H.R.H. OBA EZEKIEL OGUNLEYE V. PRINCE JOSHUA O. AINA
(2012)LCN/5221(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of March, 2012
CA/IL/22/2011
RATIO
ON THE MEANING OF ACADEMIC ISSUE OR QUESTION
In the case of Odedo vs INEC (2008) 17 NWLR (Pt. 1117) 554, it was held that:- “…An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary to the case at hand…(it) could be a hypothetical or moot question (and)… does not relate to the live, issues in the litigation, because it is spent as it will not enure any right or benefit on the successful party.” (underlining mine). See also Tanimola vs. Mapping Godatta Ltd. (1995) 6 NWLR (Pt.403) 617; Nwodoshi v. ACB (1995) 6 NWLR (Pt.404) 658; Ogbonna vs. President FRN (1997) 5 NWLR (Pt.504) 281; Ndulue vs. Ibezim. PER. ITA GEORGE MBABA, J.C.A.
THE POSITION OF THE LAW ON AN AFFIDAVIT NOT DENIED OR POSITIVELY CONTROVERTED
The law is now quite clear on the fact that, an affidavit not denied or positively controverted, is deemed to be admitted by the adverse party. And to deny an affidavit, the adverse party does not have to speak in tongues or in subterfuge, as he is required to deny the averment frontally and positively, leaving the court or any reader of his denial not in doubt of his adverse position to the one advanced or canvassed in the supporting affidavit. See the case of Hon. Maryati Audu Dogan & Ors. vs. A.G. Taraba State, an unreported decision of this court in CA/J/243/2010, delivered on 25/5/2011, pages 35 – 36 thereof. PER. ITA GEORGE MBABA, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
H.R.H. OBA EZEKIEL OGUNLEYE Appellant(s)
AND
PRINCE JOSHUA O. AINA Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling/Judgment of the High Court of Kwara State, delivered by Hon. Justice, A.S. Oyinloye on the 3rd day of December, 2010, wherein the learned trial judge declined jurisdiction on the premise that the nature of the case of the plaintiff as well as the method adopted in the initiation of the case did not vest the Court with jurisdiction. The Lower Court had, however, considered the case on the merit before dismissing it, when the court said:
“In the final analysis and on the merits of this case, I am convinced that the Respondent is not exposed or amendable to the Order of Committal sought vide this Application, I return ‘NO’ as an answer to question earlier on raised by this Noble Court in this Ruling. I refuse to make the Order of Committal, the Application on the merits fails and same is accordingly dismissed.” (Page 379 of the Record).
The Appellant, as Judgment/Creditor/Applicant at the Lower Court had taken out a motion against the Respondent (as Judgment Debtor/Respondent) under Section 287(2) of the 1999 Constitution; Order 47 Rule(1) of the Kwara State High (Civil Procedure) Rules, 2005; Section 72 of the Sheriffs and Civil Process Act, Cap. S26 LFN 2004; Order 9, Rule 13 of Judgment (Enforcement Procedure) Rules and Under the Inherent Jurisdiction of the Honourable Court, seeking the following:
(1) An Order committing the judgment – Debtor/Respondent to prison for having disobeyed the Order of the Court of Appeal Ilorin Division, made on the 10th day of June, 2010 restraining him, among other things, from further parading himself as Eletan of Etan. And such further Order(s) as this Honourable Court may deem fit to make in the circumstances.
GROUNDS FOR THE APPLICATION
The judgment – Debtor/Respondent, after being served with form 48, endorsed with enrolled Order of the judgment of the Court of Appeal, Ilorin Division, restraining him from further parading himself as the Oba and Eletan of Etan, continues to parade himself as the Oba and Eletan of Etan.”
The application was supported by affidavit of 9 paragraphs and exhibits, including Exhibits EA01, EA04 and EA04A, that is, the judgment of the Court of Appeal, a copy of Form 48 and the enrolled order of the Court of Appeal on the judgment, respectively. The Applicant also exhibited Exhibit EA05, being picture of signpost of the palace of the Respondent, taken after the judgment of the Court of Appeal, still claiming to be the Oba and Eletan of Etan.
The learned trial judge gave the Ruling after considering the entire application and the affidavits, including the counter-affidavit of the Respondent and the addresses of counsel on the issue. Appellant, therefore, brought the appeal against the refusal and dismissal of the application for committal by the trial judge.
He filed the Notice and Grounds of Appeal on 22/2/2011, wherein he raised Eleven (11) grounds of Appeal, as follows:
GROUND ONE
The learned trial judge erred in law in holding thus:
“I have read the provision of S. 287 of the Constitution of the Federal Republic of Nigeria, 1999 very well, S.72 of the Sheriffs and Civil Process Act vis-Ã -vis the clear provision of Order 47 Rule 1(2)(a), (b) and (c) of the High (sic) (Civil Procedure) Rules, of Kwara State, 2005 generally and I have come to the conclusion that there is force in the argument of the Applicant’s Counsel that the Constitution of the Federal Republic of Nigeria, 1999 vide S.287 places a duty on this Noble Court to enforce the judgment of the Court of Appeal as embodied in Exhibit EA01 in this matter. However, it is instructive to note that the same Constitution does not prescribed any procedure to be followed when the enforcement relates to contempt as in this matter. I have equally found out that the power conferred on this Noble Court vides S.72 of the Sheriffs and Civil Process Act is also without prescribed procedure…”
PARTICULARS OF ERROR IN LAW
(i) S.72 of Sheriff and Civil Process Act is made pursuant to item 57 of the Second Schedule of the Constitution.
(ii) Order 9 Rule 13 of Judgment (Enforcement Procedure) Rules made pursuant to S.72 of the Sheriff and Civil Process Act prescribes for the procedure to be followed in the exercise of the power conferred by S.287 of the Constitution.
(iii) Legislative power to make laws for the enforcement of judgment of Courts of record in within the exclusive legislative list of the Second Schedule of the Constitution.
GROUND TWO
The learned trial judge erred in law in holding thus:
“One is also bound to agree further with the Respondent’s Counsel when he submitted that this Noble Court can only entertain contempt Application/Proceedings that fall squarely within Order 47 Rule 1(2)(a), (b) or (c) and that the Present Proceeding is outside what the aforestated Rule covers”
PARTICULARS OF ERROR IN LAW
(i) The provision of S.287(2) of the 1999 Constitution vest the trial Court with power to enforce the judgment of the Court of Appeal
(ii) The provision of Order 47 Rule 1(2)(a), (b) or (c) of the trial court Rules is subordinate to the provision of the constitution.
(iii) The provisions of Order 47 Rule 1(2)(a), (b) or (c) of the trial court Rules cannot reduce the power conferred by the Constitution on the trial court.
GROUND THREE
The learned trial judge erred in law in failing to appreciate the proceeding before him as one that qualifies to vest His Lordship with vires to entertain the committal Application.
WHEN,
The committal application was initiated by Form 48 issued by the Registrar of the trial Court.
(i) By the issuance of Form 48 endorsed with the enrolled Order of the judgment of the Court of Appeal, a proceeding has been duly commenced at the trial.
(ii) By the issuance of Form 48 by the trial Court, the Respondent was ordered to obey the judgment of the Court of Appeal.
(iii) The Respondent failed to obey the order of the trial Court requesting him to obey the judgment of the Court of Appeal.
GROUND FOUR
The learned trial judge erred in law in holding thus:
“By Order 2 of the High Court (Civil Procedure) Rules of Kwara State, 2005 generally, the various modes of commencement of proceeding were expressly provided. In the entire provisions of Order 2 aforestated, there is no provision for a substantive proceeding or activation of the jurisdiction conferred on the High Court to be done vide a Motion on Notice as done in this matter.”
PARTICULARS OF ERROR IN LAW
(i) By Order 2 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005, originating motion (Motion on Notice) is one of the modes of commencing substantive proceeding in the trial Court.
GROUND FIVE
The learned trial judge erred in law in holding thus:
“The Applicant herein can competently approach the Court of Appeal, Ilorin Division for the contempt proceeding when it is one done, ex-facie curiae as we have at hand now. The applicant would be adequately accommodated if he approaches the Court of Appeal pursuant to Order 18 Rule 5 of the Court of Appeal Rules 2007”
PARTICULARS OF ERROR IN LAW
(i) By virtue of S.287(2) of the 1999 Constitution and Order 18 Rule 5 of the Court of Appeal Rules 2007, all Courts of Record which are subordinate to Court of Appeal are empowered to enforce the judgment of the Court of Appeal.
GROUND SIX
The learned trial judge erred in law in holding that the constitutionally guaranteed right to fair hearing and liberty of the Respondent will be deprived vide a mere motion on notice for the committal proceeding against the Respondent.
WHEN
(i) The Originating Motion (Motion on Notice) used in the initiation of the committal proceeding is one of the modes recognized by the Rules of the trial Court.
(ii) The Respondent, in response to the Affidavit in support of application for committal filed a counter-affidavit with written address.
(iii) The Respondent, in all the processes filed by him did not complain of any violation of his right to fair hearing.
(iv) The issue of violation of right to fair hearing is raised suo motu by the trial judge without calling on the parties to address the Court in respect thereof.
GROUND SEVEN
The learned trial judge erred in law in holding thus:
“I agree with the counsel to the Applicant that there is no frontal denial in the counter-affidavit of the alleged acts deposed to in the supporting Affidavit (Paragraph 6(iv)(xii), what however the counsel to the Applicant failed to realize is that vide the same counter-affidavit especially paragraphs 5, 6, 7, 8, and 10 and the argument canvassed vide paragraphs 2.2 – 2.4 of the written address of the Respondent, the Respondent in law provided recognizable shield from committal order”
PARTICULARS OF ERROR IN LAW
(i) The depositions in paragraphs 5, 6, 7, 8, and 10 of the Counter-Affidavit show that there is no valid appeal against the judgment of the Court of Appeal.
(ii) The judgment of the Court of Appeal sought to be enforced is still subsisting and binding having not been set aside nor upturned.
(iii) The fact that the Respondent is in contempt of the order of the Court of Appeal was not frontally denied.
GROUND EIGHT
The learned trial judge erred in law in admitting and relying on Exhibit A3.
WHEN
(i) Exhibit A3 qualifies as public document by virtue of the provision of the Evidence Act.
(ii) Exhibit A3 was not certified as required by the law, hence not admissible.
(iii) The maker of Exhibit A3 as public document was not called as a witness.
(iv) Exhibit A3 is incompetent and devoid of any admissibility value.
GROUND NINE
The learned trial judge erred in law in holding that Exhibit A3 creates a shield legally and factually for the Respondent from committal proceeding.
WHEN
(i) Exhibit A3 has not been heard or granted by the Supreme Court.
(ii) The Respondent is a contemnor who cannot be heard, particularly on prayer (5) of Exhibit A3, until he purges himself of the contempt.
(iii) The judgment sought to be enforced is still subsisting and binding having not been set aside or stayed.
GROUND TEN
The learned trial judge erred in law in holding thus:
“I feel strongly compelled to accept as relevant in the circumstances of this Application the decision in Basil Okoma v. Sunday Samuel Udoh (2000) FWLR (Pt.98) 901 at 903 cited by the counsel to the Respondent at page 9, paragraph 2.3 of the written address in opposition, to this Application where the issue was dealt with by the Court as follows:….”
PARTICULARS OF ERROR IN LAW
i The case of Basal Okoma referred to is distinguishable from the case at hand.
ii. There is no valid appeal or valid application for stay in this case at hand unlike the case of Basil Okoma relied upon by the Honourable Judge.
GROUND ELEVEN
The learned trial judge erred in law in holding that the Appellant hasty in taking benefit of Exhibit EA01.
WHEN
(i) The Exhibit EA01 becomes effective immediately it is delivered.
(ii) There is neither valid appeal nor Order for stay when the Appellant took benefit of Exhibit EA01.
(iii) The Appellant cannot know as at the time he took benefit of Exhibit EA01 that the Respondent will appeal against it.
(iv) The Appellant has not violated any law by taking benefit of Exhibit EA01.
For Relief, Appellant prayed that the appeal be allowed and that we substitute the decision of the Lower Court with an order committing the Respondent to prison for having disobeyed the Order of the Court of Appeal.
Appellant filed his brief of argument on 14/4/2011 and brought an application on 15/6/2011 to be allowed to adduce fresh evidence, which was a certified true copy of the Ruling of the Supreme Court in Appeal No. SC.280/2010, delivered on 2/2/2011 (Exhibit HRH attached to the application); Appellant also sought an order setting down this appeal for hearing on the Appellant’s Brief alone, in default of the Respondent’s Brief. The Application was granted on 1/11/2011 and Exhibit HRH made part of the Records of Appeal. That is, the Ruling of the Supreme Court in Suit No. SC.280/2010, granting the Application by HRH OBA JOSHUA O. AINA who had sought extension of time within which to seek leave to appeal against the decision of this Court (in CA/IL/41/2009) delivered on 10/6/2010. Applicant therein was allowed 60 days extension of time to file an argue ground of mixed law and facts, from the date of the Ruling i.e. 2/2/2011, but prayer 5 as struck out for being incompetent.
At the hearing of the Appeal on 23/2/2012, the Respondents still failed or refused to come to Court or to file any Brief though there was clear evidence of service of all the processes on him, including the hearing notice for that day.
Appellant relied on the Brief he filed, and distilled 3 issues for determination as follows:
(1) Whether the Trial Court was not wrong in declining jurisdiction, having regard to the procedure adopted in the initiation of the Committal proceedings (Ground 1, 2, 3, 4, 5 and 6).
(2) Whether the trial Court was not wrong in failing to commit the Respondent to prison, considering the affidavit evidence and the exhibits attached therewith. (Grounds 7, 8, 9 and 10).
(3) Whether the trial Court was not wrong in holding that the Appellant was hasty in taking benefit of Exhibit EA01. (Ground 11).
Arguing the Appeal, Appellant’s Counsel Y.A. Alajo Esq., said that the trial Court had raised, suo motu, this issue of propriety of the procedure adopted in the commencement of the committal proceedings and its effect, if any, on the jurisdiction of the Court and called on Counsel to address it orally on the issue, and counsel on both sides, did, as per pages 296 – 303 of the Record of Appeal, that it was after considering the oral addresses by counsel that the trial Court came to the conclusion that the nature of the Appellant’s case and the procedure adopted in its commencement could not vest the court with jurisdiction and thus declined jurisdiction.
Counsel submitted that it is an elementary principle of law that the Court derives its jurisdiction from the statute that created it, that the trial Court in this case, being a superior Court of record, created by the 1999 Constitution (as amended) and the High Court Law Cap. 112, Laws of Kwara State, derive its jurisdiction therefrom. He relied on Section 6(2) of the 1999 Constitution and said that the trial Court was vested with both judicial and inherent powers to entertain the case.
Counsel called us to also examine the laws upon which the application was brought (earlier referred) and noted, in respect of Section 287(2) of the 1999 Constitution, that:
“The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Court of Appeal.”
He also reproduced Order 47 Rule 1(1) of the Kwara State High Court (Civil Procedure) Rules, 2005, that:
“The power of the Court to punish for contempt of Court may be exercised by an order of Committal.”
And section 72 of the Sheriffs and Civil Process Act, Cap. 56 LFN, 2004; which says;
“If any person refuses or neglects to comply with an order made against him, other than for payment of money, the Court, instead of dealing with him as a judgment debtor guilty of misconduct defined in paragraphs (f) of Section 66 of this Act, may order that he be committed to prison and be detained in custody until he has obeyed the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the Court directs.”
Counsel also relied on Order 9 Rule 13 of the Judgment (Enforcement) Rules, which provides that:
“When an order enforceable by committal under Section 72 of the Act has been made, the registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with notice in form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.”
Counsel submitted that apart from the general judicial and inherent powers vested by Section 6 of the 1999 Constitution, as a matter of duty, the trial Court, under Section 287(2) of the Constitution, is vested with jurisdiction to enforce the judgment of Courts superior to it; that this position is unchallengeable and that the trial Court had admitted same when it entrusted, as follows:
“…I have come to the conclusion that there is force in the argument of the Applicant’s Counsel that the Constitution of the Federal Republic of Nigeria, 1999, vide S.287, places a duty on this Noble Court to enforce the judgment of the Court of Appeal as embodied in Exhibit EA01 in this matter.”
Counsel submitted that, going by that admission, the trial judge was duty bound to enforce the judgment of this Court, and so was wrong to have declined jurisdiction in the matter, on the self-induced misdirection that the Constitution does not prescribe procedure to be followed.
Counsel further submitted that the issue of enforcement of judgment of the Court of Record is within the Exclusive Legislative List and powers therefore, conferred on the National Assembly to make laws in respect thereof: that the National Assembly, pursuant to Section 4(2) of the Constitution, enacted Section 72 of the Sheriff and Civil Process Act, which reaffirms the duty of the trial Court to enforce the judgment of superior Courts – by committing unrepentant contemnor to prison. Counsel submitted that the claim by the trial Court that Section 287(2) of the Constitution and Section 72 of the Sheriff and Civil Process Act, do not provide procedure to follow, evaporate in the face of the glaring provisions of Order 9 Rule 13 of the Judgment (Enforcement) Rules, made pursuant to the Section 72 of the Sheriff and Civil Process Act; that the only procedure required for commencement of committal proceedings is the issuance and service of forms 48 and 49 of the Respondent, which the Appellant duly complied with.
He referred us to paragraphs 6(ii) of the Affidavit in support (pages 3 – 6 of the Record), where Form 48 was caused to be issued and served on the Respondent, that after several days of service of Form 48, and the continued disrespect of the Court order, Form 49 was also caused to be issued and served on the Respondent. He referred us to the page next to the content page of the Record. He said that in order to convince the Court as, requiem by subsection 3 of Order 9 Rule 13 of the judgment (Enforcement) Rules, that the Respondent still disobeyed the order of this Court, Appellant filed and served alongside Form 49, an application for committal, supported by affidavit and a written address and exhibits on the Respondent; that that afforded the Respondent the opportunity to show cause, by filing a counter-affidavit, that having followed the due procedure, the trial court was not right to decline jurisdiction on the premise on lack of provision of procedure by the Constitution and the Sheriff and Civil Process Act.
Counsel further submitted that the trial judge was wrong and under a misconception of the law when he held on the Respondent’s submission, “that the Court can only entertain contempt Applications/Proceedings that fall squarely within Order 47 Rule 1(2)(a), (b) or (c) (of the High Court Civil Procedure Rules) and that the present proceeding is outside what the aforesaid Rules covers.”
Counsel said that that cannot be a correct position of the law, in the light of the intendment of the 1999 Constitution, the Sheriff and Civil Process Act and the judgment (Enforcement) rules as earlier captured in the Appellant’s argument above. He added that the inclusion of Order 47 Rule (1)(2)(a)(b) or (c) of the Kwara State High Court (Civil Procedure) Rules on the motion paper was only complementary to the other laws under which the application was brought, that the application was still valid and ought to be granted, even without reference to the provision of the High Court (Civil Procedure) Rules. He relied on the case of ALESINLOYE VS. OYEDIRAN (2000) FWLR (Pt.3) 479 at 485-486 where Onnoghen, JCA (as he then was) held:
“It is a common ground that the judgment sought to be enforced by the application for committal, is the judgment of the Supreme Court. Section 251(1) of the 1979 Constitution provides that decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Supreme Court. It is therefore not in doubt that the High Court of Kwara State has the power to enforce the judgment under reference.” (Underlining by counsel).
Counsel noted that the provision of Section 251(2) of the 1979 Constitution is ipsissima verba with the provision of Section 287(2) of the 1999 Constitution under which this application was brought. Thus, the above case is on all fours with this case at hand. Counsel further relied on the said case of ALESINLOYE VS. OYEDIRAN supra page 486 to say that the application before the Lower Court was for enforcement of the judgment of the Court of Appeal, the procedure of which is governed by the Sheriffs and Civil Process Act, and Judgment (Enforcement) Rules, made thereunder, not Order 47 of the High Court Rules 2005. He further relied on the case of ADAKA VS. ANEKWE (2002) 6 SCNJ 238 at 247 and added that the provisions of the High Court (Civil Procedure) Rules remains subordinate to the provisions of the Constitution and the Sheriff and Civil Process Act, being a subsidiary legislation. He relied on the case of BUHARI VS. OBASANJO (2005) FWLR (Pt.273) 1 at 215.
Counsel further argued that the learned trial Court was wrong in his pronouncement that commencement of committal proceedings via a mere motion on notice was unknown to the Rules of Court, relying on Order 2 of the High Court (Civil Procedure) Rules, whereas by Order 2 Rule 1 of the said Rules that position is indefensible and unsupportable, which says:
“Subject to the provisions of any enactment, Civil Proceedings may be begun by a writ of summons, originating summons, originating motion or petition as herein after provided.”
He submitted that an originating motion which is also a motion on notice is one of the numerous modes of commencing a substantive case, or proceedings in civil contempt of this nature, and relied on Order 47 Rule 2 of the Kwara State High Court (Civil Procedure) Rules, which says:
“An application for an order of committal shall be made to the Court by motion no notice stating the grounds of the application supported by an affidavit and a written address.”
Also, counsel submitted that the position of the learned trial judge on page 27 of the Ruling, that the Respondent’s right of fair hearing would be breached, if the case is heard on mere motion, rather than by the procedure of arrest, charge and prosecution, was a self induced misconception of the Section 36(6) of the 1999 Constitution; that the issue of fear of learned trial judge, about fair hearing, was unfounded and was not even raised by the Respondent but the Court suo motu, without calling on the parties to address it thereon, and this alone violated the age long principle that court should not pronounce on issue it raised suo motu, without calling for parties address thereon. He relied on the case HARUNA VS. UNIVERSITY OF AGRICULTURE, MAKURDI, (2006) FWLR (Pt.304) 432 at 471.
Interestingly, counsel said, the Respondent, in taking full advantage of his right of fair hearing, had filed, in response to Appellant’s application for committal, a counter-affidavit with a written address in support, and never complained of any violation of his right of fair hearing, that on this premise, too, the trial Court was in error to decline jurisdiction.
He argued that even without considering other provisions of the law, that the trial was empowered to rely on its inherent powers, pursuant to Section 6(6)(a) of the 1999 Constitution, to punish for contempt of Court. He relied on the case of ATAKE VS. A.G. of the Federation (1982) 11& 12 SC (reprint) 63 at 95.
He urged us to resolve the issue one in favour of the Appellant.
On Issue 2 – whether the trial judge was not wrong in failing to commit the Respondent to prison, considering the affidavit evidence and the exhibits attached therewith (upon assuming jurisdiction and considering, the case on the merit after declining jurisdiction), counsel for the Appellant submitted that the trial Court was wrong to have failed to commit the Respondent to prison.
He submitted that, in application for committal of a contemnor for disobedience of Court’s order, only three things must be established or proved, and relied on the ratio by TOBI JCA (as he then was) in the case of ONAGORUWA VS. ADENIJI (1993) 5 NWLR (Pt.293), where his lordship held, thus:
“…To establish contempt of breach of order of injunction, the following elements must be established, (1) the terms of the injunction must be clear and unambiguous (2) it must be proved that the defendant had proper notice of the terms of the injunction (3) there must be a positive proof that the terms of the injunction have been broken.”
On the first element which is clarity and non-ambiguity of the order to be obeyed, counsel submitted that the order of this Court as embodied in Exhibit EA04A was clear and unambiguous and was in compliance with the Order 18 Rule 3(1) of Court of Appeal Rules, 2007. He referred us to pages 107 and 108 of the Record, saying that the order was to the effect that the Respondent should stop parading himself as Eletan of Etan or holding himself out as eligible for that office, until the stool goes round the other two ruling houses of Iremo and Isaoye, and that was doubtless, unequivocal; that it is beyond peradventure that the 1st element, clarity of the order, was proved and established.
On the second element, that the contemnor has notice of the order, counsel said this has been met with the service of Form 48, endorsed with the enrolled order of this Court on the Respondent on 30th June, 2010, and so the Respondent cannot claim ignorance of the order. He relied on the Form 48 and the enrolled order (Exhibits EA04 and EA04A, respectively) on pages 106 and 107 – 108, respectively, of the Record.
On the 3rd element; which is positive proof of breach of the terms of the order or injunction by the contemnor before he can be committed to prison, counsel submitted that the Respondent, having been award of the clear and unambiguous order of this Court, continues to parade or hold himself out as the Eletan of Etan in contemptuous disregard of the order of this Court; that that was eloquently testified to by sundry matters, referred in paragraphs 6 (iv) to 6(xii) of the affidavit in support of the application for committal. He referred us to pages 3 – 6 of the Record.
Counsel submitted that the Respondent did not deny, frontally, any of the depositions in the said paragraphs 6(iv) to 6(xii) of the supporting affidavit in his counter-affidavit, that the trial Court also agreed that the Respondent failed to frontally deny those averments about disobedience of the Court Order. See page 42 lines 16 – 18 of the Ruling, where the judge said:
“I agree with the counsel to the Applicant that there is no frontal denial in the counter-affidavit of the alleged acts deposed to in the supporting affidavit. (paragraph 6(iv) – (xii)…”
Counsel submitted that failure to deny the allegations of disobedience, frontally, amounted to admission of guilt on the part of the Respondent; that it followed, irresistibly, that he was liable and ought to have been committed to prison by the trial Court.
On the effect of failure to deny, of frontally deny depositions in an affidavit, counsel referred us to the case of OSAWE VS. OSAWE (2003) FWLR (Pt.183) 97 at 107, and therefore stressed that the trial Court was wrong to have failed to commit the Respondent, considering the averments of the Appellant in support of the application for committal, and the admission of the Respondent, as the trial Court confirmed his (Respondent’s) failure to deny the averments frontally; that the trial Court was wrong to have placed reliance on paragraphs 5, 6, 7, 8 and 10 of the counter-affidavit of the Respondent (pages 112 – 117 of the Record), and on the Exhibit A3, the alleged application before the Supreme Court, contained on pages 127 – 135 of the Record.
He submitted that a valid order or judgment of Court, once given or delivered by a competent Court, becomes valid, subsisting and ought to be obeyed as a matter of duty, until it is stayed or set aside, on appeal; that obedience of Court order is highly sacred, to the extent that it is of no moment whether or not the Court was right to have made it. He relied on the case of LABOUR PARTY VS. INEC (2009) 2 MJSC (Pt. 1) 101 at 204, where it was held:
“…whether the Court of Appeal was right in making its said order, is of no moment. This is because, that order subsists and must be obeyed by all concerned. It is now firmly settled that a Court must be obeyed even if such order is perverse until such a time that the order is set aside by a competent Court. See the case of OBA ALEDEGBAMI VS. OBA FASANMADE (1988) 3 NWLR (Pt.81) 131; (1988) 6 CNJ.
On the reliance by the lower court on paragraphs 5, 6, 7, 8, and 10 of the Counter affidavit to say that same provided a recognizable shield for the Respondent against committal order”, counsel submitted that a careful reading of those paragraphs shows nothing other than the absence of a subsisting valid appeal and order of stay, as the Respondent has not been able to enter any valid appeal against the judgment of this Court sought to be enforced; he added that even if the Respondent has been able to file appeal against the order sought to be enforced (which was not conceded), that he cannot still be shielded from committal order, since the judgment has not been stayed or set aside, going by the decision in the case of Labour Party vs INEC (supra); that the filing of a valid appeal, without more, cannot operate as a stay of execution of the judgment appealed against. See Section 17 of the Court of Appeal Act Cap 36 LFN, 2004.
On the duty of Court to protect its judgment, counsel relied on the case of ACB Intentional Bank PLC vs. Out (2008) FWLR (Pt.406) 1817 at 1832 – 1833, and lamented that despite the failure and inability of the Respondent to validly initiate the process of an appeal, let alone obtain order for stay, he has painfully found it convenient to brazenly and uncommonly flout the subsisting order of this Court with impunity; that to continue to allow this would amount to compromise and erosion of the ,sanctity and integrity of the Court.
Counsel submitted that Exhibit A3, which the learned trial judge relied on as creating ‘recognizable shield, that is, the alleged application at the Supreme Court, seeking extension of time within which to seek leave to appeal, was wrongly admitted and relied upon; that Exhibit A3 was not certified, being a public document. He relied on Sections 109, 96, 97(i)(e) and 2 (c), 111 and 112 of. Evidence Act, as well as the case of AGBALIAH VS NNAMANI (2005) FWLR (Pt.245) 1052 at 1078; INEC VS. AC (2009) FWLR (Pt.480); ANATOGU VS. IWEKA II (1995) 9 SCNJ 1 at 16; DAGGASH VS. BULAMA (2004) FWLR (Pt.212) 1666 at 1737; ARAKA VS. EGBUTE (2003) FWLR (Pt. 175) 507 at 522.
He concluded on that issue, that Exhibit A3 was wrongly admitted and acted upon by the trial Court and should, thus, be expunged. He relied on the case of AKINDURO VS. ALAYA (2007) FWLR (Pt.381) 1653 at 1673.
On Issue 3, whether the trial Court was not wrong in holding that the Appellant was hasty in taking benefit of Exhibit EA01, Counsel submitted that the learned trial judge was wrong. He restated that in law a judgment becomes effective and subsisting upon pronouncement, unless it is stayed, and that the party in whose favour it was delivered is entitled to take benefit thereof, immediately. Counsel referred us to the content of Exhibit EA01, wherein the Respondent was declared ineligible to occupy the stool of Eletan of Etan, after the demise of his father, the stool being rotational among the three ruling houses; that the Court therefore declared the stool vacant and restrained the Respondent from parading himself as Eletan of Etan; that in order to fill the vacuum created by the judgment of this Court, the family of the Appellant set the machinery in motion by forwarding the name of their candidate to the kingmakers, through Exhibit EA02, and the kingmakers, via Exhibit EA03, confirmed the selection and appointment of the Appellant.
Thus, that Appellant violated no law by taking benefit of the judgment of this Court immediately it was delivered, and that was without prejudice to the right of the Respondent to appeal against the decision of this Court; even then, the Appellant was not in a position to know that the Respondent would appeal against the judgment at the time he (Appellant) took benefit of the judgment (Exhibit EA01)!
Counsel further argued that the judgment being declaratory in nature – a chieftaincy matter – the constitutionally guaranteed right of appeal of the Respondent cannot be said to be “choked or asphyxiated” by the Appellant taking benefit of Exhibit EA01, immediately it was delivered; that the res will not be destroyed as the Respondent can still get back to office; if the alleged appeal by him against Exhibit EA01 is decided in his favour.
Counsel submitted that the trial Court was misled and influenced by its impression that Appellant was hasty in taking benefit of the Exhibit EA01, to dismiss the case of the Appellant; that such opinion of the trial court could not have been premised on any law, but was speculatory and sentimental. He relied on the case of ORHUE vs NEPA (1993) 5 SCNJ 126 @ 141 where Omu JSC held:
‘It has been held that sentiment has no place in judicial deliberation, since cases must be decided on law and facts and not on sentiment. See Victor Emekoma Ukachukwu Ezeugo vs. Nelson Commander Ohanyere (1978) 6 and 7 SC 171 @ 184.”
Finally, counsel urged us to resolve the three issues in favour of the Applicant.
At the hearing of this Appeal on 23/2/12, Appellant had placed reliance on the Exhibit HRH (The ruling of the Supreme Court in SC.280/2010), as additional record. As earlier stated in this judgment, the Respondent did not file any brief to challenge this Appeal. But then, the Appellant still has a duty to establish his claims to succeed, even when the appeal is determined on Appellant’s brief alone, pursuant to Order 18 Rule 10 of this Court’s Rules, 2011.
The issue 1 which queried the decision of the trial Court, declining jurisdiction to hear the case, having regard to the procedure adopted to pursue the committal of the Respondent, appears to have been spent, since -there is evidence to show that despite declining jurisdiction to do the case, the court, in fact, went on to hear the and determine the application on merit and dismissed it! See paragraph 2.07 and 2.08 of the Appellant’s brief.
It would, therefore, in my humble opinion, amount to mere academic exercise to consider that issue any further, since it appears, by hearing the application and determining it on the merit, the learned trial Judge had, wittingly or unwittingly, overruled himself on the issue of lack of jurisdiction to hear the application for committal having regard to the procedure adopted by the Appellant to enforce the judgment of this court in Exhibit EA01.
In the case of Odedo vs INEC (2008) 17 NWLR (Pt. 1117) 554, it was held that:-
“…An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary to the case at hand…(it) could be a hypothetical or moot question (and)… does not relate to the live, issues in the litigation, because it is spent as it will not enure any right or benefit on the successful party.” (underlining mine).
See also Tanimola vs. Mapping Godatta Ltd. (1995) 6 NWLR (Pt.403) 617; Nwodoshi v. ACB (1995) 6 NWLR (Pt.404) 658; Ogbonna vs. President FRN (1997) 5 NWLR (Pt.504) 281; Ndulue vs. Ibezim (2002) 12 NWLR (Pt.780) 139 and the unreported decision at this court in CA/YL/EPT/19/2011. (Alh. Rilwanu Dauda Julde & Anor. vs. People Democratic Party & Ors), delivered on 6/1/12.
I do not therefore think the Appellant should have dissipated his legal energies to prove that the learned trial Judge was seised with jurisdiction to hear and determine the application pursuant to the laws relied on, as the trial court had, rightly, somersaulted and heard the application.
However, it must be stated that section 287(2) of the 1999 Constitution, as amended, section 72 of the Sheriffs and Civil Process Act and Order 9 Rule 13 of the Judgment (Enforcement) Rules and even the inherent jurisdiction of the court, pursuant to section 6(6) of the 1999 Constitution (as amended), clearly vest every court of record with jurisdiction to hear and determine applications relating to contempt proceedings, to protect and enforce the Judgments and orders of superior courts.
There cannot be any question as to the procedure used by the Appellant to seek the enforcement of the Orders of this court embodied in Exhibit EA01 and in the enrolled order (Exhibit EA04A), that is, by Motion on Notice, after the issuance service and of Forms 48 and 49 on the respondent, warning the same of the consequences of disobedience to valid subsisting court order. This is because, the provisions of Order 47 Rule 2(1) of the Kwara State High Court (Civil Procedure) Rules, 2005, is quite explicit on the process and procedure to be adopted to seek the committal of a contemnor. It says:-
“An application for an order of committal shall be made to the court by motion on notice stating the grounds of the application supported by an affidavit and a written address.”
See also order Rule (1) of the High court (civil procedure) Rules, which also provides for ‘Originating Motion’ as one of processes adoptable to originate a civil suit or process in court. Of course’ originating Motion refers to ‘Motion on Notice’ or ‘Motion Ex-parte’, and for Ex- the purpose of bringing application for an order for committal, Order 47(2)(1) specifically states ”Motion on Notice’ as the process needed to originate such a suit.
‘That was the process the Appellant used to initiate the suit and he had placed reliance on the said Order 47 of the Kwara State High Court (Civil Procedure) Rules as well as on other relevant laws, including section 287(2) of the 1999 Constitution, which enjoins the High court and other subordinate Courts to enforce the decisions and orders of the Court of Appeal.
The section states: –
“The decisions of the Court of Appeal shall be enforced in any part of the federation by all authorities and persons and by Courts, with subordinate jurisdiction to that of the Court of Appeal.”
The ratio in the case of Alesinloye vs. Oyediran (2000) FWLR (Pt.3) 479 @ 485, which the Appellant relied on, and earlier reproduced in this judgment, clearly shows that the High Court has power and a duty to enforce the judgment under reference. It was, therefore, strange for the learned trial judge to say:
“One is also bound to agree further with the respondent’s counsel when he submitted that this Noble Court can only entertain contempt Application/proceeding s that fall squarely within Order 47 Rule 1(2)(a),(b) or (c) and that the present proceeding is outside what the aforestated Rule covers”
Order 47 Rule 1(1)(2)(a)(b) and (c) provides as follows:
“(1) The power of the Court to punish for contempt may be exercised by an order of committal,
(2) An order of committal may be made by the court where contempt of court
a) is committed in connection with
(i) Any proceedings before the court;
(ii) Proceedings in an inferior court
b) is committed in the face of the court, or consist of disobedience to an order of the court, or a breach of an undertaking to the court; or
c. is committed otherwise than in connection with any proceedings.”
It is quite clear that even by the Kwara State High Court (Civil Procedure) Rules alone, enough provisions are disclosed to ground the jurisdiction of the learned trial court, where contempt of court is committed otherwise than in connection with any proceedings before it.
That appears to be the purported of order 47 Rule 1(2)(c) of the Rules, and it becomes far more clear, when that provision is read jointly with the Constitutional provision in section 287(2) of the 1999 Constitution, which comes inform of an order to the trial court to enforce the decisions of the Court of Appeal. And by the authority of the case of the Labour Party vs INEC (2009) 2 MJSC (Pt.1) 101 @ 204, it does not matter whether or not the Court of Appeal was right in making its said order. Once the order subsists, it must be obeyed by all concerned, “It is now firmly settled that a court order must be obeyed even if such order is perverse, until such a time that the order is set aside by a competent court. See also Oba Aladegbami vs Oba Fasanmade (1988) 3 NWLR (Pt. 81) 131.”
I shall take the 2nd and 3rd issues together, that is, Whether the trial Court was wrong in failing to commit the Respondent to prison, in the light of the evidence adduced and whether the trial Court was wrong in holding that the Appellant was hasty in taking the benefit of the decision of this Appeal in Exhibit EA01. The Appellant’s counsel had relied on the Onagoruwa vs. Adeniju (1999) 5 NWLR (PT.293) 317, wherein, my lord, Niki Tobi JCA (as he then was) stated what must be proved in contempt application, thus:
“To establish contempt of breach of an order of injunction the following elements must be established:
1. The terms of the injunction must be clear and unambiguous;
2. It must be proved that the defendant had had proper notice of the terms of the injunction;
3. There must be a positive proof that the terms of the injunction have been broken.”
Counsel argued that all the elements of proof above have been established in the application before the trial judge; that the judgment of the court in Exhibit EA01 was clear and unambiguous as could be seen in the enrolled order of court thereof (EXHIBIT EA04A); that the Respondent was duly given notice of the judgment and order of court, having been served with form 48 (Exhibit EA04) about the consequence of disobedience to the court order, and with the enrolled order of court (Exhibit EA04A). Counsel also relied on paragraphs 6(iv) to 6(xii) of the affidavit in support to prove acts of breaches of the order of court by the Respondent- See pages 3-6 of the Record of Appeal:
(6)(iv) that the Respondent despite his knowledge of the subsisting order continued to parade himself as the Eletan of Etan by maintaining the erection of a sign post in front of his house, styled by him as his palace with the inscription “THE ROYAL PALACE OF ELETAN OF ETAN, EKITI LGA, KWARA STATE.” See Exhibit EA05-taken on 16/9/2010.
(v) that the Respondent till date continues to maintain a customized plate number with inscription ‘Eletan of Etan’ affixed to his Blue 190 Mercedes Benz Car.
(vi) That the Respondent has continued to hold court with a handful of followers as the Eletan of Etan in his styled palace and impresses it around that he is still the Eletan.
(vii) That after service of the form 48, he has also among other activities instigated the Inika family of Etan to present a candidate to him for purposes of installation into the vacant chieftaincy of Onika of Etan.
(viii) That towards consummating the installation of the Onika, he has been holding meetings in the self styled palace with one Abiodun Bamisaye, the Afin on Iloke Etan, one Mr. Inaolaji Joseph Dolapo who has been posturing as Chief Alawe of Etan and some members of Inika family, and the last of such meetings was held on 6/9/2010.
(ix) That the Respondent has also been setting the police and other security agencies against the judgment creditor applicant to frustrate the Applicant activities as the Eletan on the premise that he (Respondent) is the subsisting Eletan, that sometime in September 2010, the Respondent went to police in Osi and, raised a phantom security alert on the footing that the community meeting called by the Applicant for the progress of Etan town was without his (Respondent’s) permission as Eletan of Etan and the meeting was thereupon ordered to be cancelled by the police; he relied on Exhibit EA06 and EA06A as invitation letters to the meeting by the Applicant.
(x) That the Respondent has been using all manner of influence to make the state Government to continue to deal with him as the Eletan, at the expense of the Applicant, duly appointed, sequel to the judgment of the Court of Appeal.
(xi) That the Respondent has also repeatedly harassed and disturbed the activities of members of the vigilante group formed in the town, on the stand point that the group does not have his blessing as the Eletan.
(xii) That the Respondent decks himself with royal beads, royal horse tail, beaded crown and other paraphernalia of the Oba, almost on daily basis, wherever he goes.
Those facts and averments by the Appellant were never denied by the Respondent, who in answer to the paragraph 6(iv) to 6(xii) of the Applicant’s affidavit in support, simply said, in paragraph 4 of his counter-affidavit:
“I have read the Nine (9) paragraphs Affidavit in support of the Motion for committal which paragraphs 6, i, ii, iii, iv, v, vi, vii, viii, ix, x, xi, xii, 7, 8 and 9 and (sic) false.”
Of course, the trial court also held that the Respondent did not deny the averments in paragraphs 6(iv) – (xii) frontally.
The law is now quite clear on the fact that, an affidavit not denied or positively controverted, is deemed to be admitted by the adverse party. And to deny an affidavit, the adverse party does not have to speak in tongues or in subterfuge, as he is required to deny the averment frontally and positively, leaving the court or any reader of his denial not in doubt of his adverse position to the one advanced or canvassed in the supporting affidavit. See the case of Hon. Maryati Audu Dogan & Ors. vs. A.G. Taraba State, an unreported decision of this court in CA/J/243/2010, delivered on 25/5/2011, pages 35 – 36 thereof.
It is settled law that an affidavit evidence constitutes evidence and any deposition not challenged is deemed admitted. H.S. Engineering Ltd. vs. A.S. Yakubu Ltd. (2002) 175 LRCN 134, ratio 2, Ajomale vs. Yaduat (1991) 5 SCNJ 178, Nzeribe vs. Dave Engineering Co. Ltd. (1994) 2 SCNJ 161; Oyewole vs. Akande (2009) All FWLR (Pt.491) 813.
The trial judge had, however, relied on paragraphs 5, 6, 7, 8 and 10 of the Respondent’s counter-affidavit and on his counsel’s address to say that the Respondent had what the court termed “recognizable shield from committal order.” The said paragraphs of the counter-affidavit stated as follows:-
“5) That I know as a fact that the Respondent herein on 18/6/2010 in exercising his constitutional right of Appeal against the judgment of the Court of Appeal filed an application for leave to appeal against the judgment of the court, both on grounds mixed law and fact.
6) That also on 24/6/2010 the Respondent here also filed before the Court of Appeal an application for stay of execution of the judgment of the Court of Appeal delivered on 10/6/2010, pending the hearing and determination of the Appellant’s (Judgment Debtor herein) appeal at the Supreme Court.
7) That the two (2) applications mentioned in paragraphs 5 and 6 above were first fixed for hearing on 27th September, 2010 and later re-fixed for 21st September, 2010, dates which are outside the three months allowed by law within which to bring an appeal, certified copies of the Hearing Notices are herewith attached and marked Exhibits A1 and A2, respectively.
8) That when we realized that the applications mentioned in paragraphs 5 and 6 above may have been affected by effluxion of time, our law firm, on 20/9/2010, promptly filed another application before the Supreme Court for an order of extension of time within which to appeal, leave to appeal on grounds other than facts alone and an order staying the execution of the judgment of the Court of Appeal pending the determination of the Application/and/or appeal to be lodged pursuant to the application. The application before the Supreme Court and the accompanying brief of argument was served on all the parties to the appeal on 21st September, 2010 and on Shola Abifarin Esq., counsel in the law firm of the Judgment Creditor’s counsel which are herewith attached and marked Exhibit A3.
10) That I know as a fact that the applications of the judgment Debtor herein is still pending before the Supreme Court, Abuja.”
Being persuaded by those paragraphs of the counter-affidavit and address of the counsel thereon, the learned trial court held on pages 377 and 378 as follows:
“I am of the view that the Applicant rushed the process of execution or the giving effect to the Exhibit EA01 (or Exhibit J) with a view to choking or asphyxiating the constitutionally guaranteed right of appeal of the Respondent and thereby speciously necessitating these committal proceedings. I quite agree with the learned counsel to the Respondent…that the Respondent never slept over his right of appeal and he consistently, to the knowledge of the Applicant, demonstrated his clear intention to challenge Exhibit EA01…on appeal.
The law, as I understand it, is that a party will not be held for contempt merely because he has not obeyed the order which he is appealing against or which he wants stayed or suspended pending appeal, I refer to prayer 5 in Exhibit A3 in this regard.”
The respondent’s Exhibit A3 is the Motion on Notice which he filed at the Supreme Court on 20/9/10, and the prayer 5 therein is the order the Respondent (Applicant therein) sought “staying the execution of the judgment of the Court of Appeal, Ilorin Division delivered on 10/6/2010 pending the hearing and determination of this application and/or the appeal to be lodged pursuant to this application.”
The Respondent failed and/or refused to contest this Appeal, and so has denied this court of the opportunity to hear from him what has become of his alleged appeal or application for leave to be allowed to appeal out of time.
But the Appellant obtained the leave of this court on 1/11/11 to file additional Record, which he did, as per Exhibit HRH, being the Ruling of the Supreme Court in suit No. SC.280/2010, delivered on 2/2/11 in the case of H.R.H Oba Joshua .O. Aina (Appellant) and Ezekiel Ogunleye & Ors (Respondents). The short ruling delivered by A.M. Mukhtar JSC, CON simply states:
“Orders 1 – 4 as prayed. Time within which to seek leave to appeal against the Court of Appeal, Ilorin Division judgment delivered on 10/6/10 is extended. Leave is hereby given to appeal, and time within which to appeal against the said Judgment is extended by 60 days from today. Leave is hereby given to file and argue grounds of mixed law and facts. Prayer (5) is struck out for being incompetent.” (Underlining mine)
There is nothing to show that the Respondent took advantage of the leave granted above to file appeal against the said judgment of this court, having been allowed 60 days from the date of the ruling (2/2/11) to file the appeal. Of course, it can be appreciated that if the respondent had, in fact, appealed, he would have been quick to disclose such facts, in the circumstances of this Appeal, having been served with all the processes in this appeal.
It is however clear that prayer five (5) of the Respondent at the Supreme Court, that is, to stay execution of the judgment of this court pending the hearing and determination of his application and/or the appeal to be lodged pursuant to his application, was refused and struck out for being incompetent!
Was the trial judge therefore right to hold, as he did, that the Respondent had a ‘recognizable shield’ against being committed for contempt; that the Applicant rather rushed to take benefit of judgment and that ‘a party will not be held for contempt merely because he has not obeyed the order which he is appealing against or which he wants stayed or suspended pending appeal?’
I think the learned trial judge was in a deep and grave error by so holding and he was, in fact, working against the law, granting the Respondent judicial licence to tear the judgment of this court into pieces, that is, Exhibit EA01 and the enrolled Order thereof (Exhibit EA04A) served on him along with form 48, and to defecate on the Order. No wonder then the Respondent would not even deem it necessary to pursue any appeal against the judgment of this court, or to contest this appeal!
Even when the Respondent did not appeal the judgment of this court (and has still not appealed), the learned trial judge held that he (Respondent) did not sleep over his right of appeal, simply because he brought a belated motion for extension of time and for leave to appeal, which he was not even committed to prosecute! And while pretending to be seeking leave to appeal, he was busy performing the office of Eletan of Etan, holding the decision of this court in utter contempt and derision, as he had personally annulled the court decision in his world, ever before pretending to be seeking a stay of the same by the Supreme Court!
The learned trial judge therefore dealt serious blow on the integrity of the judgment of this court and on the judicial process, when he held that ‘a party will not be held for contempt merely because he has not obeyed the order of which he is appealing against or which he wants stayed or suspended pending appeal.’
That would mean that the moment a party is not happy with the decision of a court, the party can ignore that decision act against it and do as he wishes, especially if he appeals or wants to appeal against the decision!
That can only obtain in and befall decisions reached in beer-parlours and other unserious social organizations, NOT a COURT OF LAW! A court will cease to be one, to suffer such indignities! A court’s decision has to be obeyed and/or enforced, at the pains of sanction against disobedience. See Odogwu vs. Odogwu (1992) 2 NWLR (Pt.225) 539; Labour Party vs. INEC (supra) holding 8.
“An order of court must be obeyed by all concerned until it is set aside by a competent court notwithstanding that the order is perverse.
The position of the law cannot be said to be recondite, concerning the position of an appellant, who is appealing against a decision or order of court for which he is cited for contempt. In that case the contempt proceeding may abate while the appeal against the judgment is yet to be disposed of. See the case of Odogwu vs. Odogwu (supra)
“On when a person in disobedience of court order can be heard. The common law rule precluding persons in disobedience of the orders of Court against them from being heard in respect of the matters which they stand in disobedience permits of an exception where the order disobeyed was made without jurisdiction, or where the party in disobedience is challenging the validity of the order. (P. 554, paras. F-G)”. (Underlining mine)
Even the situation painted above would not permit an appellant to treat the judgment he is appealing against with levity, and parade himself about as if no judgment had issued against him. He would lie low and soberly pursue his appeal, praying for the decision to be overturned for him to bounce back.
That, certainly, is not the situation in this appeal, where no appeal has been filed or entered against the judgment in EXHIBIT EA04, but the Respondent still parades as the Eletan of Etan, savouring the glory of the royal office.
By law, a judgment comes to effect upon pronouncement, and the favoured party is entitled to take the benefit of it straight away, except it is expressly stayed. See the case of ACB INT’L BANK PLC V OUT (2008) ALL FWLR (PT.406) 1817; AMORI V IYANDA (2008) ALL FWLR (PT.416) 1864
It is therefore strange that the trial court took upon itself to rebuke the Appellant for promptly taking the benefit of the decision of this court in Exhibit EA01, accusing him of rushing to do so. Meanwhile, the judgment of this court in Exhibit EA01 was delivered on 10/6/2010 and the Appellant took out the application before the trial court on 22/9/2010- over three (3) months, after the judgment, and the utter denigration of the said judgment by the Respondent, who never appealed against it!
Generally, the law is on the side of the successful party, to assist him to reap the benefit(s) of the judgment. See NZERIBE V. DAVE ENGINEERING CO. LTD. (1994) 9 SCNJ 161.
In the case of Labour Party vs INEC (supra) the apex court held that ‘…whether the Court of Appeal was right in making its said order is of no moment. This is because, that order subsists and must be obeyed by all concerned. It is now firmly settled that a court order must be obeyed even if such order is perverse, until such a time that the order is set aside by a competent court.’ See Oba Aladegbami vs. Oba Fasanmade (1988) 3 NWLR (Pt. 81) 131; Jimoh Akinfolarin & Ors. vs. Solomon Oluwole Akinola (1994) 4 SCNJ 30; Tunde Osunrinde & Ors. vs. Mutairu Togun Ajamogun & Ors. (1992) 7 SCNJ 79.
Exhibit EA04A, the enrolled order of this court on Exhibit EA01 (Judgment of this court in appeal No. CA/IL/41/2009 is very clear and unambiguous, as paragraph 2(i)(ii)(iii) and (v) thereof stated explicitly, as follows:
i) “That there is no judgment of court that has ever pronounced the claimant as the Eletan of Etan and there is no judicial basis for his recognition as such.
ii) That on the footing of the judgment of the High Court of Northern Nigeria delivered by Mohammed Bello J, the claimant was/is ineligible of vie for the chieftaincy stool of Eletan of Etan immediately after the demise of his father, the stool being rotational between (sic) the three ruling houses of Iloyan, Iremo and Isaoye respectively.
(iii) That the purported reports of various panels of enquiry recognizing the claimant as the Eletan of Etan and all governmental or administrative recognition of the claimant as such are null, void and of no effect, being in flagrant disregard and contravention of the decision by Mohammed Bello J, as well as the native law and custom of Etan….
v) That the claimant/1st Respondent/Cross-Appellant be and is hereby, restrained from further parading himself as the Eletan of Etan or holding himself out as eligible for that office until the stool has gone through the other two ruling houses of Iremo and Isaoye…”
Of course, the Respondent in this appeal was the claimant/1st Respondent/Cross-Appellant referred in the Order (Exhibit EA04A).
By flouting that order, as per paragraphs 6 (iv) to 6 (xii) of the Appellant’s affidavit in support of the motion for committal (which have not been denied), and with the Respondent’s penchant to continue in the said acts of disobedience, the trial court had a duty to protect the court and enforce the orders/decision of this court in Exhibit EA01, as shown in the enrolled order (Exhibit EA04A), and to commit the Respondent to prison to purge himself of the contempt.
“The issues are therefore resolved in favour of the Appellant. This appeal, therefore, succeeds, and I set aside the Ruling of the learned trial court in the suit No. KWS/41M/2010. In its place, pursuant to Order 4 Rule 4 of the Court of Appeal Rules 2011, I hold that the Application of the Judgment Creditor/Applicant is meritorious and should be granted. It is accordingly granted and the Respondent, Prince Joshua O. Aina, is hereby held for flagrant disobedience of the subsisting order of this court in Exhibit EA01 and EA04A.
He is, accordingly, committed for contempt and hereby sent to prison, where he shall remain for a period of three (3) months, or until he purges himself of the contempt.
The Inspector-General of Police is hereby directed to give effect to this Order.
Each party to bear his costs.
TIJJANI ABDULLAHI, J.C.A: I have had the privilege of reading in draft the lead judgment of my learned brother, I.G. Mbaba, JCA, and I entirely agree with his reasoning and conclusions arrived thereat. For support and emphasis, I add a few words.
A cursory look at the ruling of the learned trial Court one would conclude that the learned trial Judge declined jurisdiction on a misconception of the committal proceedings when his lordships said at pages 18 – 19 of the Ruling/Judgment contained at pages 304 – 380 of the record that:
“One is also bound to argue further with the Respondent’s Counsel when he submitted that this Noble court can only entertain contempt Applications/Proceedings that fall squarely within Order 47 rule 1(2)(a), (b) or (c) and that the present Proceeding is outside what the afore-stated Rule covers”
I am of the view that the trial Judge and the counsel to the Respondent could not have been right to declare that the trial Court can only entertain committal application which falls squarely within Order 47 Rule (1)(2)(a)(b) or (c) of the Kwara State High Court (Civil Procedure Rules).
It is also my view that the 1999 Constitution, the Sheriffs and Civil Process Act as well as Order 9 Rule 13 of the Judgment (Enforcement) Rules vest the trial Court with jurisdiction to enforce judgment of superior Courts via committal application. Hence, the inclusion of Order 47 Rule (1)(2)(a), (b) or (c) of the Kwara State High Court (Civil Procedure) Rules on the motion paper was only complementary to the laws under which the application was brought.
For these reasons and the-detailed ones contained in the lead judgment, I too allow the appeal and commit the Respondent to three months imprisonment or until he purges himself of the contempt of this Court.
OBANDE OGBUINYA, J.C.A: I have had the privilege of reading, in draft, the well-articulated leading judgment delivered by my learned brother I.G. Mbaba, JCA, and I concur with his reasons and conclusions.
The point must be rammed home that an order issuing from any court, a fortiori an order of the Court of Appeal, the penultimate court in the judicial ladder, must be obeyed to the letters. It is of no moment that such order is wrongly made as long as it has not been set aside by an appellate court. Obedience to order of court is part and parcel of rule of law, which, in turn, is sina qua non for orderliness and development of democracy in any society. Contrariwise, disobedience of court order, as amply demonstrated by the respondent’s unrepentant conduct, is capable of igniting chaos and anarchy in any country. The respondent, erroneously, think that the court is a toothless bulldog which can bark without biting. By his aberrant desecration of the order of this court, made on 10/06/2010, he has insulted the law and he must incur its wrath.
On account of the foregoing, coupled with the detailed reasons advanced in the leading judgment, I, too, allow the appeal. I abide by the orders made in the leading judgment.
Appearances
Y.A. Alajo Esq.,For Appellant
AND
Respondent: unrepresented.For Respondent
