Louis B. Ezekiel Hart V. Chief George I. Ezekiel Hart (1990)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C.

The present respondent Chief G. I. Ezekiel Hart who was the plaintiff in the trial court sued James E. P. Hart in the High Court of Rivers State of Nigeria in the Portharcourt Judicial Division claiming as follows-

“PARTICULARS OF CLAIM”

1. A declaration that he is entitled to the possession or custody and control of all property real and personal of the said Chief Ezekiel Hart (deceased).
2. Delivery up to the plaintiff by the defendant of:-

(a) the keys of the family house at Bonny and of the family house at Creek Road, Portharcourt, together with the family property in the said houses contained, which keys and property together with inventory were handed over by the plaintiff to the defendant for safe custody on or about 5th January, 1975, following the death of Chief Benoni Ezekiel Hart.

(b) Deed box containing deeds, indentures or instruments in respect of 41 Creek Road, Portharcourt aforesaid, and of the family lands situated at Obigbo, Komkom, Azuama and B. Dere, all in the Bori Local Government Authority Area, which box, together with the deeds, indentures or instruments, was also handed over by the plaintiff to the defendant on or about the date aforesaid.

3. N2,000.00 general damages for the detention of the said keys, property and deed box, deeds, indentures or instruments despite demands.”

Later, on the application of other persons, namely, Louis Benoni Ezekiel Hart and Estella Benoni Ezekiel Hart for themselves and other children of Ezekiel Hart and Benoni Ezekiel Hart were joined as second set of defendants.

Pleadings were ordered, filed and exchanged and issues joined. At the end of the proceedings, judgment was given in the plaintiff/respondent’s favour with the following orders by the learned trial Judge-

“1. I grant the plaintiff the declaration he seeks that as Chief or Head of the Ezekiel Hart House he is entitled to the custody and control of all property real and personal of the said Chief Ezekiel Hart (deceased).

2. I give judgment for plaintiff for the delivery up to him by the 1st defendant of the keys of the family houses at Bonny and the family house known as No. 41 Creek Road, Portharcourt, together with the family property in both houses contained.
3. I am unable to make an order in respect of the deed box, as the claim for its return is based on exhibit ‘H’ knowledge of which 1st defendant denies, and which in fairness to him, I find he did not sign.

Plaintiff has also claimed N2,000.00 general damages for detention of the said keys, property and deed box etc. I think the mention of property and deed box is superfluous, for only the keys were given to 1st defendant. The other items were supposed to be in the house. An action in detinue will lie at the instance of a plaintiff from whom the defendant has received a chattel but fails to return it when demand is made. From the evidence, I believe that the keys were not handed to 1st defendant by plaintiff alone. I believe they were handed to him collectively by the members of the house present at the time. If they all had demanded the keys back from him and he had refused to surrender them, he would have been liable in detinue. In the present case as the demand was made by plaintiff alone, I do not find 1st defendant liable in detinue.”

Aggrieved by the judgment of the trial court, the defendants appealed to the Court of Appeal. They also applied in the High Court for a stay of execution of its judgment pending the determination of the appeal which was refused on 29th April, 1982. As a result, they applied to the Court of Appeal, Enugu Division for the same relief which was granted on 13th October, 1982.

The plaintiff also cross appealed against the refusal of the trial court to grant him relief of N2,000.00 general damages for detinue as contained in his statement of claim.

On 3rd September, 1984, both the main appeal and the cross appeal were heard by the Court of Appeal and judgment delivered on 29th November, 1984. In the lead judgment delivered by Phil-Ebosie, J.C.A., [with which both Aseme and Aikawa JJ .C.A. agreed], the main appeal by the defendants was dismissed while the plaintiff’s cross appeal was allowed.

Still dissatisfied with the judgment of the Court of Appeal, the defendants filed notice of appeal to this court dated 11th January, 1985. Following the judgment of the Court of Appeal supra, the plaintiff, in 1986, started committal proceedings against the defendants in the Portharcourt division of the Rivers State High Court for contempt of court in that notwithstanding the judgment of the Court of Appeal in the matter, the 1st defendant refused to hand over to the plaintiff the vacant possession of the two houses in dispute and their respective keys.

The learned trial Judge who dealt with the application for committal, found in his ruling dated 12th June, 1986 as follows-