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In
The Supreme Court of Nigeria On
Friday, the 2nd day of February 1990 SC 52/1983
Before
Their Lordships
Between
And
Judgment
of the Court Delivered by Wali.
J.S.C.
The
present respondent Chief G. I. Ezekiel Hart who was the plaintiff in the trial
court sued James E. P. Hart in the High Court of Rivers State of Nigeria in the
Port Harcourt Judicial Division claiming as follows-
PARTICULARS
OF CLAIM
1.
A
declaration that he is entitled to the possession or custody and control
of all property real and personal of the said Chief Ezekiel Hart (deceased).
2.
Delivery
up to the plaintiff by the defendant of:-
(a)
the
keys of the family house at Bonny and of the family house at Creek Road, Port
Harcourt. together with the family property in the said houses contained, which
keys and property together with inventory were handed over by the plaintiff to
the defendant for safe custody on or about 5th January, 1975, following the
death of Chief Benoni Ezekiel Hart.
(b)
Deed
Box containing deeds, indentures or instruments in respect of 41 Creek Road,
Port Harcourt aforesaid, and of the
family lands situate at Obigho, Komkom, Azuama and B. Dere, all in the Bori
Local Government Authority Area, which box, together with the deeds, indentures
or instruments, was also handed over by the plaintiff to the defendant on or
about the date aforesaid.
3. N2,000.00 general damages for the detention of the said keys, property and deed box, deeds indentures or instruments despite demands.
Later, on
the application of other persons, namely, Louis Benoni Ezekiel Hart and Estella
Benoni Ezekiel Hart for themselves and other children of Ezekiel Hart and Benoni
Ezekiel Hart] were joined as second set of defendants.
Pleadings
were ordered, filed and exchanged and issues joined.
At the end of the proceedings, judgment was given in the plaintiff/respondent's favour with the following orders by the learned trial
Judge -
1.
I
grant the plaintiff the declaration he seeks that as Chief or Head A of the
Ezekiel Hart House he is entitled to the custody and control of all property
real and personal of the said Chief Ezekiel Hart (Deceased).
2.
I
give judgment for plaintiff for the delivery up to him by the 1st defendant of
the keys of the family Houses at Bonny and the family house known as No.41
Creek Road, Port Harcourt, together with the family property in both houses
contained.
3.
I
am unable to make an order in respect of the Deed Box, as the claim for its
return is based on Exhibit 'H' knowledge of which 1st defendant denies, and
which in fairness to him, I find he did not sign. Plaintiff has also claimed N2,000.00 general damages for detention of the said keys, property and deed box etc. I think the mention of property and deed box is superfluous, for only the keys were given to 1st defendant. The other items were supposed to be in the House. An action in detinue will lie at the instance of a plaintiff from whom the defendant has received a chattel but fails to return it when demand is made. From the evidence I believe that the keys were net handed to 1st Defendant by plaintiff alone. I believe they were handed to him collectively by the members of the House present at the time. If they all had demanded the keys back from him and he had refused to surrender them, he would have been liable in detinuc. In the present case as the demand was made by plaintiff alone, I do not find 1st defendant liable in detinue.
Aggrieved by the judgment of the trial court, the defendants appealed to the Court of Appeal. They also applied in the High Court for a stay of execution of its judgment pending the determination of the appeal which was refused on 29th April 1982. As a result they applied to the Court of Appeal, Enugu Division for the same relief which was granted on 13th October 1982.
The plaintiff also cross appealed against the refusal of the trial court to grant him relief of N2,000.00 general damages for detinue as contained in his Statement of Claim.
On
3rd September l984 both the main appeal and the cross appeal were heard by the
Court of Appeal and judgment delivered on 29th November I984. in the lead
judgment delivered by Phil-Ebosie, J.C.A., [with which both Aseme and Aikawa
JJ.C.A. agreed], the main appeal by the defendants was dismissed while the
plaintiff's cross appeal was allowed.
Still
dissatisfied with the judgment of the Court of Appeal, the defendants files
Notice of Appeal to this Court dated 11th January
Following
the judgment of the Court of Appeal supra, the plaintiff, in l986, started
committal proceedings against the defendants in the Port Harcourt Division of
the Rivers State High Court for contempt of court in that notwithstanding the
judgment of the Court of Appeal in the matter, the 1st defendant refused to hand
over to the plaintiff the vacant possession of the two houses in dispute and
their respective keys.
The
learned trial Judge who dealt with the application for committal, found in his
Ruling dated 12th June 1986 as follows –
On the whole therefore I find that both defendants, in defiance of the courts, have refused or avoided to carry out the order of the courts (High Court, 24th September, 1981; Court of Appeal 29th October 1984) and have further, attempted to undermine or frustrate their effectiveness If a person who is required to obey a court order deliberately sets to do an act to frustrate the effectiveness of the order he is holding the courts in contempt.
He
then issued out the following interim orders - ….that the 1st defendant within 7 days from today, do hand over to the plaintiff all items of property he removed from the Opuwari of Ezekiel Hart House, Bonny; and the 2nd defendant do move out of 41 Creek Road, Port Harcourt, within 7 days from today, failing which, appropriate orders would be made to compel them to carry out these orders made to satisfy the order of this court of 24th September, 1981 and confirmed by the Court of Appeal. and adjourned further proceedings to 25th June 1986. And when the matter came up on 25th June 1986, the report was that both the 1st and the 2nd defendants had failed to comply with court's orders given on 12th June 1986. They were then committed to prison until they obeyed the order of the court.
On
2nd July 1986, the learned trial Judge heard an application by the 1st
and the 2nd defendants for an order -
(I)
allowing
a stay or suspension of the order made by this Honourable court on 25th June
1986 committing the applicants for contempt of court for an indefinite period in
that the 1st defendant failed to deliver to the plaintiff a deed box within 7
days as ordered by the court, and that 2nd defendant refused to vacate 3 rooms
he occupies at No.41 Creek Road, Port Harcourt as ordered by the court on 12th
June, 1986; (II)
Granting
the applicants bail, pending the determination of their appeal to the Court of
Appeal against the order of committal….
After
considering the application, the learned Judge dismissed it on 7th July 1986 but
adjourned the matter to 11th July 1986 to afford the contemnors further
opportunity of purging themselves of the contempt.
From
what appeared in the Record of Proceedings, defendant, James E. P. Hart complied
with the order of the court and abandoned his appeal against the order of the
learned trial Judge that dealt with the contempt proceedings and as such his
appeal was struck out by the Court of Appeal on 27th October 1986 when an
application by the 2nd defendant, Louis Ezekiel Hart for
(1)
an
extension of time within which to appeal for a stay of execution of the Ruling
of Okara, J., dated 12th June 1986, and
(2)
An
interim order staying all further proceedings relating to the said Ruling
pending the hearing of the substantive motion for a stay of execution was
considered and granted. He also, as shown in paragraph 3 of his further A
affidavit sworn to on 24th October 1986, had complied with order of the court by
"vacating the premises in dispute", that is by vacating and handing
possession of the three rooms at No.41 Creek Road, Port Harcourt. The
substantive application was however taken and granted by the Court of Appeal
same having not been opposed by learned counsel for the respondent/plaintiff.
The
appeal against the order of committal bearing identification No. FCA/E/54/82 was
heard by the Court of Appeal, Enugu on 24th June, 1987 and judgment reserved.
In
a well considered judgment of the Court of Appeal written by Abdullahi, J.C.A.
[as he then was], with which both Olatawura and Macaulay JJ.C.A. agreed, he
dismissed the appeal as unmeritorious and awarded N300.00 costs against the 2nd
defendant, who was the only appellant.
The
2nd defendant has now further appealed to this Court. Briefs were filed and
exchanged by learned Counsel on both sides.
Henceforth,
the 2nd defendant will be referred to as the appellant while the plaintiff will
also be referred to as the respondent.
On
13th November 1989 the appeal was taken by this Court. Learned Counsel on both
sides adopted their respective briefs and made oral submissions in elaboration.
In
the brief filed by the appellant, he formulated only one issue for determination,
to wit -
Given the facts of this case, did the defendant/appellant commit contempt of court?
For
his part, learned Counsel for the respondent, Mr. Chike Ofodile, S.A.N..
formulated the following three issues for determination -
3.1
Was
the defendant/appellant in contempt of the order of
Court made on the 12th of June, 1986?
3.2
Can
the appellant properly raise in this Court the issue of the procedure adopted in
initiating the contempt proceedings when the said issue was never canvassed at
the Lower Court?
3.3 Did the plaintiff/respondent employ the correct procedure in bringing the defendant/appellant to Court for committal?
Before
I go into the arguments of Counsel in their briefs and which I consider relevant
to the determination of this appeal, I shall first deal with Counsel for the
respondent's preliminary objection that -
The appellant's Ground 2 is being raised for the first time in this court. The procedure used by the respondent in initiating the contempt proceedings was never questioned at the Court of Appeal.
The
objection was conceded to by learned Counsel for the appellant and to that
extent any argument relating to the procedure in initiating the contempt
proceedings contained in the appellant's brief is hereby declared irrelevant and
of no effect. Ground 2 of the appellant is accordingly declared irrelevant and therefore struck out. See also Order 8 Rule 2(5) of the Supreme
Court Rules, 1985. See also Idika & Ors. V Erisi & Ors. [1988] 5 S.C.N.J.
28(1988) 2 N.W.L.R. (Pt.78) 563 and Uor & Ors. V. Loko [1988] 5 S.C.N.J 16;
(1988) 2 N.W.L.R. (Pt.77) 430.
So
the only issue left to be dealt with is whether the appellant was in contempt of
the trial court's order when he refused to vacate the three rooms he was
occupying after that court's judgment and its subsequent affirmation on appeal
by the Court of Appeal, though the record showed that after the committal order
the appellant vacated and gave up possession of the three rooms in No.41 Creek
Road, Port Harcourt as ordered by the court.
It
was the contention of the learned Counsel for the appellant that the appellant
was not in contempt of the trial court's judgment when he remained in the
rooms he was occupying at No.41 Creek Road Port Harcourt as it was a family
house and was in occupation of the rooms long before the judgment of the trial
court. It was also his contention that in the body of the trial court's
judgment, there is no specific order against him that he should vacate the
premises. He further complained that the learned trial Judge that dealt with the
contempt proceeding - Okara, J., misinterpreted the judgment of the trial
court's order that the present respondent, as Chief or Head of Ezekiel Hart
House 'is entitled to the custody and control of all the property, real and
personal of the said Chief Ezekiel Hart (Deceased)' to wit -
The delivery up to him by the 1st defendant of the keys of the family house at Bonny and the family house known as No.41 Creek Road, Port Harcourt together with family property in to mean both houses contained to
mean handing
vacant possession of the houses over to the respondent by the 1st defendant to
affect the appellant against whom the said order was not directed, but the
learned Judge was also wrongly influenced by coming to the conclusion that the
appellant committed contempt by a letter dated 19th January 1985
referred to by the 1st defendant in his affidavit the contents of which the
appellant said he denied. He finally submitted that "faced with two
conflicting documentary accounts of how the defendant/appellant came into
possession of the said rooms, the Judge ought to have resolved that conflict
through the taking of evidence. The Court of Appeal merely took the point as
established that defendant/appellant was a Trespassor and even "a
trespasser" ab-initio without any proof of that fact." Learned Counsel
referred to the following decided cases to support his submissions -
Akinsete
v. Akindutire [1966] 1 All N.L.R. 147 at 148; Oluibukun & Ors. v. Oluibukun
[1974] 2 S.C. 41 at 48; Uku & Ors. v. Okumagba & Ors. [1974 1 All N.L.R.
(Pt.1) 475 and Eboh & Ors. v. Obi & Ors. [1974] 1 S.C. 179 at 189.
Sheriff & Civil Process Law, Cap. 118 Laws of Eastern Nigeria, 1963
[Applicable to Rivers State] and Order 9 Rule 13(1) of Sheriff & Civil
Process judgment [Enforcement] Rule of the High Court of Eastern Nigeria
(Applicable to Rivers State). to
buttress his argument that no order was made against the appellant in the trial
court's judgment much-less to comply with it.
On
his part, learned Counsel for the respondent, Mr. Chike ofodile, S.A.N.,
submitted that in view of the judgment of Pepple J. [as he then was] that the
respondent was entitled to the custody and control of all the property, real
and personal of late Chief Ezekiel Hart and his order that such possession and
control be given to the respondent by the delivery of the keys of the family
house at Bonny and the family house known as No.41 Creek Road Port Harcourt, the
legal position is that the appellant, as from that time ceased to have right to
be there without the permission and consent of the respondent. He therefore
became a trespasser. In support of this submission learned Counsel cited and
relied on the case of Ikwunne Okagbue v Romaine [1982] 5 S.C. 133 at 148. He
also submitted that the learned Judge, Okara, J., was perfectly right on 25th
June 1986 to have ordered that the appellant be committed to prison until he
purged himself of the contempt by complying with the court's order. He referred
to Section 71 of the Sheriff and Civil Process Law and further submitted that
having regard to the wording of that section it matters not whether or not, the
order contained in the judgment is in the nature of an injunction,
disobedience to it would attract the committal of the contemnor if contempt
proceedings are initiated. He relied on Paragraph 52 at page 33 of Haisbury's
Laws of England, Vol.9, 4th Edition.
Contempt
of court is either criminal or civil. It is criminal when it consists of
interference with administration of law thus impeding and perverting the course
of justice; it is civil when it consists of disobedience to the judgments,
orders, or other processes of the court resulting or involving private injury.
The
contempt committed by the appellant is civil contempt. It is very E clear from the facts before the lower courts subsequent to the judgment
of the trial court, the appellant, not only refused to comply with the judgment
of the trial court but resorted to delaying tactics by worthless applications
and baseless appeals.
Immediately
after the judgment of the trial court, he and others lodged an appeal to the
(Federal) Court of Appeal which was unanimously dismissed. Based on the
dismissal of the appeal by the Court of Appeal on 29th November 1984, the
present appellant and 2 others filed an appeal dated 11th January 1985 against
the Court of Appeal judgment.
When
the appellants failed to comply with the directives in the judgment of the
Court of Appeal, the respondent, sometime in January 1985, started the
proceedings for the committal of both the present appellant and the 1st
defendant [who was the 1st appellant until he abandoned his appeal] by filing a
Notice as prescribed in Form 48 of the
Sheriff and Civil Process Rules. In the ruling delivered by Okara, J., on
12th June 1986 he found both the 1st defendant and the appellant guilty of
contempt of court as complained of by the respondent and gave each one of them
seven days within which to comply with the trial court's orders, instead of
committing them to prison. He adjourned the case to 25th June 1986.
When
the case came up on 25th June 1986 it was reported to the court that the 1st
defendant and the appellant did not comply with the court's order of 7th June
1986, he therefore committed them to prison.
On
that same 25th June 1986, the contemnors moved and argued an application that
they had earlier filed for -
(1)
leave to appeal against the Ruling of 12th June 1986 and
(2)
stay of execution of the order contained in (1) above, pending the determination
of the appeal.
Prayer
(2) of the Motion was abandoned and struck out for its incompetence while
prayer (1) was granted. At the request of learned Counsel for the contemnors,
the case was again adjourned to 1st July 1986 for him to file fresh application
for an interim stay of the court's order of 25th June 1986 committing the
contemnors to prison. This was granted. The application was argued on 2nd July,
1986 and same was dismissed on 7th July 1986. The matter was further adjourned
to 11th July 1986.
Following
a Motion on Notice dated 14th August 1986, the Court of appeal on 27th October
1986, made the following observation and order -
As we cannot deal with the application this morning and having been informed that committal proceedings in the High Court have been adjourned to 30/10/86 it is desirable to make an interim order of stay. Interim Order is hereby male pending the determination of the applications before this court. The motion is adjourned to 19th January, 1987.
The
motion was then adjourned to 19th January1987. By an application dated 17th
February 1987, the respondent prayed for the Court of Appeal to discharge the
interim order of stay of execution made on 27th October 1986 as from the record
before this Court, there was nothing positive done by the Court of Appeal since
its adjournment of the application for a stay to 19th January 1987
for substantive hearing. The parties then agreed to the hearing of the
substantive appeal against the order of committal for contempt of court on 24th
June 1987.
Before
this date and as I have mentioned earlier in this judgment both contemnors have
complied with the court's order and that the 1st defendant had expressed his
desire not to continue with the appeal as a result of which it was struck out.
In
a well considered judgment by the Court of Appeal delivered on 24th June
1987, it reviewed the whole events that happened in the case and dismissed the
appeal as unmeritorious.
Myself,
having gone through the record of proceedings, I find no alternative other
than coming to the same conclusion as arrived at by the two lower courts.
Apart from the evidence led by the appellant none of his witnesses supported his contention that No.41 Creek Road being a family house left by the deceased, and he appellant, being one of the deceased's sons, was entitled to occupy the rooms he was occupying. This being an issue of fact, which needed to be proved, was considered by the trial Judge [Pepple, J.] as against the other evidence adduced and he preferred the latter to the former; hence his order that vacant possession of 41 Creek Road be given to the respondent . It
is to be noted that the appellant was joined in the suit as 2nd defendant on
his own application and he fully participated in the proceedings up to the
delivery of the judgment. And from the date the judgment was given he was fully
bound by it. When he refused to comply with it, he became a trespasser in
No.41 Creek Road, as regards the three rooms he continued to unlawfully occupy.
He is neither an invitee nor a licensee in respect of the three rooms. The case
cited by Mr. Chike Ofodile, S.A.N., of Ikwunne Okagbue v. Romaine [1982]
S.C.133, particularly pages 144 - 148 is apposite.
Learned
Counsel for the appellant tried, though woefully, to argue that as the judgment
of the trial court did not specifically direct that the appellant vacate and
give up possession of the three rooms at No.41 Creek Road, B there is no court
order that the appellant has failed to comply with.
Section
71 of the Sheriff and Civil Process law, Cap. 118, Laws of Eastern Nigeria
1963 (applicable to Rivers State) provides that -
71. If any person refuses or neglects to comply with the order made against him……the court.... may order that he be committed to prison and detained in custody until he has obeyed the order.....
The
question to ask here is: did the judgment of the trial court contain an order
affecting the appellant? the answer is certainly in the affirmative as the
learned trial Judge ordered that -
(1)
The
plaintiff was entitled to the control and possession of all property real and
personal, of Chief Ezekiel Hart (deceased) as the Chief or Head of the Ezekiel
Hart House.
(2) The first defendant should deliver up to the plaintiff the keys of the Opuwari at Bonny and the house known as 41 Creek Road.
In
the judgment of the Court of Appeal and elaborating on the order supra, that
Court said -
….the plaintiff is the recognised head of the house, it is, as accepted by the learned trial Judge, his entitlement to take possession of the family property. He cannot do it without the case.
In
the Ruling of Okara, J., dated 12th June 1986, he commented thus on the trial
court orders, as affecting the appellant -
The
court found otherwise and declared that the plaintiff had the right to the
possession of the property of the late Chief Ezekiel Hart including 41 Creek
Road, Port Harcourt, and ordered that the keys thereof as well be handed to
him (plaintiff).
This amounts to handing vacant possession of the house over to the plaintiff barring those lawfully living there before the death of Chief Ezekiel Hart. The effect of this is that the 2nd defendant had no right to be in occupation.
This
was affirmed by the Court of Appeal in its judgment of 16th December 1987.
The
principle enunciated in Doherty v. Doherty [1964] L.L.R. 226 as regards the
interpretation of Section 71 of the Sheriff and Civil Process Law (supra)
restricting its application to the enforcement of mandatory orders only is no
longer the law. See the lead Reasons for Judgment of this Court in Osayande
Uhunmwagho v. F.I. Okojie & Anor. (1989)5 N.W.L.R. (Pt.122) 471 by Nnamani,
J.S.C., in which he reviewed the said principle and concluded -
From all I have said, it follows that I do not endorse the restriction to mandatory orders which Doherty and Adebutu decided. I have not so far seen any judgments in other High Courts in Nigeria arriving at the same conclusion as the Lagos High Court appears to have done in Doherty and Adebutu. The relevant law in the Sheriffs and Civil Process Law, Laws of Eastern Nigeria, 1963 Cap. 118 is Section 71. The Rules are Order 9 Rule 13 of the Judgment (Enforcement) Rules made thereunder. Significantly, Forms 48 and 49 are the same as the Bendel State forms.
It
is contempt to disobey a judgment or order for the giving up of possession of
land and such order can be enforced by means of committal. Where an individual
is enjoined by an order of the court to do or to refrain from doing a particular
act he has a duty to carry out that order. The court has a duty to commit that
individual for contempt of its orders where he deliberately fails to carry out
such orders.
As
O'Leary, J. (a Canadian Judge) put it in Canadian
Metal Co. Ltd. v. Canadian Broadcasting Corp.
(No.2) f1975] 48 D.L.R. (3d) 641 at 669-
'To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn…….if the remedies that the Courts grant to correct.... wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the Courts will quickly result into the destruction of our society.'
The
appeal totally fails and it is dismissed. The decisions and orders of the lower
courts are affirmed. N500.00 costs is awarded to the respondent against the
appellant.
Judgment delivered by
Uwais,J.S.C.
I have had the opportunity of reading in draft the judgment read by my learned brother Wali, J.S.C. I entirely agree that the appeal has no merit whatsoever and that it should be dismissed. Accordingly, the appeal is hereby dismissed with N500.00 costs to the respondent.
Judgment delivered by
Belgore
,J.S.C.
I
had the privilege of reading ill draft the judgment of my learned brother, Wali,
J.S.C., with which I am in complete agreement. For the reasons ably advanced in
that lead judgment, and to which I have no-thing more useful to add, I also
dismiss this appeal with N500.00 costs to the respondent.
Judgment delivered by
Agbaje,J.S.C.
The
appellant was the defendant to an action instituted by the respondent as
plaintiff in Suit No. PHC/240/77 in a Port Harcourt
(1)
A
declaration that he is entitled to the possession or custody and control of all
property real and personal of the said Chief Ezekiel Hart (deceased)
(2)
An
order of the court that the defendant to deliver to the plaintiff:
(a)
The
keys of the Residence at Bonny and of 41 Creek Road, Port Harcourt, together
with the family properties in the Residence and 41 Creek Road, Port Harcourt
contained, including the properties removed by him from the Residence on or
about 20th January, 1975.
(b)
The
box or leather case containing Deeds, Indentures or Instruments in respect of 41
Creek Road, Port Harcourt and the family lands at Obigho, Komkom, Azuama and B.
Dere.
(3)
N2,000.00
general damages for the detention of the said keys, properties and the box or
leather case and the Deeds, indentures or Instruments contained therein.
For
the purposes of the present appeal, the relevant portion of the judgment of
Pepple, J., as he then was, in the case given on 24/9/81 is as follows:-
1.
I
grant the plaintiff the declaration he seeks that as Chief or Head of the
Ezekiel Hart House he is entitled to the custody and control of all property
real and personal of the said Chief Ezekiel D Hart (Deceased).
2.
I
give judgment for plaintiff for the delivery up to him by the 1st defendant, of
the keys of the family Houses at Bonny and the family house known as No.41 Creek
Road, Port Harcourt, together with the family Property in both houses
contained.
3. I am unable to make an order in respect of the Deed Box, as the claim for its return is based on Exhibit ‘H' knowledge of which 1st defendant denies, and which in fairness to him, I find he did not sign. Plaintiff has also claimed N2,000.00 general damages for detention of the said keys, property and deed box, etc. I think he mention of property and deed box is superfluous, for only he keys F were given to 1st defendant. The other items were supposed to be in the House. An action in detinue will lie at the instance of a plaintiff from whom the defendant has received a chattel but fails to return it when demand is made. From the evidence I believe that the keys were not handed to 1st defendant by plaintiff alone. I believe they were handed to him collectively by the members of the House present at the time. If they all had demanded the keys 6 back from him and he had refused to surrender them, he would have been liable in detinue. In the present case as the demand was made by plaintiff alone, I do not find 1st defendant liable in detinue.
Both
the plaintiff and the defendant appealed to the Court of Appeal,
Enugu Division against the
decision, the latter against decision (1) & (2) above and the former against
that part of the decision finding the latter not liable in detinue. The Court of
Appeal in its judgment of 29/1/84 allowed
the appeal of the plaintiff but dismissed that of the defendant.
The
defendant has appealed against the whole of that decision of the Court of Appeal
confirming decisions (1) & (2) above of the trial court and reversing its
decision on the claim in detinue.
There
is no indication in the record of proceedings in this court that a stay of
execution of the judgment of the Court of Appeal was sought, let alone obtained.
Notwithstanding
the defendant's appeal to this court, committal proceedings for contempt of
court of the orders of Pepple, J., as he then was, were commenced by the
plaintiff against him before Okara, J., sitting in a Port Harcourt High Court.
In his ruling of 12/6/1986 in the proceedings, he held as follows:-
On
the whole therefore I find that both defendants, in defiance of the courts,
have refused or avoided to carry out the order of the courts (High Court, 24
September, 1981; Court of Appeal 29 October, 1984) and have further, attempted
to under mine or frustrate their effectiveness. If a person who is required to
obey a court order deliberately sets to do an act to frustrate the effectiveness
of the order he is holding the courts in contempt.
In
the circumstance l shall make orders toward satisfying the order of the High
Court dated 24 September, 1984 and confirmed by the Court of Appeal on 29th
November, 1984.
I
therefore make an interim order that the 1st defendant within 7 days from today,
do hand over to the plaintiff all items of property he removed from the Opuwari
of Ezekiel Hart House, Bonny; and the 2nd defendant do move out of 41 Creek
Road, Port Harcourt, within 7 days from today, failing which, appropriate orders
would be made to compel them to carry out these orders made to satisfy the order
of this court of 24 September, 1981 and confirmed by the Court of Appeal.
Adjourned 25 June, 1986 for report.
It
would appear that on 25th June, 1986 the report was that the defendant had not
complied with the order of Pepple, 1., as he then was of 24/9/81. so on that day
Okara, J., ordered that they be committed to prison till they have purged
themselves of their contempt. An application for stay of execution of the
committal order of 25/1986 was refused by him on 7/7/86. An appeal by the
defendants to the Court of Appeal Enugu against the committal order of Okara,
J., was lost. The appeal was dismissed in that court on 16/987.
This
is a further appeal by the 2nd defendant, Louis B. Ezekiel Hart, against the
committal order of Okara, J., of 25/6/86 which was confirmed by the Court of
Appeal in its judgment of 1619/87, on the following grounds with their
particulars:-
1.
That
the learned trial Judges of the Court of Appeal, Enugu erred in law when they
held that the defendant/appellant had committed contempt of Court.
2.
That
the procedure used by the plaintiff/respondent in initiating the contempt
proceedings, was incorrect.
PARTICULARS OF ERROR:
(1)
That
the plaintiff served the defendant Forms 48 and 49 of the Sheriffs and Civil
Processes Rules, 1963 made under the Sheriffs and Civil Processes Law, 1963 of
Eastern Nigeria applicable to River's State.
(2)
That thereafter the plaintiff brought a Motion on Notice to
commit the defendant to prison for contempt of Court.
(3)
That this procedure contemplates a situation in which an
order of Injunction had been made in Suit.
(4) That the hearing of an application for committal of a person disobeying a Court order is in the nature of Criminal Proceeding and the necessary requirements for such committal, including the appropriate procedure must be strictly followed.
Briefs
of arguments have been filed on both sides. According tc the appellant the
issue for determination is as follows:-
Given the facts of this case, did the defendant/ appellant commit contempt of Court?
According
to the respondent the issues for determination are:
3.1
Was
the defendant/appellant in contempt of the order of Court made on the 12th of
June, 1986?
3.2
Can
the appellant properly raise in this Court the issue of the procedure adopted in
initiating the contempt proceedings when the said issue was never canvassed at
the Lower Court?
3.3 Did the plaintiff/respondent employ the correct procedure in bri |