Osayande Uhunmwagho Vs F I. Okojie (1988)

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NNAMANI, J.S.C. 

On 25th September, 1989, this appeal came before this Court. After hearing learned Counsel for both parties, and having read the record of proceedings, I was satisfied that the appeal had substantial merit and I allowed it. I indicated that I would give my reasons for that judgment today. I now give the reasons.

This matter was the aftermath of the judgment of this Court in Suit No. SC.43/81 delivered on 17th September, 1982. In the suit in the Bendel State High Court (Suit No. B/52/73) which led to the appeal in the Supreme Court, the appellant herein had sued the 1st respondent and 3 others for title to a piece of land in Benin City, damages for trespass and injunction. In its judgment of 17th September, 1982 which was in 1st respondent’s favour, the following relevant orders among others were made by the Supreme Court:-

“………2. That the plaintiff Osayande Uhunmwangho be hereby awarded a declaration of title under Bini Customary Law to the land situate, lying and being at Ward ‘A’ Aikhionbare Avenue, behind the Government Reservation Area, Benin City within The Benin Judicial Division, verged red on Survey Plan No. 4155 of 29th August, 1973…………

………… .4. That the defendants, their agents, servants or privies be hereby restrained from entering the land the subject matter of the suit.”

It must be pointed out that the 2nd respondent was not a party to Suit No.B/52/73. However, after the 1st respondent lost in Suit S043/81 as stated above, he claimed that he recovered the purchase price of the land in issue from the 2nd respondent and that he had handed back to him (i.e. 2nd respondent) the land the subject matter of the judgment of this court referred to above.

These averments were contained in paragraphs 5, 6, 15 and 16 of a counter-affidavit sworn to by the 1st respondent on 15th December, 1982 and in paragraph 11 of an affidavit sworn to by the 2nd respondent in Suit No. B/298/82. These counter-affidavit and affidavit were in answer to an application made by the appellant herein to the High Court of Justice Benin City.

The application dated 15th November, 1982 was made by the appellant’s then Solicitors praying the Principal Registrar of the High Court of Justice Benin City to issue and serve FORM 49 – “Notice to show cause why order of Attachment should not be made” – on the 1st defendant/Judgment Debtor/Respondent in this Suit, Mr. F. I. Okojie in accordance with the provisions of Order 9 rule 13(2) of the Judgment (Enforcement) Rule 1976, made under the Sheriffs and Civil Process Law, 1976.”

To this application was attached a 30 paragraph affidavit sworn to by appellant as well as Exhibits A – L including the order of the Supreme Court to which reference was made above. The application became necessary as appellant was of the view that the respondents were defying the order of injunction made by the Supreme Court in Suit SC/43/81.

This indeed was the beginning of the proceedings leading to the present appeal. Following this application the respondents filed several applications but the relevant one for our purpose here is that of 20th February, 1985. In that application, the respondents herein applied for “striking out/dismissing the application of plaintiff/respondent herein to commit the applicants by way of processes purportedly filed in this Honourable Court viz Form 48, Form 49, Application by way of affidavit filed on 6th April, 1983”.

6 grounds were given in support of the application. On 16th May, 1985, Gbemudu, J., after hearing the parties dismissed the application holding that it lacked merit. The respondents then appealed to the Court of Appeal. The Court, (Coram Omo Eboh, Ikwechegh and Ajose-Adeogun, (JJ.C.A.) allowed the appeal holding that the procedure adopted in the application against the respondents herein was wrong. The appellant then appealed to this Court. Three grounds of appeal were filed but I do not propose to set them down as the issues for determination, which I shall set down, clearly show the issues arising in the appeal. The issues for determination in appellant’s view were as follows:-

“1. Were the Justices of the Court of Appeal right to say that an order of the Supreme Court to wit:-

That the defendants, their agents, servants or privies be hereby restrained from entering the land the subject matter of this suit.”

is not one enforceable under Section 63 of the Sheriff and Civil Process Law Cap. 151 Laws of Bendel State by the procedure provided under Order 9, Rule 13 of the Judgment Enforcement Rules.