JAMES IDIEGE OKO v. MR. EDE AGANYI (2012)

JAMES IDIEGE OKO v. MR. EDE AGANYI

(2012)LCN/5623(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of October, 2012

CA/C/136/09

RATIO

CONTEMPT OF COURT: WHAT WILL AMOUNT TO CONTEMPT OF COURT

By way of a general statement, it is indeed difficult to give an exact definition of what amounts to or what contempt of court is in all cases, since the facts and circumstances vary from one case to another. As a result, contempt or what may amount to contempt of court would depend on the peculiar facts and circumstances on, each case. However, contempt of court has been defined to mean and include, any act or conduct which is calculated and tends to bring into disrespect, scorn, or disrepute, the authority of the court and administration of justice. An act which is done to embrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or dignity, either in the face of the court or outside of the court. See AWOBOKUN v ADEYEMI (1968) NMLR 289; EZEJI v IKE (1996) 1 NLR 173; RE: G. M. BOYO (1970) 1 ALL NLR, 111; EJEMBI v A. G. BENUE STATE (2003) 16 NWLR (846) 337.PER MOHAMMED LAWAL GARBA, J.C.A.

CONTEMPT OF COURT: CLASSIFICATION: CONTEMPT OF COURT CAN BE DIVIDED INTO CIVIL AND CRIMINAL CONTEMPT

Contempt of court in classified in two civil and criminal. A civil contempt basically comprises of failure or refusal to obey or comply with a specific order of the court directed at the party named therein. Criminal contempt on its part, consists of words or acts which obstruct, tend to obstruct or interfere with the administration of justice. The law however is that contempt of court whether civil or criminal, is sui generis and the standard of proof of the disobedience of the order of the court is not just on the balance of probabilities, but beyond reasonable doubt because it is punished as if it was a criminal offence. See OKEKE v A. G. ANAMBRA STATE (1997) 9 NWLR (519) 123; AGBACHOM v THE STATE (1970) 1 ALL NLR 69 at 76; EZEJI v IKE (1997) 2 NWLR (486) 206.PER MOHAMMED LAWAL GARBA, J.C.A.

CONTEMPT OF COURT: WHICH COURT HAS THE INHERENT POWER AND AUTHORITY TO PUNISH FOR CONTEMPT OF COURT

CONTEMPT OF COURT: THE ESSENCE OF THE CONCEPT OF COURT
It may be recalled that the essence of the concept of contempt of a court revolves around disobedience of an order of court in given proceedings or doing acts or conducts which are intended manifestly to undermine the authority and dignity of the court and showing disrespect to the court. What amounts to disrespect or interference or conducts or acts which undermine the authority of a court is a matter of fact but a charge of contempt is a serious one which has to be proved beyond reasonable doubt to the satisfaction of court before a committal order can properly be made. The courts are enjoined to use or invoke the power to punish for contempt sparingly and only in clear cases of willful act or conduct which tend to or indeed showed disrespect to the authority and dignity of the court. The Supreme Court in the case AGBACHOM v. THE STATE (supra) had stated the position thus:
“Whether the contempt is in the face of the court or not in the face of the court, it is important that it should borne in mind by judges that the court should use its summary powers to punish for contempt sparingly. It is important to emphasis the fact that judges should not display undue degree of sensitiveness about the matter of contempt and they must act with restraint of these occasions. We recall the observation of Lord Russell of Kilowen in R. v. Gray (1900) 205 36 at 41 that “jurisdiction to deal with contempt summarily should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt.”PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

JAMES IDIEGE OKO
(For himself & on behalf of OKO OMAGU Family of Akpama, Ukpah-Bekwarra LGA) Appellant(s)

AND

MR. EDE AGANYI
(For himself & on behalf of AGANYI ADIE family of Akpama, Ukpah-Bekwarra LGA) Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Cross River State High Court contained in the ruling delivered on 23/4/2009 in Suit No HD/5/2008, dismissing a motion filed by the Appellant for the committal of the Respondent for alleged contempt of court for breach of an undertaking by their counsel.
The learned counsel for the Appellant felt aggrieved by that decision and so he filed the notice and ground of the appeal against it on the 4/5/2009. Because of their brevity and the need to fully appreciate the three grounds of the appeal, it is expedient and so I can afford to set out them in detail. They are as follows:
“GROUND ONE
ERROR IN LAW: The learned trial judge erred in law in holding that “the undertaking by counsel for the defendants in court, albeit, an undertaking is not such that a breach of same can be treated as civil contempt.”
PARTICULARS OF ERROR
1. There are no two types of undertaking known to law.
2. The Respondents did not deny making an undertaking to the court.

GROUND TWO
ERROR IN LAW: The learned trial judge erred in law in holding that the Respondents were not in contempt of court when:
1. The Respondents did not deny making mounds on the eastern boundary of the portion of land in dispute during the pendency of this suit.
2. The Respondents did not deny constructing a building at the western boundary of the portion of land in dispute during the pendency of this suit.
3. The Respondents did not deny entering the portion of land in dispute and harvesting palm fruits therefrom during the pendency of this suit.

GROUND THREE
ERROR IN LAW: The learned trial judge erred in law in refusing to make a committal order against the Respondents when:
PARTICULARS OF ERROR
1. There was uncontradicted/unchallenged evidence before the trial court establishing that during the pendency of this suit, the Respondents conducted themselves in a manner that defied the authority and dignity of the court.
2. The learned trial judge failed in his duties to invoke his judicial powers to make an order of committal against the Respondents in order to protect the integrity, dignity and reputation of the judiciary.”

In compliance with the Rules of the court, the Appellant’s brief was filed on the 9/7/09 and served on Mr. S. Gbebi Nlul, Esq. for the Respondent in court on the 28/2/12.
On the 3/5/12, the court granted the Appellant’s motion for the appeal to be heard and determined on the Appellant’s brief alone in the absence of any record that the Respondent counsel had filed the Respondent’s brief in response or reaction to the Appellant’s brief by that day.
The appeal was thereafter set down for hearing on the 25/9/12 with an order by the court that the Respondent’s counsel be served with Hearing Notice to that effect before then. On the 29/9/12 when the appeal came up for hearing, the Respondent was absent and not represented by counsel even though the report of service by the Bailiff of court indicated that the learned counsel for the Respondent was duly served with hearing notice as directed by the court. There was no communication to the court from him.
Mr. Julius O. Idiege, Esq., appeared for the Appellant at the hearing and adopted the Appellant’s brief in support of the appeal, urging us to allow the appeal, invoke the provisions of Order 4, Rule 3 of the Court of Appeal Rules, 2007 and make an order of committal against the Respondent.
In the absence of a Respondent’s brief, this appeal is uncontested since there are no submissions to be considered in opposition or to dispute or challenge the submissions in the Appellant’s brief, supporting the appeal. That fact alone however, as is settled in judicial practice, does not automatically translate into the success of the appeal which depends entirely on the viability and potency in law, of the submissions made in support of the appeal. The court even in this situation has a duty to consider and assess the submissions made in the Appellant’s brief and make finding/s as to whether the appeal is sustainable in law. See JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (470) 101; SALAU v. PARAKOYI (2001) 13 NWLR (731) 602.
The facts from which the decision of the High Court arose were that the Appellants had instituted an action against the Respondents for a declaration of customary right of occupancy over a piece of land and filed a motion for interlocutory injunction against them in respect of the land. On the 8/3/00, when the motion for injunction came up for hearing, the High Court stated that, “I prefer the matter being heard at once instead of the interlocutory injunction” as shown at page 13 of the pointed record of the appeal. In reaction to the statement by the court, Mr. B. Obi, counsel (who appeared for the Respondents who were Defendants before that court) said thus:-
“I will ensure that my clients would be law abiding to allay the fears of the Plaintiff.”
On his Part, J. O. Idiege counsel for the plaintiff/Appellant responded as follows:-
“If there is such an undertaking then the matter could go on for hearing.”
Eventually, the High Court recorded that:-
“By the consent of both counsel matter adjourned to the 27th April, 2006 for hearing.”
Thereafter the case did not come up before that court until the 26/11/2007 when it was further adjourned to the 19/12/07 for the report of settlement, by the consent of both counsels, as borne out by page 14 of the record of the appeal.
However instead of a report of settlement of the case by the parties, the motion giving rise to the present appeal was filed before that court. The learned counsel for the Appellant had raised two (2) issues in the Appellants’ brief as follows:
3.1 Whether the undertaking by Counsel for the Respondents is not such that a breach of same can be treated as civil contempt.
3.2 Whether the learned trial Judge did not fail in his judicial duties in refusing and/or failing to commit the Respondents for contempt of court notwithstanding the numerous and several admissions by the Respondents that they breached the undertaking made by counsel on their behalf.”
I would consider the two (2) issues in the determination of the appeal.

ISSUE 1
The submissions on this issue are that the undertaking by the learned counsel for the Respondent before the High Court is such that its breach is punishable as contempt under Order 42 Rule 1(1) & (2) and 2(1) and (2) of the High Court (Civil Procedure) Rules, 1987.
Learned counsel said that the provisions do not qualify the type of undertaking the breach of which may be treated as civil contempt capable of enforcement by the court. The provisions of Order 42 and Paragraph 3676 of page 3878 of the Supreme Court Practice (The White Book) 1997 Vol. 2, were set out in support of the point.
In addition, the proceedings of the High Court on 8/3/2000 which appeal at page 13 of the record of the appeal (highlighted earlier) as well as paragraphs 20 – 24 of the Appellants’ affidavit in support of the motion for injunction, were set out and it was submitted that the Respondents fully appreciated the fears of the Appellant before the undertaking that they would be law abiding and allow them until the determination of the case.
It was the further submission of the learned counsel that the facts in the case of ABBAS v. SOLOMON (2001) FWLR (67) 847 relied on by the High Court in its decision were different from the Appellants’ case and so not applicable.

ISSUE 2
The learned counsel had submitted that there was unchallenged evidence and even admission of the breach of the undertaking by the Respondents. Reference was made to Paragraph 10 of the Appellants’ initial as well as paragraphs 6, 7, 10 and 11 of the further and better affidavit in support of the motion for committal and it was argued that paragraph 7 of the Respondent’s counter affidavit was contradictory. The cases of OBUN v EBU (2006) ALL FWLR (327) 419 at 449, and DAGAYYA v THE STATE (2006) ALL FWLR (308) 1212 at 12356 were cited on admissibility of unchallenged evidence and the meaning of a contradictory statement, respectively. According to learned counsel, the Respondents did not deny the Appellants’ averments on their acts of breach of the undertaking made to the High Court and so the High Court had failed in its duty to commit them for contempt, relying on the cases of ATAKE v. THE PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA (1982) 11 SC 153; MIL. ADMINISTRATOR OF LAGOS STATE v. OJUKWU (2001) FWLR (50) 1779 at 1800 and CANDIDE-JOHNSON v. EDIGON (1990) 1 NWLR (129) 659 at 608. We were urged to invoke the provisions of Order 4, Rule 3 of the CAR, 2007 and make an order of committal against the Respondents.
By way of a general statement, it is indeed difficult to give an exact definition of what amounts to or what contempt of court is in all cases, since the facts and circumstances vary from one case to another. As a result, contempt or what may amount to contempt of court would depend on the peculiar facts and circumstances on, each case. However, contempt of court has been defined to mean and include, any act or conduct which is calculated and tends to bring into disrespect, scorn, or disrepute, the authority of the court and administration of justice. An act which is done to embrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or dignity, either in the face of the court or outside of the court. See AWOBOKUN v ADEYEMI (1968) NMLR 289; EZEJI v IKE (1996) 1 NLR 173; RE: G. M. BOYO (1970) 1 ALL NLR, 111; EJEMBI v A. G. BENUE STATE (2003) 16 NWLR (846) 337. Contempt of court in classified in two civil and criminal. A civil contempt basically comprises of failure or refusal to obey or comply with a specific order of the court directed at the party named therein. Criminal contempt on its part, consists of words or acts which obstruct, tend to obstruct or interfere with the administration of justice. The law however is that contempt of court whether civil or criminal, is sui generis and the standard of proof of the disobedience of the order of the court is not just on the balance of probabilities, but beyond reasonable doubt because it is punished as if it was a criminal offence. See OKEKE v A. G. ANAMBRA STATE (1997) 9 NWLR (519) 123; AGBACHOM v THE STATE (1970) 1 ALL NLR 69 at 76; EZEJI v IKE (1997) 2 NWLR (486) 206.

Another settled position of the law is that every court of record has the inherent power and authority to punish for the contempt of its proceeding derived from the Constitution to preserve its dignity and is completely independent of the jurisdiction of a court to hear the substantive case in which it arose. ERHODAGHE v. OKOYE (2004) 18 NWLR (905) 472, (2004) 11-12 SC, 24; ADO v. AMAKRI (2006) ALL FWLR (303) 392.
Usually, every contempt of court is tried by the court in accordance with its rules of procedure and practice specifically provided to regulate proceedings therein. The Appellants’ motion for committal of the Respondents for the alleged contempt of the High Court was filed under the provisions of Order 42 Rules 1 (1) and (2) and 2(1) and (2) of the Cross River State High Court Rules, 1987 which are as follows:
1(1) The power of the court to punish for contempt of court 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) criminal proceedings;
iii) proceedings in an inferior court;
b) is committed in the face of the court, or consists of disobedience to an order of the court, or a breach of an understanding to the court; or
c) is committed otherwise than in connection with any proceedings.
2. (1) An application for an order of committal shall be made to the court by motion on notice supported by an affidavit, and shall state the grounds of the application.
(2) The notice of motion, affidavit, and grounds shall be served personally on the person sought to be committed; Provided that the Court may dispense with personal service where the justice of the case so demands;
It is clear from these provisions that the High Court was granted the discretionary power to punish for its contempt by an order of committal which may be made when the contempt is committed in connection with any proceedings, for our purposes here, before it, in the face of the court or if it consists of disobedience to its order or a breach of an understanding to the court, etc.
The provisions of Rule 2 (1) & (2) only provide for the form and contents of an application for an order of committal and that is should personally be served on the person/s sought to be committed.
From the submissions by the learned counsel for the Appellant, the pith of his application for committal of the Respondents was breach of the purported undertaking by the learned counsel for the Respondents at the proceedings of the 8/3/06. The application was therefore predicated entirely on the provisions of Order 42 Rule 1(2) (b) above which deals with the breach of an understanding to the court. As can easily be noted, the provisions deal with an “understanding to the court” and not undertaking to the court.
Be that as it may, even though the motion was filed under the 1987 of the Rules of the High Court, it was eventually heard and determined under the 2008 Rules of that court which replaced the earlier Rules and which do not contain provisions in respect of a breach of an undertaking or understanding to the court. Order 41, Rules 9 – 12 of the 2008 Rules dealing with committal for contempt do not make provisions for a committal order in respect of a breach of an understanding or undertaking to the court. An application for a committal order for contempt in respect of an alleged breach of an understanding or undertaking to the court, is therefore not, maintainable and sustainable under the 2008 Rules of the High Court.
It may be recalled that the essence of the concept of contempt of a court revolves around disobedience of an order of court in given proceedings or doing acts or conducts which are intended manifestly to undermine the authority and dignity of the court and showing disrespect to the court. What amounts to disrespect or interference or conducts or acts which undermine the authority of a court is a matter of fact but a charge of contempt is a serious one which has to be proved beyond reasonable doubt to the satisfaction of court before a committal order can properly be made. The courts are enjoined to use or invoke the power to punish for contempt sparingly and only in clear cases of willful act or conduct which tend to or indeed showed disrespect to the authority and dignity of the court. The Supreme Court in the case AGBACHOM v. THE STATE (supra) had stated the position thus:
“Whether the contempt is in the face of the court or not in the face of the court, it is important that it should borne in mind by judges that the court should use its summary powers to punish for contempt sparingly. It is important to emphasis the fact that judges should not display undue degree of sensitiveness about the matter of contempt and they must act with restraint of these occasions. We recall the observation of Lord Russell of Kilowen in R. v. Gray (1900) 205 36 at 41 that “jurisdiction to deal with contempt summarily should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt.”
I have earlier set out what the learned counsel for the Appellant had insisted was an undertaking by the learned counsel for the Respondent to the High Court and which was allegedly breached. The High Court had in its ruling stated that the statement by the learned counsel for the Respondent before it that he was to ensure that the Respondents remained law abiding did not in any manner whatsoever affected or influenced its decision or opinion to hear the substantive matter than waste precious time and resource in taking the Appellants motion for injunction. The statement therefore did not go to any action or inaction directed by that court in the conduct of the proceedings of the case, but particularly of the date it was made since it was not the basis or even a factor which informed the prudent option adopted by High Court to expedite the resolution of the dispute between the parties. In fact as borne out of the records of the appeal, the High Court had announced its position on the motion that was listed for hearing on the 8/3/06 when the learned counsel for the Respondents by way of support, made his statement. The learned counsel for the Appellant has not disputed the above position and so in the circumstances, the High Court was right when it held that even if the statement was an undertaking, it was not such that its breach can appropriately be said to amount to a civil contempt of the court. The High court did not use the facts or issues in the case of Abbas v Solomon (supra) cited by the learned counsel for the Appellant before it, but cited the principle of law stated in the case on when a breach of an undertaking even when made to the court expressly, would amount to and be treated as a civil contempt of that court’s proceedings. The statement made by Iguh, JSC in the case clearly supports the finding by the High Court that its decision to hear the substantive case, instead of the Appellant’s motion for injunction was not in any way howsoever, made as a result of or in consideration of the undertaking by the Respondent’s counsel that his clients would be law abiding. That decision by the High Court not to take the Appellants’ motion for injunction but “prefer to hear the matter at once….” did entail or even envisage an order to do or refrain from the doing of any act on the part of any of the parties, but in particular, the Respondents… In the absence of a direct or reasonably presumed indirect order by the High Court in its preference not to hear the motion for injunction on the 8/3/06 but the substantive matter at once, there cannot be a breach that would be called a civil contempt of the proceedings of that day.
But all the above apart, the power to punish for any fact or conduct carried out outside the court or excuriae facie, as provided for in both the 1987 and 2008 Rules of the High Court, is purely discretionary. In such a situation, it is the High Court that ‘would look at the entire facts and circumstances of a case in their peculiarities and then determine whether or not its authority and dignity was indeed threatened or impugned or undermined by the acts or omission alleged to be in contempt of the proceedings before it. Although it is the law that all judicial discretions must be exercised both judicially and judiciously by a court of law, the law is also common knowledge that an appellate would not ordinarily and routinely interfere with the exercise of a judicial discretion by a lower court, except in recognized circumstances. A judgment or order of a court based on the exercise of a judicial discretion can only be interfered with by an appellate court on the grounds that-
1) the discretion was not exercised in accordance with law
2) the lower court acted under a misapprehension of the law
3) the lower court acted under misapprehension of the facts placed before it
4) the. lower court omitted to take into account matters which are relevant or considered irrelevant matters in its decision
5) the lower court considered inadequate materials
6) the lower court’s decision was perverse and therefore in the interest of justice to interfere to prevent miscarriage of justice-
See UNILAG v. LANIYAN (1985) 1 NWLR (1) 156; NGWU v. ONUGBO (1999) 13 NWLR (636) 572; UNILAG v. AIGORO (1985) 1 NWLR 143; BIOCON AGRO CHEMICALS v. KUDU HOLDING (2000) 13 SC (1) 139.
Looking calmly at the affidavit evidence presented before the High Court by the parties in the motion for committal, I do not hesitate to say that the Appellant has not effectively and cogently demonstrated in this appeal that any of the aforementioned situations exists or applies to the exercise of the discretion and coming to the conclusion that a case of contempt or its proceeding was not made out beyond reasonable to warrant an order for committal of the Respondents based on the breach of an undertaking made by their counsel to the court. For that reason, the High Court did not fail, but on the contrary, dutifully and ably, discharged its judicial duty in the determination of the Appellants’ motion for committal of the Respondents for contempt. The fact that the decision of that court did not please the Appellant has not changed that position or made it any less.
In the result, I find no merit in this appeal and grounds upon which it is premised. Before ending this short judgment, drawing from the record of the appeal, it would appear that about five (5) years have now been spent chasing shadows of a case that was instituted more than six (6) years ago before the High Court. Many more years and resources may still be spent for the case and the motion for injunction which would not sincerely be in the interest of the parties nor advance the administration of justice generally.
In the final result, for lacking in merit, this appeal is dismissed with no order on costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, J.C.A. I agree with his reasons and conclusions. I abide by all the orders contained in the lead judgment.

JOSEPH TINE TUR, J.C.A.: I read a draft copy of the judgment delivered by my Lord, Mohammed Lawal Garba, JCA and I concur that upon the facts before the lower Court, this appeal should be dismissed.
I perused the record of appeal transmitted by the Registry of the Court below to this Court on 9th July, 2009 but could not see the writ of summons and the pleadings filed by the plaintiff and the defendant on behalf of their respective families. However, paragraph 3 of the affidavit of Uyi Bassey, Litigation secretary in the Law Firm of Attah Ochinke & Co. in support of the committal proceedings by the plaintiff (now appellant) against the defendant (now Respondent) on 14th January, 2008 shows that the suit was instituted on 10th February, 2006 by the plaintiff and the reliefs were, “…a declaration that the customary right of occupancy over the portion of land claimed by the 1st defendant/Respondent situate in Akpama, Ukpah – Bekwara Local Government Area bounded on the East by Omang Ade family compound; to the North by Odama Olofo family compound; to the West by Akwaji Mgbe family compound and to the South by the plaintiff/applicant’s family compound, rest on the plaintiff/applicant and his relation.” In paragraph 3 of the affidavit it is deposed that the plaintiff/appellant filed an application on the same day praying for an order of interlocutory injunction “To restrain the 1st & 2nd Defendants/Respondents by themselves, their agents, privies and any other personal acting through them from further acts of trespass and destruction of the plaintiff/Applicant’s food and other crops and doing anything whatsoever, inconsistent with the rights of the plaintiff/Applicant pending the determination of the substantive suit. The said motion is attached and marked Exhibit “A”.”
In paragraph 7 of the affidavit it was deposed that the parties had filed and exchanged their respective pleadings since 16th January, 2006 and the suit adjourned to 19th February, 2007 for definite hearing. But this was not possible because of strike action embarked upon by Staff of the Judiciary hence the Court did not sit on that date.
When the suit came up for hearing on 8th March, 2006 J. O. Idiege, Esq. of counsel to the plaintiffs intimated the Court he had filed an application for interlocutory injunction to restrain the defendants/respondents from further acts of trespass on the disputed land. The entries on the record of 8th March, 2006 are as follows:
“Court: I prefer the matter being heard at once instead of the interlocutory injunction
Obi: I will ensure that my clients would be law abiding to allay the fears of the plaintiff.
Idiege: If there is such an undertaking then the matter could go on for hearing.
Court: By consent of both counsel matter adjourned to the 27th April, 2006 for hearing.
My Order
signed: M. Edem – Judge.
8th March, 2006.”
See page 13 of the printed record’

To me the only enforceable order made by the learned trial Judge on 8th March, 2006 was to direct that the matter be adjourned to the 27th April, 2006 for hearing of the parties did not appear on that day the learned trial Judge reserved the legal right to strike out, dismiss or further adjourn the suit to another date.
But learned counsel to the judgment creditors/applicants has held the view that the assurance of Obi, Esq. in open Court on 8th March, 2000 constituted an undertaking, a breach or violation of which could be enforced by committal proceedings.
On 14th January, 2008 the plaintiff/Applicant brought an application on notice supported by affidavit praying for “An order of committal for contempt of court by the Defendants/Respondents for the breach of the undertaking by their Counsel on their behalf in respect of the proceedings in suit No.HJ/5/2006 pending before this Honourable Court” and “For such further order(s) as this Honourable court may deem fit to make in the circumstance of this suit. The application was predicated on the following facts deposed in paragraphs 10-14 of the affidavit of Uyi Bassey:
“10. That on 27th November 2007, a day after the defendants/respondents’ application of 26-11-2007 for adjournment for report of settlement, the Defendants/Respondents instigated and led their relations and personally took part in the clearing of a portion of the land in dispute made mounds therein, planted cassava sticks and are waiting to plant yams in the mounds. Hitherto, the Defendants/Respondents have had nothing to do on the cultivated portion of land.
11. That on 17-12-2007 J. O. Idiege, Esq. of counsel for the plaintiff/Applicant wrote to the Defendants/Respondents requesting them to restore the cultivated portion of land to its state before the disturbance. A copy of the letter is attached and marked Exhibit “D”. The Defendants/Respondents have failed and/or neglected to restore the cultivated portion of land to its state before the disturbance.
12. That J. O. Idiege, Esq. of Counsel has informed the plaintiff/Applicant who verily believe that the action of the Defendants/Respondents stated in paragraph 11 & 12 above is contemptuous and abuse of court process.
13. That it is in the interest of justice and equity that the defendants/respondents be committed for practicing deceit on the court and for contempt.
14. That I depose to this affidavit in good faith, believing the contents to be true and correct and in accordance with the oaths Act, 2004.
The above depositions were denied in paragraphs 5-10 of the Counter affidavit deposed to by Anthony Morphy, clerk in the Law Firm of Brown Obi, Esq. as follows:
“5. That paragraphs 5 and 6 of the affidavit are only true that on the 8/3/2006 Brown Obi, Esq. and Julius Idiege, Esq. Plaintiff’s Counsel undertook before the Ogoja High Court to restrain their respective clients from causing a breach of the peace over the land now in dispute and to allow the matter to be heard on the merits which promise the defendants have faithfully kept until date.
6. That paragraphs 7, 8 and 9 are partly true but untrue as to dates therein and denied as such.
7. That paragraph 10 of applicant’s affidavit is vehemently denied. Defendants have never cleared and made mounds on any portion of the land now in dispute but did so only on their own personal land as the plaintiffs did throughout 2006 and 2007 and have just harvested their yams therefrom.
8. That paragraphs 11 is true but there shall be no disturbance in the community except the plaintiff and his family want to cause it.
9. That paragraphs 12, 13 and 14 of the affidavit are denied for being untrue. Defendants have not and shall never deceive or contempt this Honourable Court and should not be committed.
10. That plaintiff/applicant and his family are natives of Aragba Mbube and trouble makers who do not want this suit to be heard on the merits. They brought this motion in bad faith.
11. That defendants shall be prejudiced if this application is granted.
12. That I am advised by our lead Solicitor Brown Obi Esq. and I verily believe him that this application is incompetent.
13. That I swear to this affidavit believing its contents to be true and in accordance with the provisions of the Oaths Act, 2004.”
There was no further affidavit from the appellants/judgment creditors/applicants refuting paragraph 7 of the Counter affidavit, namely, that where the contemnors/defendants/Respondents entered and made mounds was not on their portion of land but within that in dispute. Neither was it their personal land which they had cultivated in the year 2006 and 2007. See Ajomale vs. Yaduat (1991) 5 SCNJ (No.2) 178 at 184 or (1991) 5 NWLR (Pt.191) 266 at 282-283 para. “H”-“A”. On the failure to file a further affidavit alone the learned trial Judge should have dismissed the committal application.
To “undertake” is “1. To take on an obligation or task… 2. To give a format promise; guarantee… 3. To act as surety for (another); to make oneself responsible for a person, fact, or the like).” An “undertaking” by simple definition is “1. A promise, pledge, or engagement.” See Blacks Law Dictionary, 8th edition p.1562.
From the facts deposed to by Uyi Bassey in paragraphs 10-14 of the affidavit in support of the committal proceedings it will be seen they are materially irreconcilable with facts set out on Oath in paragraphs 5-13 of the counter affidavit of Anthony Morphy. In such a situation oral hearing by the learned trial judge could have resolved the issue whether the defendants/Respondents had breached their counsel’s so-called undertaking of 8th March, 2006 which simply put was that his clients would be “law abiding to allay the fears of the plaintiff.-See page 13 lines 17-18 of the printed record; Eboh vs. Oki (1974) 1 SC 179 at 189-191; Falobi vs. Falobi (1976) 1 NMLR 169 and Government of Ashanti vs. Korkor 4 WACA 83- But rather than embarking on hearing the substantive suit the plaintiff/applicant have been chasing shadows, delaying the time the dispute could have been resolved by the Court thereby escalating the cost of litigation.
Furthermore did what Obi Esq. say on 8th March, 2006 in the Court below, namely, “I will ensure that my clients would be law abiding to allay the fears of the plaintiff” constitute an ‘undertaking,” a breach of which will render the contemnors/defendants liable to committal for contempt of Court? I do not think so.
When Idiege, Esq. of Counsel gave the alleged “undertaking” the learned trial Judge did not even make any comment or order but simply adjourned the proceedings for hearing to 27th April, 2006. Besides, the so-called “undertaking” was to ensure that the defendants were law abiding” whatever that may mean. The meaning is not only vague but ambiguous. Even if this can be considered an undertaking, like injunction, it is very wide in terms and cannot be enforced. See Meriogun Dadson Ogbe vs. Sam Warri Esi & Anor (1945) 1 WACA 76 at 77. In Karama vs. Aselemi (1938) 4 WACA 150 the trial Judge found that certain pieces of the land in dispute belonged to the plaintiff but there was no plan nor description of the boundaries to which a declaration of title to these lands could be attached. The learned trial Judge refused to grant declaration of title but granted injunction in the terms of the writ. In setting aside the injunction granted in such circumstances the West African court of Appeal held at page 151 that:
“In Kerr on injunction, 6th edition, p.647, it is stated:
“The terms of the order granting an injunction should be such that it is quite plain what it permits and what it prohibits. An order which merely prohibits a man from doing what he has no authority to do, without showing him what are the limits of his authority, and leaves him to find out what is forbidden and what is allowed, is irregular.’
In Cother v. Midland Railway Co., 41 English Reports Ch. p.1025, Lord Chancellor Cottenham, in the course of his judgment dissolving an injunction granted by the Vice-Chancellor said “I think the right should be declared, and the injunction founded upon such declaration that the order may inform the defendant what the opinion of the Court is as to the limits of his rights, and not expose him, in the exercise of such right, to the consequences of violating so vague an injunction.”
There is nothing on record to indicate the opinion of his Lordship when obi, Esq. promised to ensure that his clients were “law abiding.”
In Re National Federated Electrical Association’s Agreement (1961) L.R. 2 R.P. 447 Diplock J., (as he then was) held at page 452 that:
“…It is desirable to say that the effect of a breach of an undertaking is as serious as a breach of an injunction…”
An undertaking should be such as is clear but not vague showing what is prohibited and what is permissible. The undertaking should inform the Court what the undertaker will do or refrain from doing and the Court should make it an order so that the party giving the undertaking will know in advance the consequences of breaching or violating such an undertaking. In this appeal, the so-called undertaking does not show the limits of the undertaking, what is forbidden or permissible and the consequences of its violation or breach. Being too vague and ambiguous, I hold that it is unenforceable by way of committal proceedings. At best the so-called “undertaking” constitutes mutual obligations, not binding in law, but moral obligations binding in honour, as well as according with the individual interest of each party in the litigation before the learned trial Judge. see Re Agreement of the Mileage conference Group of the Tyre Manufacturers conference, Ltd. (1966) 2 All E.R. 849 at, 860 paragraphs “A-B’ per Megaw, P., sitting in the Restrictive Practices Court in England. That is not to conclude that an undertaking that is given or made by a legal practitioner in the course of proceedings upon which the other party has altered his position is not enforceable by committal proceedings if there is a breach or violation. For in Re A Solicitor, Exparte Hales (1904-7) All E.R. Rep. 1050 it was laid down by the kings Bench Division (Darling and A. T. Lawrence J.J.) in the head note that:
“Where, in the course of proceedings, a Solicitor undertakes to pay money to a person not a client out of sums received by him for that purpose from his client, and on the faith of that statement the person to whom it was made alters his position, the Court will enforce the fulfillment of the undertaking by the exercise of its disciplinary jurisdiction over Solicitors as officers of the Court.”
On the facts presented in this appeal, I am of the candid view that the learned trial Judge rightly declined jurisdiction to enforce this so-called undertaking by holding that:
“Be that as it may, it is my view therefore that the undertaking by Counsel for the defendants in Court albeit an undertaking, is not such that a breach of same can he treated as civil contempt, as it was not the basis for which the Court sanctioned any particular course of action or inaction. Having answered the main issue 1 raised in the negative, I consider it unnecessary to go into the issue of whether or not there was a breach of the undertaking and other related issues.
In the circumstances, I will and hereby dismiss the motion on notice praying for an order of committal by the defendants/respondents for contempt of Court for breach of an alleged undertaking by Counsel on their behalf in Court dated and filed on filed on the 14th of January 2006.”
See page 67 lines 30-33 and page 68 lines 1-7 of the printed record.
For these and the fuller reasons given by my Lord in the lead judgment, I also dismiss this appeal as lacking in merit and affirm the judgment of the lower Court. I abide by any other order made by my Lord.