H.R.H. Oba Ezekiel Ogunleye V. Prince Joshua O. Aina (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling/Judgment of the High Court of Kwara State, delivered by Hon. Justice, A.S. Oyinloye on the 3rd day of December, 2010, wherein the learned trial judge declined jurisdiction on the premise that the nature of the case of the plaintiff as well as the method adopted in the initiation of the case did not vest the Court with jurisdiction. The Lower Court had, however, considered the case on the merit before dismissing it, when the court said:

“In the final analysis and on the merits of this case, I am convinced that the Respondent is not exposed or amendable to the Order of Committal sought vide this Application, I return ‘NO’ as an answer to question earlier on raised by this Noble Court in this Ruling. I refuse to make the Order of Committal, the Application on the merits fails and same is accordingly dismissed.” (Page 379 of the Record).

The Appellant, as Judgment/Creditor/Applicant at the Lower Court had taken out a motion against the Respondent (as Judgment Debtor/Respondent) under Section 287(2) of the 1999 Constitution; Order 47 Rule(1) of the Kwara State High (Civil Procedure) Rules, 2005; Section 72 of the Sheriffs and Civil Process Act, Cap. S26 LFN 2004; Order 9, Rule 13 of Judgment (Enforcement Procedure) Rules and Under the Inherent Jurisdiction of the Honourable Court, seeking the following:

(1) An Order committing the judgment – Debtor/Respondent to prison for having disobeyed the Order of the Court of Appeal Ilorin Division, made on the 10th day of June, 2010 restraining him, among other things, from further parading himself as Eletan of Etan. And such further Order(s) as this Honourable Court may deem fit to make in the circumstances.

GROUNDS FOR THE APPLICATION

The judgment – Debtor/Respondent, after being served with form 48, endorsed with enrolled Order of the judgment of the Court of Appeal, Ilorin Division, restraining him from further parading himself as the Oba and Eletan of Etan, continues to parade himself as the Oba and Eletan of Etan.”

The application was supported by affidavit of 9 paragraphs and exhibits, including Exhibits EA01, EA04 and EA04A, that is, the judgment of the Court of Appeal, a copy of Form 48 and the enrolled order of the Court of Appeal on the judgment, respectively. The Applicant also exhibited Exhibit EA05, being picture of signpost of the palace of the Respondent, taken after the judgment of the Court of Appeal, still claiming to be the Oba and Eletan of Etan.

The learned trial judge gave the Ruling after considering the entire application and the affidavits, including the counter-affidavit of the Respondent and the addresses of counsel on the issue. Appellant, therefore, brought the appeal against the refusal and dismissal of the application for committal by the trial judge.

He filed the Notice and Grounds of Appeal on 22/2/2011, wherein he raised Eleven (11) grounds of Appeal, as follows:

GROUND ONE

The learned trial judge erred in law in holding thus:

“I have read the provision of S. 287 of the Constitution of the Federal Republic of Nigeria, 1999 very well, S.72 of the Sheriffs and Civil Process Act vis-Ã -vis the clear provision of Order 47 Rule 1(2)(a), (b) and (c) of the High (sic) (Civil Procedure) Rules, of Kwara State, 2005 generally and I have come to the conclusion that there is force in the argument of the Applicant’s Counsel that the Constitution of the Federal Republic of Nigeria, 1999 vide S.287 places a duty on this Noble Court to enforce the judgment of the Court of Appeal as embodied in Exhibit EA01 in this matter. However, it is instructive to note that the same Constitution does not prescribed any procedure to be followed when the enforcement relates to contempt as in this matter. I have equally found out that the power conferred on this Noble Court vides S.72 of the Sheriffs and Civil Process Act is also without prescribed procedure…”

PARTICULARS OF ERROR IN LAW