Igwe Josiah Agu & Ors. V. Ozo I. O. U. Anyalogu & Ors. (2001)

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FABIYI, J.C.A.

This is an appeal against the ruling, handed out by Ugwu, J., as he then was, sitting at Enugu High Court, on 16th April, 1997.

It is apt to state briefly, the background facts leading to the above stated ruling under fire. On 3-5-94, Onyia, J. made an order in favour of the plaintiffs/appellants herein, against the defendants/respondents in the following terms:-

“An interlocutory injunction restraining the defendants jointly and severally by themselves, their agents, privies and servants from installing the 1st defendant as the first Esaa or Esaa I of Ngwo Asaa or in any manner whatsoever, holding out himself as the Igwe or Igwe elect of Ngwo Asaa by whatever name called pending the determination of the substantive suit.”

The 1st defendant/respondent felt dissatisfied with the ruling. He appealed to this court and the suit number of that appeal is CA/E1105/96. He filed appellant’s brief of argument, dated 12-6-96 therein. Same was served on the present appellants’ counsel.

Vide the motion on notice, dated 12-2-97 and filed on the same date, the appellants herein prayed for an order committing the 1st respondent to prison for disobeying court order. Reliance was placed on Order 35 of the High Court Rules, 1988.

A notice of preliminary objection, dated 18-2-97, was filed on behalf of the respondents in this appeal. Relevant grounds of objection, as deposed to in supporting affidavit, are that there is an appeal pending on the ruling in this court and Forms 48 and 49 were not served on the 1st respondent. In substance, the respondents maintained that the application for committal of the 1st respondent to prison for contempt was incompetent.

Counsel for both sides, addressed the trial Judge. In the well considered ruling of 16-4-97, he upheld the preliminary objection and dismissed the plaintiffs/appellants’ application for committal dated and filed on 12-2-97.

The appellants herein, being dissatisfied, filed their notice of appeal which complained against the ‘whole decision’. Three grounds of appeal accompanied the notice of appeal. From the three grounds of appeal, each side of the divide formulated two issues for determination in this appeal.

The appellants couched their own two issues for determination as follows:-

“(i). Whether Order 35 of the High Court Rules of Anambra State, 1988, applicable to Enugu State, is a valid enactment and applicable in the circumstances, and if so, whether the plaintiffs complied with its provisions.

(ii) Whether the fact that the defendant had appealed against the order against which the said contempt was committed divested the trial court of its jurisdiction to entertain the said application for committal in the absence of an order for stay of execution of the said order or an application for same.”

The two issues formulated on behalf of the respondents herein are as follows:-

“1. Where an appeal has been entered in the appellate court, does the court from which the appeal emanates continue to exercise jurisdiction over the proceedings between the parties.