Attorney-general Anambra State V. Ephraim Okeke (2002)

LAWGLOBAL HUB Lead Judgment Report

E. O. AYOOLA, J.S.C. 

This is an appeal from the decision of the Court of Appeal [Achike, Ejiwunmi and Tobi, JJ.C.A (as they then were)] committing the 2nd, 3rd, 4th, 5th and 6th appellants (referred to in this judgment as “defendants”) to prison for two months or to pay a fine of N500.00 each.

The background facts.

On 16th December, 1993, the respondents in this appeal (referred to in this judgment as “the plaintiffs”) who had obtained an order of interim injunction against the defendants brought an application for committal of the defendants for their disobedience of the order. On 20th December, 1993 counsel for the plaintiffs withdrew the application against the 2nd and 5th defendants who had not been served. Those defendants were accordingly struck out from the application. The matter, then before Egbue, J. was adjourned to 21st of January 1994 for further hearing. By that date the matter had come before Anijah-Obi, J. who on 21st March, 1994 heard arguments as to the order in which the two motions then before him, namely: one by the defendants to strike out the plaintiffs’ suit for want of locus standi and the other by the plaintiffs to commit the defendants to prison, should be heard. On 13th April, 1994 he ruled that he would hear the latter first. However, in the meantime, on 12th April, 1994 counsel for the defendants had filed a notice of objection to the committal application on the ground of non-compliance with the provisions of 0.1 r. 14 of Judgments (Enforcement) Rules. Anijah-Obi, J., heard arguments on the objection on 13th April, 1994. On 10th June, 1994 he delivered a ruling upholding the objection and struck out the application for committal.

The appeal to the Court of Appeal.

The plaintiffs appealed to the Court of Appeal contending, in the main, that there was substantial compliance with the Judgment (Enforcement) Rules made under the Sheriffs and Civil Process Law and also that the trial Judge should have committed the defendants on the materials before him. Counsel For the defendants responded to the former of those contentions but was silent on the latter in his brief of argument. The court below held that there was full compliance with O.9 r.13(2) of the Judgments (Enforcement) Rules and that all conditions precedent to issuance of Form 49 were met. Having so held, it reminded itself of its powers under section 16 of the Court of Appeal Act, 1976 which, inter alia, provided that the Court of Appeal “generally shall have full jurisdiction over the proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing.” Purporting to re-hear the appeal on the records, Achike, J.C.A., (as he then was) who delivered the leading judgment of the court below said:

“In this regard, I have already examined and evaluated the affidavit evidence placed before the trial court and which is now before us and have come to the conclusion that the case of disobedience of the order made by Ezeani, J., on 11/2/93 has been established and substantiated beyond reasonable doubt, that is to say, that the acts of disobedience of the said order of the lower court have been proved to the hilt separately and against each of the 2nd, 3rd , 4th, 5th and 6th respondents. In exercise of the powers vested in this court by virtue of section 16 of the Court of Appeal Act, 1976, I hold that each of 2nd, 3rd, 4th, 5th and 6th respondents has failed to obey the said order of the court. Accordingly, I order and commit each of the aforesaid.”

With that view Ejiwunmi, J.C.A., (as he then was) and Tobi, J.C.A., agreed. In the result, the court below made an order committing the 2nd to 6th defendants to prison with options of fine.

The three appeals before this court.

Against the decision there are now before us three appeals, respectively,

(i) by the Attorney-General of Anambra State who was the 1st defendant in the suit in which the order of interim injunction was made, but against whom neither was the order of interim injunction nor of committal made and who was not a party to the committal application:

(ii) by the 3rd, 4th and 6th defendants against whom the orders of interim injunction and committal were made and who were parties to the committal proceedings; and,

(iii) by the 2nd and 5th defendants who, though parties against whom the interim order was made, had been struck out of the committal proceedings and had therefore ceased to be parties to those proceedings when the order of committal was made.

Was there non-compliance with the Judgments (Enforcement) Rules