Family, Larfarge MD disagree on contempt charge

Family, Larfarge MD disagree on contempt charge

By Adebisi Onanuga

The family of Pa Saka Magbadelo of Alaguntan Village of Ewekoro,  have asked an Ogun State High Court sitting in Ifo to commit Larfarge African Plc and two others to prison for allegedly disobeying a July 22, 2016 court order.

The order followed judgment by Justice B.A.A. Bakre in suit no: HCT/212/10 concerning possession of a parcel of land measuring 353.412 hectares at Akinbo village, covered by survey no OG/276/2012/092

The motion on notice for committal of contemnors now before Justice N. O. Durojaiye was filed pursuant to Order IX Rule 33 of the judgment (Enforcement) Rules of the Sherriffs and Civil Process Act through their counsel Abayomi  Omoyinmi and Bukola Hassan.

The defendants/respondents in the suit are Larfarge Africa Plc, and the Managing Director of the company,  KhaleAbde-Laziz El Dorkant.

The Claimants/Applicants are Nojimu Magbadelo, Atanda Magbadelo and Jonathan O. Akintona, for themselves and on behalf of Pa Saka Magbadelo of Alaguntan Village of Ewekoro.

Nojimu Magbadelo , an automobile mechanic, in a 14-paragraph affidavit, maintained that it is in the interest of justice that the respondents are committed for continuing the act of trespass despite the order of the court unless they speedily purge themselves of their contemptuous acts.

Magbadelo averred that they went into the land to exercise their right of possession and ownership and that on getting to the land, they saw machinery and other equipment used for mining allegedly belonging to Larfarge African Plc.

He averred that despite being aware of the court judgment and order, the respondent have refused to vacate the land to enable them take possession.

He claimed that when they approached Dangote Plc on Friday October 12, 2018 alongside their surveyor and solicitor at their Oba Akran Ikeja office to negotiate sale of the land to them, a director in the company by the name of Mr Raj informed them that the respondents have a subsisting mining license  and already carrying out mining activities on their land.

They claimed that the respondents have continued to carry out mining activities on the land daily and that a visit to the land by the family on Saturday, March 23, 2019 revealed that the respondents were still on the land.

He said the development made them serve the respondents with Form 48 attheir office on Gerrad Road, Ikoyi, Lagos.

He averred that there was no reason why the respondents should not give up possession and let them into their land in view of the court’s judgment.

But Larfarge African Plc and its Managing Director, Khaled Abde-Laziz el Dokan, in their Notice of Preliminary Objection, filed through their counsel, B. P Ogundele, challenged the jurisdiction of the court to hear the civil contempt proceedings.

They  stated that there was a Motion on Notice dated February 25, 2020 pending at the Court of Appeal for stay of execution or any issue pertaining to the contempt proceeding before the court and slated for hearing November 24.

They prayed the court for an order striking out forms 48 and 49 on grounds of incompetency and to stay proceedings on the execution of the June 22, 2016 ruling of the court delivered by Justice B.A.A. Bakre and contempt proceedings initiated by the claimant/respondent pending determination of the substantive appeal and Motion on Notice dated February 2020.

The application, which listed 21 persons as defendants/applicants, sought an order of the court setting aside the form 49 dated February 19, 2020 on grounds of defective service and non-compliant with Order 9 rule 13(2) and (3) of the Judgment Enforcement Rules Cap S6 Laws of the Federation of Nigeria 2004.

They stated in the application that the form 49 was not served within two days stipulated by Order 13(2) and (3) of the Judgment Enforcement Rules Cap S6 Laws of the Federation of Nigeria 2004.

In their affidavit in support of their application for objection, they averred that forms 48 and 49 were issued against the 1st and 2nd defendants applicant by the 3rd claimant/respondent who is not a juristic person in view of his death since January 2018.

They averred “that a dead person like the 3rd claimant/respondent is not capable of initiating contempt proceedings as presently constituted even in representative capacity.”

They also averred that claimants/respondents has not obtained warrant of execution (Form O) granting legal possession to them to warrant initiating contempt proceedings.

But the claimants/respondents in their counter affidavit deny paragraph 3 d to h and j, m to o, p and q and stated that with reference for paragraph 3(d)(e) and (f) of the preliminary objection, forms 48 and 49 were issued by the respondents representing themselves and on behalf of Saka Magbadelo family, hence the action survives the death of the 3rd respondent.

They averred that the applicant do not have any valid appeal pending before the Court of Appeal as their application for leave to file notice of appeal out of time has not been heard.

They contended that paragraph 3(o) and (q) of the affidavit of the applicant confirm that the applicants are in contempt and that it is not mandatory that respondents obtain warrant of execution to initiate contempt proceedings.

In their reply on point of law, the defendants/applicants raised four issues for determination of the court.

They asked the court to strike out the counter-affidavit and written address of the claimant/respondents on grounds of incompetency arguing that they were filed out of time, and violates section 115(2) of the Evidence Act, 2010.

While they agreed that the judgment/ruling of Justice Bakre survives the 3rd claimant, they maintained that the contempt proceedings that is sui generis in nature must be filed in the names of 1st and 2nd claimants/respondents that are surviving representatives of Magbadelo family.