Alhaji Ishola Are Ogele V. Alhaji Aleru Dare (2008)

LawGlobal-Hub Lead Judgment Report

SOTONYE, DENTON-WEST, JCA

This is an appeal brought by the Appellant against the decision of Hon. Justice A.O. Bamigbola, delivered on 20th day of June 2006, in Suit NO. KWS/60/2001, in the High Court of Justice, Ilorin, rendered in favour of the Respondent.

In the Court below, the Appellant was the Plaintiff /Applicant while the Respondent was the Defendant/Respondent.

In the appeal, the Appellant appealed against the ruling of the Lower Court earlier referred to wherein Bamgbola J. after taking evidence in a contempt proceeding against the Respondents, dismissed the Appellant’s contempt proceedings brought against the Respondent holding, inter-alia, that the Appellant has not proved a case of contempt to order of Court beyond reasonable doubt, holding thus: “In the result, I am of the considered opinion that the Judgment Creditor has not only failed to prove that the Judgment Debtor by himself or through his workmen went to the land in dispute in breach of the order of this court of 3rd May, 2001, he has also failed to establish that the Judgment Debtor did so with a guilty mind. In other words, that he deliberately disobeyed the said court order. A contempt of court is an offence of a criminal character, it must be proved beyond reasonable doubt.” See section 138 of Evidence Act. See also FALUYI VS. ODERINDE (1987) 4 NWLR (C.A) (Pt, 64) 155 AT P. 162

The offence is punishable with fine or imprisonment. This application is asking the court to commit the Judgment Debtor to prison for disobedience or failure to comply with the order of court.

If, in fact, the order is disobeyed, the court has the power to punish the defaulting and the disobedient party for contempt of court accordingly by fine or imprisonment. Therefore, the burden of establishing the case is thus heavier on the Applicant. Unlike in civil cases, the standard of proof required here is proof beyond reasonable doubt. The burden of proof in this case is on the Judgment Creditor to prove the act of disobedience on the part of the Judgment Debtor with respect to the court order in question, and also that he did that deliberately. I have found earlier on in this judgment that this Court has doubt as to whether the Judgment Debtor went to the land in question subject-matter of the court’s order of 3rd May, 2001. In this case, and/or that his disobedience as claimed by the Judgment Creditor, if at all, was deliberate. That doubt will be resolved in favour of the Judgment Debtor, the alleged contemnor. See AWOBOKUN VS. ADEYEMI (1968) NMLR 289. I therefore hold that the offence of contempt has not been proved.”

Dissatisfied with the ruling, the Appellant proceeded to this Court challenging the ruling granted in favour of the Respondent on grounds, inter-alia, that the decision has led to a miscarriage of Justice and that it is totally against the weight of evidence.

The background facts of the appeal in the Lower Court, in a nutshell, is that whilst the substantive suit was pending and was yet to be heard, the Lower Court on the 3rd of May, 2001, after the hearing of the motion exparte filed on the 5th April, 2001 by the Plaintiff/Applicant, granted the applicant an order in his favour whereby the Defendant/Respondent was restrained through or by himself, his servants, agents, privies and any person or persons however be from committing and/ or continue to commit further acts of trespass or doing, anything whatsoever on the Plaintiff’s family land, the subject matter of this suit situate, lying and being along Airport Road Budo, Nuhu Village, Ilorin, Kwara State of Nigeria pending the hearing of the motion on notice”

It is the interim order above that the Appellant herein alleged that the Respondent disobeyed by sending his workmen to work on the land in dispute. The Appellant immediately through a motion on notice supported by affidavit asked the court below to commit the Respondent for contempt of court. The acts amounting to the contempt of court were as contained in the Applicant’s supporting affidavit. The Respondent responded to the allegation of disobedience to the order of court by categorically denying ever doing any of the acts alleged against him in the Applicant’s supporting affidavit, particularly in paragraphs 9 to 13 of his counter affidavit. The Court below after taking evidence, both affidavit and viva voce, ruled as above that the allegation of disobedience of the order of court as alleged was not proved beyond reasonable doubt.

The Appellant, dissatisfied, has appealed to this Court against the ruling of the Court below holding that the allegation of contempt against the Respondent has not been established.

When this appeal came up for hearing in this Court, the learned Counsel to the Appellant Mr. S. I Abaye submitted that the Appellant’s brief is dated 9th day of January, 2007 and filed on the same date and there is also a reply brief to Respondent’s brief dated the 19th Day of April, 2007 and a Cross Respondent brief’s dated and filed the 5th day of October, 2007. Mr. Abaye adopted the Appellant’s brief and Cross-Respondent’s brief and urged the Court to hold that the Respondent has not proved that he is entitled to the Lower Court’s Order and therefore prayed the Court to allow the Appeal.

However, Tunde Olumo Esq., the learned Counsel to the Respondent adopted the Respondent’s brief of argument and relied on same. He consequently made submissions to the Court to dismiss the appeal on the grounds that the Appellant had failed to proof that the Respondent disobeyed the order of the Court by going into the land and, emphasizing that the Respondent is entitled to cost having been subjected to pains of trial without just cause.

Further, Tunde Olomu Esq. identified the Cross-Appellant’s brief dated 5th day of October, 2007 and filed the same d ate, which was adopted and relied upon by him. Consequently, he urged the Court to allow the cross appeal on the grounds adumbrated therein.

The Appellants identified three issues for determination namely:-