Alhaji Habib Bako V. Mallam Samaila Mai-adashi (1996)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A. 

The appellant sued the respondent in the High Court of Justice Kaduna claiming as follows in paragraph 17 of the Statement of Claim:-

“Whereof the plaintiff claims right of way over the passage on the left hand side of plot B. 12 Ibrahim Taiwo Road, Kaduna which the defendant claims forms part of his land, a right to light and declaration that the plaintiff is the owner of the said passage and he is so entitled to those reliefs.

The plaintiff also claims a perpetual injunction restraining the defendant, his successors in title and assignee from preventing it obstructing the plaintiff in the exercise of the rights claimed.”

The trial court gave judgment in its concluding part as follows:-

“I accordingly find merit in the plaintiff’s claim and it succeeds but only with regards to his right of way over the passage on the left hand side of plot B. 12, Ibrahim Taiwo Road, Kaduna which passage goes through the defendant’s plot, that is, plot B 12. I also find because the plaintiff did not adduce an evidence to support his claims for right to light. I therefore deem it so abandoned.

I also make the following orders:

1. The plaintiff is hereby granted right of way over the passage on the left hand side of plot B. 12 Ibrahim Taiwo Road, Kaduna which passage goes through the defendant’s plot B. 12 to the plaintiff’s plot 12A.
2. The plaintiff is also hereby granted a perpetual injunction restraining the defendant, his successors in title and assigns from preventing or obstructing the plaintiff in the exercise of the right of way just granted him.”

This judgment was delivered on the 30th of January, 1992. On the 11th of February 1992 the appellant brought an application before the trial court for the respondent to show cause why committal order should not be made against him for disobeying the order of court made in its judgment given in his favour. The application reads:-

“Take Notice that this Honourable Court will be moved on the … day of … 1992 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the judgment Creditor/Application for the following orders:-

1. An order to commit the above named judgment debtor/respondent to prison custody for contempt of court which he committed by depriving the judgment creditor/applicant from reaping the fruits of the judgment of this honourable court on 30.1.92 to wit: – he obtained the judgment creditor/applicant from using the said passage and making improvement thereon.
2. An order to so commit the judgment debtor/respondent to prison until he has purged himself of the contempt and ready and willing to comply with the judgment and orders of this honourable. And take Notice that the ground upon which this application is sought:-

a. The judgment debtor/respondent hired people to physically obstruct the judgment creditor and he along with these people [laced a kerosene tank on the passage to obstruct the judgment creditor/applicant’s use and improvement of same.

3. And for such further or other orders in reply to this motion and the trial court after hearing the motion on the 16th of May, 1993 visited the locus in quo and gave its ruling on the 24th of June, 1993. The concluding part of the ruling reads:-

“On the issue of committing the respondent to prison, it is my considered view that I cannot commit the respondent for contempt, since from what I have seen on visiting the place in dispute, the respondent has not completely obstructed the passage. At any rate, paragraph 18 of the counter affidavit has not been controverted. A doubt has, therefore, been cast in my mind as to when this partial obstruction was set up. Was it before or after my judgment of January, 1992? Contempt is a criminal offence and must be proved beyond reasonable doubt. That, the applicant has failed to do. Be that as may be, however, the kerosene tank is clearly causing a partial obstruction and in order for the applicant to fully enjoy the fruits of my judgment, that tank has to be removed forthwith. I accordingly so order and also make the following orders:-

1. The presence shall henceforth be kept free of any obstruction whatsoever by both the applicant and the respondent.
2. The applicant is also entitled to keep the passage to his plot in motorable condition.
3. Both the applicant and respondent, their successors in title and assignee or privies are hereby restrained from parking cars or putting any obstruction whatsoever on the passage.”

The appellant was dissatisfied with this ruling with particular reference to the orders made by the trial Judge which had the effect of amending its judgment and appealed to this court on 3 grounds of appeal. In accordance with the rule of this court the appellant filed a brief of argument and identified one issue for determination as follows:-

“a. Whether or not the learned trial court was functus officio on the matter of the grant of the right of way, after delivering the first judgment on the 30th of January, 1992, in this case;

or in the alternative