Ganiyu Obatula & Ors. V. Chief E.S.B. Wilkey & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

This is an appeal against the decision of the High Court, Ota, Ogun State, to dismiss the Appellants’ Application to have the Respondents committed to prison for disobeying an earlier Judgment of the Court in Suit No. HCT/38/96.

In the Application dated 11th April 2001, the Appellants prayed the Court for –

(A)”An Order for the committal of (the 8 Respondents) to prison for having disobeyed the Judgment of this Honourable Court in Suit No. HCT/38/86 delivered on the 16th day of August 1994 ordering a Perpetual Injunction against the Defendants in this action and their privies in title or interest from further committing acts of trespass on the res in Suit No. HCT/38/86 being all that piece or parcel of land – lying and situate and being at Isheri Oke or Isheri Oke Church in the Ogun State of Nigeria.

(B)An Order of this Honourable Court declaring the Power of Attorney made on the 11th of July 1997 by the 1st, 2nd, 3rd, 4th, 5th, 7th & 8th Respondents in favour of the 6th Respondent herein and all other acts and deeds in furtherance of the said Power of Attorney a Nullity on the basis of the legal maxim of Nemo dat quod non habet.

THE BREACHES COMPLAINED OF:

i. Total failure of the Defendants privies in title or interest to obey the subsisting Judgment of this Honourable Court delivered in this action on the 16th of August 1994.

ii. The unlawful and relentless harassment of the Plaintiffs and their privies in title or interest by the Defendants generally and the 6th Respondent in particular, whilst relying for no reasonable cause assigned on the existence of the Power of Attorney dated 11th July 1997: Deed/Agreement for Sale of land made on the 7th of March 1976 and Survey Plan No. AKN/OG851A& B/94, all made in connection with the res litigated upon in Suit No. HCT/38/86 and on which final and subsisting Judgment was delivered by this Honourable Court on the 16t of August 1994″.

The Application was supported by a 31-paragraph Affidavit deposed by the 5th Appellant, wherein it was averred as follows in paragraphs 2 – 10 thereof –

2. That I am aware that on the 16th of August, 1994, Honourable Justice G. A Bakre sitting at Court No.1, High Court, Ota, Ogun State delivered final Judgment in this action in favour of the Plaintiffs. The said judgment is herewith annexed and marked as Exhibit ‘A’.
3. That I am aware that the Judgment against the Defendants in this action restrained the said Defendants, Servants, Agents and Privies or Assigns from further committing acts of trespass on the Plaintiffs’ land in dispute –
4. That I am aware that the Judgment mentioned in paragraph 2 [supra] concerns the Plaintiffs’ land at Isheri in Ogun State delineated on the annexed Survey Plan No. ADAKS026/0G/91 marked Exhibit ‘B’ – and the said Judgment have not been stayed, set aside or overruled on appeal.
5. That I am aware that by recent overt acts, the Defendants through their Privies and/or Agents have re-opened their acts of trespass on the Plaintiffs’ land which was adjudged to the said Plaintiffs by this Honorable Court in this action in 1994.
6. That I know as of fact that the Respondents – are the Privies in title or interests and Agents of the Defendants as the said Respondents along with the 3rd, 4th, 5th, 6th & 7th Defendants on record are all members of the Kumoworo family comprising the three branches of Oshorun at Isheri and Agboyi; Ikosi at Ikosi and Ikoro at Agboyi Oruba whilst the 6th Respondent is the Agent of the Defendants having regards to her claim of being in possession of a Power of Attorney dated 11th January, 1997 in respect of the land on which the Plaintiffs have a subsisting Judgment.
7. That I know as of fact that Suit No. HCT/38/86 was contested by the parties to the said action in a representative capacity.
8. That now shown to me and marked as Exhibit ‘C’ is the photocopy of the Power of Attorney granted to the 6th Respondent by the Privies in title and interest of the Defendants on record being the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th Respondents herein.
9. That in exercising the Power granted the 6th Respondent as disclosed in Exhibit ‘C’ -. The said 6th Respondent had on several occasions caused and or initiated the arrest, detention and prosecution of the Plaintiffs and other members of the Plaintiffs’ family who ventured to challenge the said 6th Respondent over her unlawful interference with Plaintiffs proprietary rights or legal rights on their land at Isheri Oke Church as awarded to them by this Honorable Court in Suit No. HCT/38/86.
10. That I am aware that the unlawful interference of the 6th Respondent with the land awarded to the Plaintiffs in Suit No. HCT/38/86 became more intense and severe after the Plaintiffs had taken pains to explain and show to the 6th Respondent the positive and direct Judgment of this Court.

Also attached to the Affidavit as Exhibits, are the following documents –

Exhibit D – Copies of “Invitation to the Police Station Forms” issued to the 5th Appellant and other members of his Family by the Police

Exhibit E – Certified True Copies of Criminal Charge Sheets of criminal charges filed at the Magistrate Court, Ota by the Police

Exhibit F – Copies of the Judgment and Striking out Order of the Magistrate Court, Ota, on the said criminal charges

Exhibit G – Copies of the Writ of Summons and Application of the 6th Respondent filed in Suit. No. HCT/27/2000 as Defendant/Counter-Claimant upon an interlocutory Application seeking injunctive relief Exhibit H – Copy of an Agreement of Sale of Land dated 7th of March 1976 between the 6th Respondent and 4 named Vendors