J. O. Anakwenze V. Louis Aneke & Ors.(1985)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C.

This is an appeal from the ruling and order given by the Court of Appeal at Enugu on 20th September, 1982 by which the appellant – a legal practitioner – was sentenced to 6 months imprisonment for being found guilty of committing contempt of Court.

The facts which led to the contempt are as follows: By a public notice published on 25th January 1973, in East Central State Gazette No.4 Volume 4, the former East Central State of Nigeria acquired, for public use, a parcel of land at Emene.

Sometime later the sum of N658,000.00 as compensation payable to the owners of the land acquired was paid into the High Court at Enugu by the Government of Anambra State. On 7th June, 1978 the appellant took out a summons under the Public Lands Acquisition Law, Cap. 105 laws of Eastern Nigeria, 1963 on behalf of his clients, namely (1) Joseph Ede (2) Bernard Mba, (3) Vincent Aluma and (4) Geoffrey Nnaji who were suing as plaintiffs on behalf of the people of Amaechi Village of Emene Nike.

The summons sought for the payment of the compensation paid into the High Court to the appellant’s clients. Meanwhile, pending the determination of the issues raised by the summons, the plaintiffs applied to the High Court (Araka, C.J.) for the release of half of the compensation paid into Court in order, it was said, to alleviate their sufferings as a result of the acquisition. In granting the application in part, the learned Chief Judge made the following ruling:

“I will make an order for one third of the amount paid into court to be paid out to the applicants. But the applicants are to file an affidavit in support of the application before the amount is paid out to them. Further consideration of the issues involved in this application will be adjourned to 24/7/78. By this time the survey should have been completed and the actual amount of compensation to be paid for the area acquired less the area edged yellow shall have been worked out and the parties interested in the remaining area acquired shall have been known too.”

After one-third of the compensation was paid to the appellant personally, who was acting on behalf of the plaintiffs, two other communities namely of Emene and Umuchigbo Iji-Nike applied to the High Court to be joined in the action as interested parties and also asked for the discharge of the order of payment of one-third of the compensation to the plaintiffs. The latter part of the application was based on the ground that the land acquired by the Government belonged, in common, to all the three communities of Amaechi, Emene and Umuchigbo Iji-Nike, and that by virtue of the provisions of sections 15 and 18 of the Public Lands Acquisition (Miscellaneous Provisions) Act, 1976 (1976 No. 33) it was the Land Tribunal established under the Act that had jurisdiction in the matter. The original jurisdiction of the High Court having been ousted by section 18 of the Act.

The learned Chief judge upheld the submission that he had no jurisdiction in the matter and struck out the suit; but refused to discharge the order of payment of one-third of the compensation to the plaintiffs for the following reasons –

“A different consideration could have arisen if the contention of Umuchigbo Iji-Nike and Emene people was that Amaechi people are complete strangers on the land. In that case, the Court could have had no hesitation in ordering the Amaechi people to pay back to the Sub-Treasury the amount wrongly paid out to them.

But when the issue is as to the exact amount to be paid to the parties I do not see the necessity of canceling the order for interim award to the Amaechi people. If on the ultimate conclusion of the hearing it is found that the people of Amaechi had been over-paid then they could be called upon to refund the excess payment. If they were under-paid they should be paid the difference.

The order for the interim payment was made so as to alleviate the sufferings of Amaechi people (as stated by their counsel) who were made to vacate their houses because of the Acquisition Notice. The suffering of the people, no doubt, would be worsened if another order is now made canceling the order for interim payment.”

Aggrieved by the ruling, both the people of Amaechi and the community of Emene separately appealed to the Federal Court of Appeal (now simply Court of Appeal). The Court determined both appeals as follows:

“In the final analysis the appeal by the Amaechi Village fails and it is dismissed.

The appeal by the Emene Community succeeds and the following orders are made:

1. That the Order of the learned Chief Judge striking out suit No.13/159/78stands.
2. That the amount of compensation wrongly paid out by the order of Court dated 12th June, 1978 to the Amaechi Village represented by Joseph Ede, Bernard Mba, Vincent Akuma and Geoffrey Nnaji being one-third of the compensation of N658,000 paid into the High Court Enugu be recovered from the persons aforesaid by the Registrar High Court Enugu and that the amount so refunded be paid into the Government Treasury Enugu within 30 days to abide the decision of the Land Tribunal.”

Now these orders were made on the 29th day of May, 1980. The appellant acting on behalf of his clients filed an application in the Court of Appeal on 27th June, 1980 to stay execution of the order to refund part of the compensation paid out to him for his clients on the false information that there was a pending application for leave to appeal to this Court. On investigation it was in fact found that no such application had been made. Consequently, the application for stay of execution was withdrawn by the appellant on 23rd September, 1980.

By the 2nd April, 1981 the money had not been refunded as ordered by the Court of Appeal. The Registrar of High Court, Enugu wrote a reminder to the appellant, whose reply was that it was not his responsibility to recover the money paid out to his clients. Up to 30th November, 1981 no steps had been taken by the people of Amaechi village to comply with the order. Emene Community therefore applied on that day to the Court of Appeal to commit to prison the four representatives of Amaechi village including their counsel – the appellant. The appellant swore and filed a counter-affidavit and a further counter-affidavit to the one in support of the application. Bernard Mba also filed a counter-affidavit in which he deposed that he had the permission of Joseph Ede, Vincent Aluma and Geoffrey Nneji to swear to the counter-affidavit. In addition to the counter-affidavit the Court of Appeal took the oral evidence of Bernard Mba, Geoffrey Nneji and Pius Okun, who was the Manager of the Cooperative and Commerce Bank Nigeria, Limited, Ogui Branch, Enugu. The testimony of Pius Okun became necessary, according to the Court of Appeal, because of the further counter-affidavit filed by the appellant.

The ease of the appellant before the Court of Appeal was considered as follows (per Aseme, J.C.A. with Phil-Ebosie and Olatawura, JJ.C.A. concurring):

“The main grounds for defence of 1st respondent (that is the appellant) as shown in his affidavit and submission of (his) counsel may be summarised as follows:

1. That he acted as a solicitor and as he was not a party to the proceedings he cannot be committed (to prison).
2. That the proceedings are irregular and that a copy of (the) application, served on him did not bear the signature of the Judge.

…… the court’s file copy bears the signature of the Judge. With respect to the contention that 1st respondent was not a party to the proceedings it is settled law that the person aiding and abetting a party to flout an order or injunction of the Court may be guilty of contempt in like manner as the principal party who has aided to disobey the order of the Court. See Seaward v Paterson, (1897) 1 Ch. 545. There is satisfactory-evidence before this Court to prove:

1. That 1st respondent knew of the mandatory order of the Court, and was duly served with necessary due process.
2. That in order to defeat the order or to render the same ineffectual he pretended in his letter to the Registrar High Court. Enugu dated 13th April, 1981 that there was pending in Supreme Court an application for leave to appeal, There is no evidence of such application’.
3. That 1st Respondent has still with him substantial part of the total amount to be refunded; so that even if the 2nd – 5th respondents refund the total sum of N48,000 paid to them by the 1st respondent, compliance with the order of the Court will, till remain a force without the balance of the amount still in the hands of 1st respondents.

….From the totality of the affidavit and oral evidence which show acts of participation by 1st respondent I have not the slightest doubt that his conduct amount to wilful refusal or neglect to comply with the order of this Court.

I find the respondents guilty of contempt. Each of the five respondents is to go to prison for six months.”

In this Court four grounds of appeal were filed, but three of these were struck-out having been found to be incompetent, since they raised either questions of fact or questions of mixed law and fact, and no leave was obtained in accordance with the provisions of section 213 subsection (3) of the 1979 Constitution before they were filed. Consequently, only the remaining ground was argued and it states:

“4. ERROR IN LAW

That the learned Justices of the Federal Court of Appeal erred in law in taking jurisdiction to enforce its own orders and the whole process of calling and taking evidence is a nullity.

PARTICULARS OF ERROR

(1) Section 251 of the Constitution of Federal Republic of Nigeria, 1979 enjoins enforcement of the Federal Court of Appeal Orders such as Exhibit F by a Court of subordinate jurisdiction.

(ii) Taking of oral or documentary evidence in process of enforcing order of the Federal Court of Appeal is that of a subordinate Court Any rule of the Federal Court of Appeal notwithstanding as the latter rule is subordinate to the Constitution.

(iii) Taking/receiving oral evidence in Federal Court of Appeal is restricted to appeals before the said Court.”

The argument advanced by Mr. Lardner, learned counsel for the appellant in the appellant’s brief and before us is that by virtue of the provisions of section 251 subsection (2) of the 1979 Constitution the decision of the Court of Appeal are only enforceable by “all authorities and persons and by Courts with subordinate jurisdiction,” As the Court of Appeal was neither of these, it had no jurisdiction to enforce its order for the refund of the amount paid out by the High Court by committing the appellant to prison for contempt. It was further contended that the error of the Court of Appeal in dealing with the application for committal was compounded since the Court had already made the order and issued a certificate that the Registrar of the High Court should recover the amount and have it paid into the government Treasury. Hence learned counsel submitted that it was the High Court and not the Court of Appeal that ought to enforce the order in the light of the provisions of Order 5 rules 4 and 5 of the Federal Court of Appeal Rules, 1981.

Now section 251 subsection (2) of the Constitution provides-

“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.”

And Order 5 rules 4 and 5 of the Federal Court of Appeal Rules, 1981 which deals with enforcement and execution of the judgment of the Court of Appeal states:

“4. Any judgment given by the Court may be enforced by the Court or by the court below or by any other Court which has been seized of the matter, as the Court may direct.

5. when the Court directs any judgment to be enforced by another court, a certificate under the seal of the Court and the hand of the presiding Justice setting forth the judgment shall be transmitted by the Registrar to such other court, and the latter shall enforce such judgment in terms of the certificate,”

It is true that section 251 subsection (2) of the Constitution is silent with regard to the power of the Court of Appeal to enforce its decision. However, by section 6 subsection (3) of the Constitution the Court of Appeal is not only a superior court of record but it possesses also all the powers of such a court. In addition, section 6 subsection (6)(a) of the Constitution has vested the Court with all the inherent powers and sanctions of a court of law. These subsections read as follows:

“6. (3) The courts to which this section relates established by this Constitution for the Federation and for States specified in subsection (5) (a) to (f) of this section shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or the House of Assembly of State, each court shall have all the powers of a superior court of record.

(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;”

It follow therefore that the powers of the court of Appeal are extensive.

Now at common law no cause of matter is prima facie deemed to be beyond the jurisdiction of a superior court unless it is specially or expressly shown to be so. The principle is tersely stated in The Major etc of London v Cox. (1867) 2 L.R.H.L. 239at p. 259 following the decision in Peacock v Bell and Kendal (1667) 1 Wms. Saund 101, to be as follows:

“the rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and, all the contrary nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged.”

Learned counsel for the appellant has not referred us to any law or authority which expressly provides that the Court of Appeal cannot enforce its order once it directs that such order is to be enforced by a subordinate court. Instead he quoted the provisions of Order 5 rules 4 and 5 of the Federal Court of Appeal Rules, 1981 and argued that by reason of the order being referred to the High Court for execution the Court of Appeal was precluded from enforcing the order by itself. This argument appears to contradict the provisions of rule 4 of the Order which expressly gives the Court the power to enforce its judgment. It is also contrary to the general rule that an authority which delegates its power does not divest itself of the power. In Huth v Clarke (1890) 25 Q.B.D. 391 the following observation which appears to be apposite, was made by Lord Coleridge C.J. at p. 394:-

“But delegation does not imply a denudation of power and authority The word “delegation” implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating, and many examples of this might be given. Unless, therefore, it is controlled by statute, the delegating power can at any time resume its authority.”

In my opinion, therefore, it is not right to argue that the Court of Appeal, which in effect delegated its power to the High Court, lacks the jurisdiction to enforce the order by itself. I therefore see no merit in the appeal.

Accordingly, the appeal is hereby dismissed with no order as to costs since it has not been contested by the respondents.

M. BELLO, J.S.C. (Presided): I have had the advantage of reading the judgment just delivered by my learned brother, Uwais, J.S.C. I adopt it.

The appeal is dismissed and the decision of the Court of Appeal is affirmed. No order as to costs.

A. O. OBASEKI, J.S.C.: The only issue for determination raised in this appeal is as to the competence of the Court of Appeal to execute its own judgment and orders. This is apparent from the only ground of appeal argued before this Court by learned counsel for the appellant, Mr. H. A. Lardner, SAN. which reads:

“Error in Law:

That the learned Justices of the Federal Court of Appeal erred in law in taking jurisdiction to enforce its own orders and the whole process of calling and taking evidence is a nullity.

Particulars of Error

(i) Section 251 of the Constitution of the Federal Republic of Nigeria 1979 enjoins enforcement of the Federal Court of Appeal orders such as Exhibit F by a court of subordinate jurisdiction;

(ii) Taking of oral or documentary evidence in process of enforcement order of the Federal Court of Appeal is that of a subordinate court. Any rule of the Federal Court of Appeal notwithstanding as the letter rule is subordinate to the Constitution;

(iii) Taking/receiving oral evidence in Federal Court of Appeal is restricted (appeals before the said Court”

This ground of appeal is, in my view, based on the interpretation of section 251 (2) of the Constitution of the Federal Republic of Nigeria 1979. The question that immediately arises is as to the proper and correct interpretation to be put on the section.

My learned brother, Uwais, JSC. has dealt admirably with this question in his judgment just delivered the draft of which I had the privilege of reading in advance. I agree with him and I adopt his opinions as mine.

The question being of great moment though unexpected, my comments will add to the weight of reasons why the appeal should be dismissed. It is unthinkable that the Court of Appeal being one of the superior courts of record (see section 6(3) of the Constitution of the Federal Republic of Nigeria 1979 as amended) would have no power and be unable to enforce its judgment and orders.

One of the attributes of a Court of law is its competence to enforce its judgment. Other courts, authorities, or persons, unless empowered by statutes or Constitution creating the particular courts have no jurisdiction to enforce the judgment and orders of the court.

It should be remembered that the term “judicial powers of the Federation” include powers to enforce a decision or judgment or order given and when section 6(1) of the Constitution of the Federal Republic of Nigeria, 1979 vested the Judicial Powers of the Federation in the Court of Appeal being one of the courts established for the federation, it vested in it that inherent power to execute its my judgments and orders.

To clear all possible doubts as to the intention of the Constitution makers, section 6(6)(a) of the Constitution in clear and unambiguous terms provides that:

“The judicial powers vested in accordance with the foregoing provisions of this section

(a) shall extend, notwithstanding anything to the contrary, to all inherent powers and sanctions of a court of law.” The inherent power of a court to enforce its judgment does not eo ipso enable another court with subordinate jurisdiction to enforce the decision of the Court of Appeal. The need for effective enforcement of its decision throughout the Federal Republic of Nigeria gave birth to the provisions of section 251(2) of the Constitution of the Federal Republic of Nigeria as indeed the need for the enforcement of the decisions of the Supreme Court and the High Court gave birth to the provisions of sub-section (1) and (3) of section 251 of the said Constitution. Thus, the provisions of the three subsections read:

(1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and by courts with subordinate jurisdiction to that of the Supreme Court.

(2) The decision 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 Federal Court of Appeal.

(3) The decision of the High Court and all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons and by other courts of law with subordinate jurisdiction to that of the High Court and those other courts respectively.”

It is conceded by counsel that the high court has jurisdiction to enforce its judgment. By the same token, it cannot be argued that the Supreme Court and the Court of Appeal have no jurisdiction to enforce their decisions by reason of the above constitutional provisions. However, the various rules of court expressly provide for the enforcement of the decision of each of the courts by the court that delivered it. See Order 7 Rule 31 and Order 8 Rule 26 of the Supreme Court Rules, 1977. See also Order 8 Rule 17 and Order 9 Rule 15 of the Supreme Court Rules, 1985. See Order 5 Rules 4 and 5 of the Court of Appeal Rules, 1981.

The Court of Appeal is a superior court of record. It is so declared by the Constitution section 6(3). If it had not been so declared to be a court of record, to ascertain whether it qualifies to be one, one would have had to look at its jurisdiction to find out whether it has power to fine or imprison by statute or otherwise for contempt of itself or other substantive offences.

See Vol. 10 Halsbury Laws of England 4th Edition paragraph 709, page 319.

Surprisingly, what is being complained of in this appeal is the exercise of the power of the Court of Appeal to commit for contempt of itself. Unfortunately for the appellant, this power is one of the indispensable attributes of a superior court of record.

It should be noted that the High Court of Anambra State has unlimited original jurisdiction in both civil and criminal matters coming before it. Likewise the Court of Appeal with exclusive jurisdiction to hear appeals from its determination has the same unlimited jurisdiction over the matters in dispute on appeal. See section 16 Court of Appeal Act 1976. The expression of the meaning of “judicial powers” to include all the inherent powers and sanctions of a court of law puts the matter beyond doubt that it has power to deal with anyone who flouts its orders.

This is also clear from the judicial definitions or meaning of “judicial power.” The term has been defined by the Privy Council as the power that a sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects whether the right relates to life, liberty or property. The exercise does not begin until some tribunal which has power to give binding and authoritative decision (whether subject to appeal or not) is called upon to take action “[Shell Co. of Australia v. Federal Commissioners of Taxation (1931) AC 275 at 295-6]. [See also Huddart, Parker & Co. v. Moorehead 8 CLR 330. 357 per Griffith. C.J.].

Although the Court of Appeal exercises in the main appellate jurisdiction, the exercise of that jurisdiction on occasion involves the taking of oral or documentary evidence. The argument that this is restrited to the appeals before it is of no advantage to the appellant in the instant appeal. Learned counsel for the appellant may have overlooked the fact that the chain of actions set in motion was in a matter on appeal before the Court of Appeal. The enforcement proceedings is all directed towards the execution of order made by the Court of Appeal in the appeal proceedings.

In the Supreme Court, Order 7 Rule 31, Supreme Court Rules 1977 governed the enforcement of judgments till 31st March. 1985 when it was replaced by Order 8 Rule 17 of the Supreme Court Rules, 1985. Both rules are in pari materia and read:

“Any judgment given by the Court may be enforced by the Court or by the Court below or by any other court which has been seised of the matter as the court may direct.”

This is in respect of civil appeal. In respect of criminal appeals, Order 8 Rule 26 of the 1977 Rules and Order 9 Rule 15 of the 1985 Supreme Court Rules make similar provision for the enforcement of the Orders of the Supreme Court. The provisions are also in pari materia and read:

“Any order given or made by the court may be enforced by the court or by the court below as may be most expedient.”

In the Court of Appeal, the provision for enforcement is contained in Order 5 Rule 4 of the court of Appeal Rules, 1981 which reads: “Any judgment given by the court may be enforced by the court or by the court below or by any other court which has been seised of the matter as the court may direct.”

Looked at from any angle, the Court of Appeal is competent and has jurisdiction to enforce its judgment. As a court of record, it has power to fine and imprison anyone for contempt of itself.

Under the constitutional provisions, being invested with the judicial powers of the Federation and all the inherent powers and sanctions of a court of law, it has power to enforce its orders and judgments and punish for contempt of itself.

The process by which judgments and orders are enforced is normally initiated by a party to the proceedings by filing an application before the court thereby invoking the judicial powers vested in the court.

The exclusive jurisdiction conferred on it by section 219 of the Constitution to hear and determine appeals from the High Court of Anambra State include jurisdiction to entertain an application to enforce the Orders of the Court of Appeal involving the exercise of judicial powers.

The ground of appeal therefore fails. For the above reasons and the reasons so ably set out in the judgment of my learned brother, Uwais, JSC. I too would dismiss the appeal and I hereby dismiss it.

D. O. COKER, J.S.C.: I agree that this appeal has no substance and should be dismissed for the reasons given by my learned brother Uwais, J.S.C., in the leading judgment, a draft of which he has kindly shown to me.

I however wish to add the following for sake of emphasis. Section 7(2) of the Court of Appeal Act 1976, provides that any judgment of the Court “shall be enforceable by all courts and authorities in any part of the Federation as if it were a judgment of the High Court.” It does not exclude the judgment or order of that court. Besides, its previous order, made on the 29th May, 1980 was that the compensation of N658,000 paid into the High court Enugu ….. within 30 days …”

If the amount was not repaid as directed to the Registrar, the Registrar who has to recover it must of necessity require further order of the court as to the means of enforcing it. It is my view that the Court of Appeal which made the order was competent to further direct how its decision should be enforced.

Further, Section 16 provides that the Court of Appeal shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance. So if the High Court has the jurisdiction to make the order committing the Appellant to prison for contempt, the Court of Appeal was equally competent to make the order now on appeal. The Appellant was the person who actually collected the sum of N658,000.00 from the Registrar, High Court, Enugu albeit on behalf of the people of Amechi Village. It was he who disbursed it amongst the people he claimed to be his clients. Consequently, he knew who they were and therefore had the responsibility of recovering it from them when it subsequently turned out that the High Court had no jurisdiction to make the order which enabled him receive the money. The order of Court to pay the Amechi Village was on an application of the Appellant to a court which had no jurisdiction to entertain the proceedings. The Appellant himself received the money and personally undertook to disburse it. By obtaining an order which was a nullity and his unwarranted receipt and disbursement of the money he rendered himself liable together with his purported client; to account for the money he collected from the Court.

For the above reasons and those given by my learned brother, Uwais J.S.C., the appeal must be dismissed with costs of N300 to the Respondents.

S. KAWU, J.S.C.: I agree with my learned brother, Uwais, JSC. whose judgment in draft I had been opportuned to read, that there is no substance in this appeal. I too would dismiss the appeal with no order as to costs.

Appeal dismissed

Decision of the Court of Appeal affirmed

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SC.90/1984