Chief Eyo Ogboni & Ors V. Chief Ojah Ojah & Ors (1988)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A. 

The procedure for committal under Order 9 rule 13 of the Judgments (Enforcement) Rules pursuant to Section 71 of the Sheriffs and Civil Process Law (Cap 108) of the Cross River State is quite often misunderstood, particularly in respect of when the judgment debtor was present in court at the time the order sought to be enforced was made. In that situation the question does arise whether notices under Forms 48 and 49 are necessary processes for a committal proceeding to be competent.

On 7 February, 1986, at the Calabar High Court, Effanga, J., in a reserved judgment made the following orders in favour of the plaintiffs:

“(1) The land occupied by Etono II village is part of Biakpan communal land under the Headship of the Paramount Ruler of Biakpan.

(2) A perpetual injunction restraining the defendants by themselves, servants, agents, or assigns, from ]easing, alienating or doing anything in Etono II village inconsistent with communal ownership of Biakpan in all that piece of land now occupied by Etono II village, Biakpan.”

The defendants appealed and in the meantime applied for a stay of execution. The application was heard by Kooffreh, CJ who on 24th July, 1986 granted a stay in the following terms:

“The status quo before the case must be maintained until the appeal is heard. This ruling does not in any way give the applicants, Etono II any right to do anything inconsistent with the judgment until the appeal is determined. It is on this understanding therefore that the execution of the judgment by the respondent is stayed until the result of the appeal is known.” (Kooffreh, CJ’s emphasis).

Later on 18th March,1987 in a letter addressed to Chief (Dr.) Okoi Arikpo & Associates, the plaintiffs’ solicitors, Orok Ironbar & Associates, defendants’ solicitors, complained that Etono people (the defendants on record were not specifically mentioned) had cleared various portions of the land without the consent of Biakpan Chiefs and Elders for farming purposes.

There was a warning that if such an act persisted, committal proceedings would be commenced. On 8th April, 1987 a motion on notice to commit the defendants to prison was filed.

It was heard on 19th May, 1987 by Kooffreh, CJ. Reliance was placed on the affidavit in support and counter-affidavit. On 8th June, 1987 in a reserved ruling the learned Chief Judge held:

“I do not intend to send the whole village to prison but they are fined the sum of N3,000.00 (three thousand naira) which is to be paid immediately. Until this is done, their representatives now in court will be committed to prison … The cost of this application is fixed at N50.00 against the Respondent, Etono II.”

I shall advert to the implication of this conviction at a later stage in this judgment.

The defendants (as appellants) now complain that the committal proceedings not having complied with Order 9 rule 13 of the Rules was incompetent and that a conviction thereunder, cannot stand. The other complaint is that a wrong interpretation was given to what must be understood as the “status quo” which should he maintained until the appeal against the injunction order was determined.

The terms of the conviction as contained in Kooffreh CJ’s decision quoted above are to the effect that the whole village community of Etono II was convicted. This follows the manner in which the motion for committal was prosecuted because although the representatives of the village were named on record and brought to appear in court, they were prosecuted in a representative capacity. The other members of the community were in effect convicted in absentia and without any opportunity of being heard. As committal proceedings are of quasi-criminal nature for which punishment can be inflicted, it is a rule of natural justice that any person involved must be given reasonable opportunity of knowing the nature of the charge brought against him and of making his answer to it. This is so even if all that the punishment entails is a mere binding over: see R v. Wilkins (1907) 2 KB 380 at 383 per Al-verstone CJ; R v. Aubrey-Fletcher ex-parte Thompson (1969) 2 All E.R. 846 at 847 per Lord Parker CJ; and Bankole Kehinde v. Commissioner of Police (1973) 3 E.C.S.L.R. 897 at 898 per Reed CJ.