Alhaji Sulaiman Mohammed V. Lasisi Sanusi Olawunmi & Ors (1993)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The genesis of this case began with suit No. LD/1213/76 which was filed in the High Court of Lagos in 1976. The High Court decision in that case went on appeal to the Court of Appeal as suit No. FCA/L/95/78 and then to this court as Suit No. SC 61/1980. This court while dismissing that appeal remarked as follows:-

“Mr B.A. Augusto for the appellants did not object to a suggestion by Mr. Abraham Adesanya learned counsel for the respondents that a plan ought to be filed. We therefore ordered a plan to be filed. Mr. Augusto also agreed that the injunction granted by the court should be tied to the plan. It was upon this concession that in dismissing the appeal of the appellants it is ordered that the injunction granted by the trial court be tied to the area edged red in Plan No. GP/1150 made by G.P. Okusanya as a certified true ‘copy of Plan No. AB 1381 which was originally made by one A.B. Apatira licensed surveyor on 13th August, 1962. With this order incorporated as part of the judgment of the trial court, the appeal of the appellants is hereby dismissed.”

It was alleged that the defendants flagrantly disregarded the order made by the Supreme Court. An application for their committal on contempt of the order was therefore brought in the High Court of Lagos State before Fernandez J. After hearing the parties, the learned trial Judge ruled thus:-

“This order was made in suit No. LD/1213/76 Appeal No. FCA/L/ 95/78 SC/61/1980. It follows therefore that there is a valid order of injunction which is enforceable by committal proceedings. What then are the interference of the respondents Paragraphs 4-10 of the affidavit in support give the details of the interference by the respondents and the reaction of the applicants. These interferences varies (sic). While some are institution of legal proceedings in court, others are selling and building on the applicants’ land. In proof of these allegations, the plaintiffs’ only Exhibits 7, 8 and 9 attached to the fun her affidavit speak directly by showing interference of the respondents. There is no evidence of any selling or building any part of the plaintiffs’ land before me. The respondents did not offer any reasonable explanation to Exhibits 7. 8 and 9.

Exhibit 7 is a letter from the Lagos State Government in which the state Government informed the Ado Family that the families of Emiabata, Gejere and Gashinbaki on behalf of Odan Family through a solicitor requested the Government not to pay any compensation to the Ado Family. The letter was dated 25th June, 1984.

Exhibit 8 is the letter informing the Badagry Local Government of the appointment and recognition as Bale of Abule Ado village. Exhibit 9 was a letter asking for similar appointment and recognition of Alhaji Rufai Jubril as Bale of Gejere Town. Gejere Town is within the land of the applicants. Exhibits 8 and 9 were written on the 12th and 19th December, 1985 respectively. These steps as I have earlier said are conclusive acts of contempt and (before and after Forms 48 and 49 were issued and served) which the applicants put forward without any answer from the respondents. Though this is a civil contempt nonetheless the breach of the order must be proved beyond all reasonable doubt as in criminal prosecution. Thus apart from the affidavit of both parties there must be further evidence to incriminate him. Conversely, the slightest interference once proved is punishable for the requirement is not the gravity of the act but the actual commission of the act. The respondents therefore committed an act of contempt as regards Exhibits 7, 8 and 9. I therefore found (sic) the respondents guilty of contempt of the order of this court confirmed by Court of Appeal and the Supreme Court in suit NO. LD/l213/76; FCA/L/95/78 and S.C. 61/1980.”

Instead of sentencing the defendants, the learned Judge stated as follows:-

“I will suspend sentence until the respondents were able to purge themselves of the following within fourteen (14) days:

1. That the respondents and their agents move away from the land of Ado Family as shown in Exhibit’ 1 ‘(i.e.) the plan).
2. The respondents are hereby ordered to withdraw the letters Exhibits 7, 8 and 9 attached to the affidavit in support dated 20th June, 1986.
3. That the respondents do produce in court copies of letters of withdrawal of the said Exhibits 7, 8 and 9 attached to the said affidavit, and also to confirm to the recipient of these letters that they have no authority to do what they did in accordance with the Supreme Court Order as aforesaid. In default of this purge within the time stipulated, I will pronounce my sentence in accordance with the law taking into consideration the gravity of the offences. In the meantime, the 1st – 11th respondents are to be on Bail in the sum of N1,000.00 (One thousand Naira) and one surety in like sum. Each surety is to undertake to produce the respondents bailed, by 9 a.m. on the 3rd October, 1988. The Chief Registrar shall have power to approve the sureties. A surety can take two of the accused persons on Bail.” The ruling in question was given on 21st September, 1988 but there was an earlier ruling given by the same Judge on 30th June, 1988. With regard to the latter ruling, the defendants obtained from the High Court leave to appeal to the Court of Appeal and they filed appeal to that effect. The defendants filed a notice of appeal against the ruling delivered on 21st September, 1988 without first obtaining leave to do so. The defendants subsequently filed an application in the Court of Appeal to regularise the omission by seeking an extension of time within which to seek leave to appeal and for leave to appeal against the ruling of 21st September, 1988. This application was followed yet by another application in the Court of Appeal by the defendants asking for a stay of further proceedings before Fernandez, J. pending the determination of the appeal filed against the High Court rulings of 30th June, 1988 and 21st September, 1988 and a stay of the execution of the latter ruling. The plaintiffs by a motion raised a preliminary objection in the Court of Appeal in respect of the appeal against the ruling of 30th June, 1988 on the grounds inter alia that the notice of appeal filed was in breach of section 25 subsections 2(a) and (3) of the Court of Appeal Act, 1976 and that the leave to appeal granted by Fernandez, J. was invalid since the learned Judge lacked the jurisdiction to grant it out of time on the authority of Bowaje v. Adediwura, (1976) 6 S.C. 143 and Amudipe v. Arijodi, (1978)9-10 SC. 27. The preliminary objection was upheld by the Court of Appeal and the notice of appeal against the ruling of Fernandez J. of 30th June, 1988 was struck out. The application to the Court of Appeal asking for enlargement of time within which to seek leave to appeal and for leave to appeal was heard by the Court of Appeal which held that the appeal was properly filed as no leave was necessary for an appeal under section 220(1)(g)(i) of the 1979 Constitution under which the appeal against the ruling of 21st September, 1988 fell. The application for stay of further proceedings and stay of execution was also heard by the Court of Appeal and both prayers were granted.

The defendants appealed to this court in Suit No. S.C.42/1989 against the rulings of the Court of Appeal. This court held that the Court of Appeal was right in striking out the notice of appeal against the ruling of Fernandez, J. of 30th June. 1988. With regard to the notice of appeal against the ruling of 21st September, 1988. The court held that that appeal was interlocutory in nature; therefore, leave to appeal was necessary and since it was not obtained, the appeal was incompetent and it was struck out The orders of the Court of Appeal granting the stay of further proceedings and execution were also set aside by this court.

In effect the status quo was maintained, namely that rulings made by Femandez J on 30th June, 1988 and 21st September, 1988 remained extant following the decision of the Supreme Court. What remained before the Court of Appeal was an application by the defendants filed on 2nd November. 1988 in which the defendants sought an extension of time within which to seek leave to appeal and for leave to appeal against the ruling of Fernandez, J. of 21st September, 1988 and to deem the notice of appeal against the ruling, which was filed on 26th September. 1988, as properly filed.

On 10th April, 1990 another application was filed by the defendants in the Court of Appeal praying as follows:-

“(1) To move their motion dated 3rd (sic 2nd) November, 1988 for leave to apply for extension of time within which to seek leave to appeal against the ruling of Honourable Justice E. Akin Fernandez of the Lagos High Court No.6 dated 21st September. 1988 and for leave to appeal.

(2) An ORDER for stay of any further proceedings in this matter at the Lagos High Court No.6 by Hon. Justice E. Akin Fernandez pending the determination of appellant’s motion dated 3/11/88 and also pending the determination of the appeal for which leave to appeal is being sought.