James Idiege Oko V. Mr. Ede Aganyi (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Cross River State High Court contained in the ruling delivered on 23/4/2009 in Suit No HD/5/2008, dismissing a motion filed by the Appellant for the committal of the Respondent for alleged contempt of court for breach of an undertaking by their counsel.

The learned counsel for the Appellant felt aggrieved by that decision and so he filed the notice and ground of the appeal against it on the 4/5/2009. Because of their brevity and the need to fully appreciate the three grounds of the appeal, it is expedient and so I can afford to set out them in detail. They are as follows:

“GROUND ONE

ERROR IN LAW: The learned trial judge erred in law in holding that “the undertaking by counsel for the defendants in court, albeit, an undertaking is not such that a breach of same can be treated as civil contempt.”

PARTICULARS OF ERROR

1. There are no two types of undertaking known to law.
2. The Respondents did not deny making an undertaking to the court.

GROUND TWO

ERROR IN LAW: The learned trial judge erred in law in holding that the Respondents were not in contempt of court when:

1. The Respondents did not deny making mounds on the eastern boundary of the portion of land in dispute during the pendency of this suit.
2. The Respondents did not deny constructing a building at the western boundary of the portion of land in dispute during the pendency of this suit.
3. The Respondents did not deny entering the portion of land in dispute and harvesting palm fruits therefrom during the pendency of this suit.

GROUND THREE

ERROR IN LAW: The learned trial judge erred in law in refusing to make a committal order against the Respondents when:

PARTICULARS OF ERROR

1. There was uncontradicted/unchallenged evidence before the trial court establishing that during the pendency of this suit, the Respondents conducted themselves in a manner that defied the authority and dignity of the court.
2. The learned trial judge failed in his duties to invoke his judicial powers to make an order of committal against the Respondents in order to protect the integrity, dignity and reputation of the judiciary.”

In compliance with the Rules of the court, the Appellant’s brief was filed on the 9/7/09 and served on Mr. S. Gbebi Nlul, Esq. for the Respondent in court on the 28/2/12.

On the 3/5/12, the court granted the Appellant’s motion for the appeal to be heard and determined on the Appellant’s brief alone in the absence of any record that the Respondent counsel had filed the Respondent’s brief in response or reaction to the Appellant’s brief by that day.

The appeal was thereafter set down for hearing on the 25/9/12 with an order by the court that the Respondent’s counsel be served with Hearing Notice to that effect before then. On the 29/9/12 when the appeal came up for hearing, the Respondent was absent and not represented by counsel even though the report of service by the Bailiff of court indicated that the learned counsel for the Respondent was duly served with hearing notice as directed by the court. There was no communication to the court from him.