINE A CLAIM NOT DIRECTLY RELATED BY THE APPEAL FILED
Section 6 (1) (2) (3) (5) (9) of the 1999 Constitution, as altered, makes a Sharia Court of Appeal of a state a superior court of record. The judgment of the Sharia Court of Appeal affirming the judgment of the upper Sharia Court vesting the disputed premises in the appellant whether it was decided rightly or wrongly, subsists and may be relied upon in a subsequent action and must be respected for the period it is in force, until set aside by the Court of Appeal (the appropriate court.) vide Babatunde v. Olatunji (2000) F.W.L.R. 874 or (2000) 2 S.C.N.J page 26.
Further, in the case of Abiola and Sons Bottling Company v. Seven-up Bottling Company Ltd. and Ors. (2012) 7 S.C. (pt.11) 83 or (2012) 15 NWLR (pt. 1322) 184, the Supreme Court held that a judgment of a superior court subsists until it is set aside by a court of competent jurisdiction and, that, in any event, an appeal against the judgment cannot operate as a stay of execution of the judgment appealed against. See in particular the pertinent words of Ngwuta, J.S.C., in his judgment in page 203 of the (2012) 15 NWLR (pt. 1322) law report as follows – “It is immaterial that either of the cases is on appeal. A judgment of court subsists until it is set aside by a court of competent jurisdiction and in any case, it is trite that an appeal cannot operate as a stay of execution. See Vaswani Trading Co. Ltd. v. Savalakh (1972) 12 SC 77 at 82”.
The Supreme Court has spoken! It follows surely as the sunshine that a subsequent action interrated with the said judgment may be maintained or built upon on the new action by the successful party on the judgment as an act of possession and/or evidence of ownership of the res covered by the previous judgment, notwithstanding the defendant was not a party to the previous judgment vide: Udeze and Ors. v. Chedebe and Ors. (1990) 1 SCNJ 104 at 113 – 115 where the Supreme Court held per the lead judgment of Nnaemeka-Agu, J.S.C., (of blessed memory) that – “It may turn out that, as is the case here, although there was a valid and subsisting judgment on the same subject matter as at present in litigation the present defendant cannot take advantage of it as res judicata either because the issues are not the same or because the right and capacity in which the instant suit is being fought is not the same with those in the previous suit even if the subject matter is the same. It does not mean that the previous suit is completely valueless for purposes of the instant suit. It certainly goes to strengthen the respondent’s case in the present contest: James Uluba v. Chief Sillo (1973) 1 S.C. 37. Ajuwa v. Odili (1985) 2 N.W.L.R. 710. Certainly, the successful assertion of communal title in Ifite Nteje in that previous suit is an important act of possession which the parties thereto can now take advantage of, along with other facts established by evidence. For this see further: Kobina Ababio 11 v. Priest De-Charge, Catholic Mission (1935) 2 W.A.C.A. 380, pages 381 – 382.” (My emphasis). See also the cases of Okafor and Ors. v. Obiwo and Anor. (1978) 9 – 10 S.C. 115, Chikwendu v. Mbamali (1980) 3 – 4 S.C. 31 at 50, Ojiako and Ors. v. Ogueze and Ors. (1962) All N.L.R. 58 at 62, Adomba v. Odiese (1990) 1 S.C.N.J. 135 at 143 (paragraph 5). Per Joseph Shagbaor Ikyegh, J.C.A
