Louis B. Ezekiel Hart V. Chief George I. Ezekiel Hart (1990)

LawGlobal-Hub Lead Judgment Report

WALI, J.S.C.

The present respondent Chief G. I. Ezekiel Hart who was the plaintiff in the trial court sued James E. P. Hart in the High Court of Rivers State of Nigeria in the Portharcourt Judicial Division claiming as follows-

“PARTICULARS OF CLAIM”

1. A declaration that he is entitled to the possession or custody and control of all property real and personal of the said Chief Ezekiel Hart (deceased).
2. Delivery up to the plaintiff by the defendant of:-

(a) the keys of the family house at Bonny and of the family house at Creek Road, Portharcourt, together with the family property in the said houses contained, which keys and property together with inventory were handed over by the plaintiff to the defendant for safe custody on or about 5th January, 1975, following the death of Chief Benoni Ezekiel Hart.

(b) Deed box containing deeds, indentures or instruments in respect of 41 Creek Road, Portharcourt aforesaid, and of the family lands situated at Obigbo, Komkom, Azuama and B. Dere, all in the Bori Local Government Authority Area, which box, together with the deeds, indentures or instruments, was also handed over by the plaintiff to the defendant on or about the date aforesaid.

3. N2,000.00 general damages for the detention of the said keys, property and deed box, deeds, indentures or instruments despite demands.”

Later, on the application of other persons, namely, Louis Benoni Ezekiel Hart and Estella Benoni Ezekiel Hart for themselves and other children of Ezekiel Hart and Benoni Ezekiel Hart were joined as second set of defendants.

Pleadings were ordered, filed and exchanged and issues joined. At the end of the proceedings, judgment was given in the plaintiff/respondent’s favour with the following orders by the learned trial Judge-

“1. I grant the plaintiff the declaration he seeks that as Chief or Head of the Ezekiel Hart House he is entitled to the custody and control of all property real and personal of the said Chief Ezekiel Hart (deceased).

2. I give judgment for plaintiff for the delivery up to him by the 1st defendant of the keys of the family houses at Bonny and the family house known as No. 41 Creek Road, Portharcourt, together with the family property in both houses contained.
3. I am unable to make an order in respect of the deed box, as the claim for its return is based on exhibit ‘H’ knowledge of which 1st defendant denies, and which in fairness to him, I find he did not sign.

Plaintiff has also claimed N2,000.00 general damages for detention of the said keys, property and deed box etc. I think the mention of property and deed box is superfluous, for only the keys were given to 1st defendant. The other items were supposed to be in the house. An action in detinue will lie at the instance of a plaintiff from whom the defendant has received a chattel but fails to return it when demand is made. From the evidence, I believe that the keys were not handed to 1st defendant by plaintiff alone. I believe they were handed to him collectively by the members of the house present at the time. If they all had demanded the keys back from him and he had refused to surrender them, he would have been liable in detinue. In the present case as the demand was made by plaintiff alone, I do not find 1st defendant liable in detinue.”

Aggrieved by the judgment of the trial court, the defendants appealed to the Court of Appeal. They also applied in the High Court for a stay of execution of its judgment pending the determination of the appeal which was refused on 29th April, 1982. As a result, they applied to the Court of Appeal, Enugu Division for the same relief which was granted on 13th October, 1982.

The plaintiff also cross appealed against the refusal of the trial court to grant him relief of N2,000.00 general damages for detinue as contained in his statement of claim.

On 3rd September, 1984, both the main appeal and the cross appeal were heard by the Court of Appeal and judgment delivered on 29th November, 1984. In the lead judgment delivered by Phil-Ebosie, J.C.A., [with which both Aseme and Aikawa JJ .C.A. agreed], the main appeal by the defendants was dismissed while the plaintiff’s cross appeal was allowed.

Still dissatisfied with the judgment of the Court of Appeal, the defendants filed notice of appeal to this court dated 11th January, 1985. Following the judgment of the Court of Appeal supra, the plaintiff, in 1986, started committal proceedings against the defendants in the Portharcourt division of the Rivers State High Court for contempt of court in that notwithstanding the judgment of the Court of Appeal in the matter, the 1st defendant refused to hand over to the plaintiff the vacant possession of the two houses in dispute and their respective keys.

The learned trial Judge who dealt with the application for committal, found in his ruling dated 12th June, 1986 as follows-

“On the whole therefore, I find that both defendants, in defiance of the courts, have refused or avoided to carry out the order of the courts (High Court, 24th September, 1981; Court of Appeal 29th October, 1984) and have further, attempted to undermine or frustrate their effectiveness. If a person who is required to obey a court order deliberately sets to do an act to frustrate the effectiveness of the order, he is holding the courts in contempt.”

He then issued out the following interim orders –

“…that the 1st defendant within 7 days from today, do hand over to the plaintiff all items of property he removed from the Opuwari of Ezekiel Hart House, Bonny; and the 2nd defendant do move out of 41 Creek Road, Port Harcourt, within 7 days from today, failing which, appropriate orders would be made to compel them to carry out these orders made to satisfy the order of this court of 24th September, 1981 and confirmed by the Court of Appeal.” and adjourned further proceedings to 25th June, 1986. And when the matter came up on 25th June, 1986, the report was that both the 1st and the 2nd defendants had failed to comply with court orders given on 12th June, 1986. They were then committed to prison until they obeyed the order of the court.

On 2nd July, 1986, the learned trial Judge heard an application by the 1st and the 2nd defendants for an order –

“(I) allowing a stay or suspension of the order made by this honourable court on 25th June, 1986 committing the applicants for contempt of court for an indefinite period in that the 1st defendant failed to deliver to the plaintiff a deed box within 7 days as ordered by the court, and that 2nd defendant refused to vacate 3 rooms he occupies at No. 41 Creek Road, Portharcourt as ordered by the court on 12th June, 1986;

(II) Granting the applicants bail, pending the determination of their appeal to the Court of Appeal against the order of committal…”

After considering the application, the learned Judge dismissed it on 7th July, 1986 but adjourned the matter to 11th July, 1986 to afford the contemnors further opportunity of purging themselves of the contempt.

From what appeared in the record of proceedings, defendant, James E. P. Hart complied with the order of the court and abandoned his appeal against the order of the learned trial Judge that dealt with the contempt proceedings and as such his appeal was struck out by the Court of Appeal on 27th October, 1986 when an application by the 2nd defendant, Louis Ezekiel Hart for-

(1) an extension of time within which to appeal for a stay of execution of the ruling of Okara, J., dated 12th June 1986, and

(2) An interim order staying all further proceedings relating to the said ruling pending the hearing of the substantive motion for a stay of execution was considered and granted.

He also, as shown in paragraph 3 of his further affidavit sworn to on 24th October 1986, had complied with order of the court by “vacating the premises in dispute”, that is by vacating and handing possession of the three rooms at No. 41 Creek Road, Portharcourt. The substantive application was however taken and granted by the Court of Appeal same having not been opposed by learned counsel for the respondent/plaintiff.

The appeal against the order of committal bearing identification No.FCA/E/54/82 was heard by the Court of Appeal, Enugu on 24th June, 1987 and judgment reserved.

In a well considered judgment of the Court of Appeal written by Abdullahi, J.C.A. as he then was, with which both Olatawura and Macaulay JJ.C.A. agreed, he dismissed the appeal as unmeritorious and awarded N300.00 costs against the 2nd defendant, who was the only appellant.

The 2nd defendant has now further appealed to this court. Briefs were filed and exchanged by learned counsel on both sides.

Henceforth, the 2nd defendant will be referred to as the appellant while the plaintiff will also be referred to as the respondent. On 13th November, 1989 the appeal was taken by this court. Learned counsel on both sides adopted their respective briefs and made oral submissions in elaboration.

In the brief filed by the appellant, he formulated only one issue for determination, to wit –

“Given the facts of this case, did the defendant/appellant commit contempt of court”

For his part, learned counsel for the respondent, Mr. Chike Ofodile, S.A.N., formulated the following three issues for determination-

“3.1 Was the defendant/appellant in contempt of the order of court made on the 12th of June, 1986 Can the appellant properly raise in this court, the issue of the procedure adopted in initiating the contempt proceedings when the said issue was never canvassed at the lower court

Did the plaintiff/respondent employ the correct procedure in bringing the defendant/appellant to court for committal”

Before I go into the arguments of counsel in their briefs and which I consider relevant to the determination of this appeal, I shall first deal with counsel for the respondent’s preliminary objection that –

“The appellant’s ground 2 is being raised for the first time in this court. The procedure used by the respondent in initiating the contempt proceedings was never questioned at the Court of Appeal.”

The objection was conceded to by learned counsel for the appellant and to that extent, any argument relating to the procedure in initiating the contempt proceedings contained in the appellant’s brief is hereby declared irrelevant and of no effect. Ground 2 of the appellant is accordingly declared irrelevant and therefore struck out. See also order 8 rule 2(5) of the Supreme Court Rules, 1985. See also Idika & Ors. v. Erisi & Ors. [1988] 5 S.C.N.J. 28 (1988) 2 N.W.L.R. (Pt.78) 563 and Uor & Ors. v. Loko [1988] 5 S.C.N.J 16; (1988) 2 N.W.L.R. (Pt.77) 430.

So, the only issue left to be dealt with is whether the appellant was in contempt of the trial court’s order when he refused to vacate the three rooms he was occupying after that court’s judgment and its subsequent affirmation on appeal by the Court of Appeal, though the record showed that after the committal order the appellant vacated and gave up possession of the three rooms in No. 41 Creek Road, Portharcourt as ordered by the court.

It was the contention of the learned counsel for the appellant that the appellant was not in contempt of the trial court’s judgment when he remained in the rooms he was occupying at No. 41, Creek Road, Portharcourt as it was a family house and was in occupation of the rooms long before the judgment of the trial court. It was also his contention that in the body of the trial court’s judgment, there is no specific order against him that he should vacate the premises. He further complained that the learned trial Judge that dealt with the contempt proceeding – Okara, J., misinterpreted the judgment of the trial court’s order that the present respondent, as Chief or Head of Ezekiel Hart House, ‘is entitled to the custody and control of all the property, real and personal of the said Chief Ezekiel Hart (Deceased)’ to wit-

“The delivery up to him by the 1st defendant of the keys of the family house at Bonny and the family house known as No. 41 Creek Road, Portharcourt together with family property in both houses contained to mean handing vacant possession of the houses over to the respondent by the 1st defendant to affect the appellant against whom the said order was not directed, but the learned Judge was also wrongly influenced by coming to the conclusion that the appellant committed contempt by a letter dated 19th January, 1985, referred to by the 1st defendant in his affidavit the contents of which the appellant said he denied. He finally submitted that “faced with two conflicting documentary accounts of how the defendant/appellant came into possession of the said rooms, the Judge ought to have resolved that conflict through the taking of evidence. The Court of Appeal merely took the point as established that defendant/appellant was a trespassor and even “a trespasser” ab initio without any proof of that fact.” Learned counsel referred to the following decided cases to support his submissions-

Akinsete v Akindutire [1966] 1 All N.L.R. 147at 148;

Oluibukun & Ors. v Oluibukun [1974] 2 S.C. 41 at 48;

Uku & Ors. v Okumagba & Ors. [1974] 1 All N.L.R. (Pt.1) 475

and Eboh & Ors. v Obi & Ors. [1974] 1 S.C. 179 at 189.

Sheriff & Civil Process Law, Cap. 118 Laws of Eastern Nigeria, 1963 applicable to Rivers State and order 9 rule 13(1) of Sheriff & Civil Process Judgment [Enforcement] Rule of the High Court of Eastern Nigeria (applicable to Rivers State). to buttress his argument that no order was made against the appellant in the trial court’s judgment much less to comply with it.

On his part, learned counsel for the respondent, Mr. Chike Ofodile, S.A.N., submitted that in view of the judgment of Pepple J. [as he then was] that the respondent was entitled to the custody and control of all the property, real and personal of late Chief Ezekiel Hart and his order that such possession and control be given to the respondent by the delivery of the keys of the family house at Bonny and the family house known as No. 41, Creek Road, Port harcourt, the legal position is that the appellant, as from that time ceased to have right to be there without the permission and consent of the respondent. He therefore became a trespasser. In support of this submission learned counsel cited and relied on the case of Ikwunne Okagbue v. Romaine [1982] 5 S.C.133 at 148. He also submitted that the learned Judge, Okara, J., was perfectly right on 25th June, 1986 to have ordered that the appellant be committed to prison until he purged himself of the contempt by complying with the court’s order. He referred to section 71 of the Sheriff and Civil Process Law and further submitted that having regard to the wording of that section, it matters not whether or not, the order contained in the judgment is in the nature of an injunction, disobedience to it would attract the committal of the contemnor if contempt proceedings are initiated. He relied on paragraph 52 at page 33 of Halsbury’s Laws of England, Vol.9 and 4th Edition.

Contempt of court is either criminal or civil. It is criminal when it consists of interference with administration of law thus impeding and perverting the course of justice; it is civil when it consists of disobedience to the judgments, orders, or other processes of the court resulting or involving private injury.

The contempt committed by the appellant is civil contempt. It is very clear from the facts before the lower courts subsequent to the judgment of the trial court, the appellant, not only refused to comply with the judgment of the trial court but resorted to delaying tactics by worthless applications and baseless appeals.

Immediately after the judgment of the trial court, he and others lodged an appeal to the (Federal) Court of Appeal which was unanimously dismissed. Based on the dismissal of the appeal by the Court of Appeal on 29th November, 1984, the present appellant and 2 others filed an appeal dated 11th January, 1985, against the Court of Appeal judgment.

When the appellants failed to comply with the directives in the judgment of the Court of Appeal, the respondent, sometime in January 1985, started the proceedings for the committal of both the present appellant and the 1st defendant [who was the 1st appellant until he abandoned his appeal] by filing a notice as prescribed in Form 48 of the Sheriff and Civil Process Rules. In the ruling delivered by Okara, J. on 12th June, 1986, he found both the 1st defendant and the appellant guilty of contempt of court as complained of by the respondent and gave each one of them seven days within which to comply with the trial court’s orders, instead of committing them to prison. He adjourned the case to 25th June, 1986.

When the case came up on 25th June, 1986, it was reported to the court that the 1st defendant and the appellant did not comply with the court’s order of 7th June, 1986; he therefore committed them to prison.

On that same 25th June, 1986, the contemnors moved and argued an application that they had earlier filed for –

(1) Leave to appeal against the ruling of 12th June 1986 and

(2) Stay of execution of the order contained in (1) above, pending the determination of the appeal.

Prayer (2) of the motion was abandoned and struck out for its incompetence while prayer (1) was granted. At the request of learned counsel for the contemnors, the case was again adjourned to 1st July, 1986 for him to file fresh application for an interim stay of the court’s order of 25th June 1986 committing the contemnors to prison. This was granted. The application was argued on 2nd July, 1986 and same was dismissed on 7th July, 1986.The matter was further adjourned to 11th July, 1986.

Following a motion on notice dated 14th August, 1986, the Court of appeal on 27th October, 1986, made the following observation and order-

“As we cannot deal with the application this morning and having been informed that committal proceedings in the High Court have been adjourned to 30/10/86, it is desirable to make an interim order of stay. Interim order is hereby made pending the determination of the applications before this court. The motion is adjourned to 19th January, 1987.”

The motion was then adjourned to 19th January, 1987. By an application dated 17th February, 1987, the respondent prayed for the Court of Appeal to discharge the interim order of stay of execution made on 27th October, 1986 as from the record before this court, there was nothing positive done by the Court of Appeal since its adjournment of the application for a stay to 19th January, 1987 for substantive hearing. The parties then agreed to the hearing of the substantive appeal against the order of committal for contempt of court on 24th June, 1987.

Before this date and as I have mentioned earlier in this judgment, both contemnors have complied with the court’s order and that the 1st defendant had expressed his desire not to continue with the appeal as a result of which it was struck out.

In a well considered judgment by the Court of Appeal delivered on 24th June, 1987, it reviewed the whole events that happened in the case and dismissed the appeal as unmeritorious.

Myself, having gone through the record of proceedings, I find no alternative other than coming to the same conclusion as arrived at by the two lower courts.

Apart from the evidence led by the appellant, none of his witnesses supported his contention that No. 41, Creek Road being a family house left by the deceased, and the appellant, being one of the deceased’s sons, was entitled to occupy the rooms he was occupying. This being an issue of fact which needed to be proved was considered by the trial Judge [Pepple, J.] as against the other evidence adduced and he preferred the latter to the former; hence, his order that vacant possession of 41, Creek Road be given to the respondent.

It is to be noted that the appellant was joined in the suit as 2nd defendant on his own application and he fully participated in the proceedings up to the delivery of the judgment. And from the date the judgment was given, he was fully bound by it. When he refused to comply with it, he became a trespasser in No. 41, Creek Road, as regards the three rooms he continued to unlawfully occupy. He is neither an invitee nor a licencee in respect of the three rooms. The case cited by Mr. Chike Ofodile, S.A.N., of Ikwunne Okagbue v. Romaine [1982] S.C 133, particularly pages 144 -148 is apposite.

Learned counsel for the appellant tried, though woefully, to argue that as the judgment of the trial court did not specifically direct that the appellant vacate and give up possession of the three rooms at No. 41 Creek Road, there is no court order that the appellant has failed to comply with.

Section 71 of the Sheriff and Civil Process law, Cap. 118, Laws of Eastern Nigeria 1963 (applicable to Rivers State) provides that-

“71. If any person refuses or neglects to comply with the order made against him… the court …. may order that he be committed to prison and detained in custody until he has obeyed the order…”

The question to ask here is: did the judgment of the trial court contain an order affecting the appellant The answer is certainly in the affirmative as the learned trial Judge ordered that –

“(1) The plaintiff was entitled to the control and possession of all property real and personal, of Chief Ezekiel Hart (deceased) as the Chief or Head of the Ezekiel Hart House.

(2) The first defendant should deliver up to the plaintiff the keys of the Opuwari at Bonny and the house known as 41 Creek Road.”

In the judgment of the Court of Appeal and elaborating on the order supra, that court said –

“….the plaintiff is the recognized head of the house; it is, as accepted by the learned trial Judge, his entitlement to take possession of the family property. He cannot do it without the case.”

In the ruling of Okara, J., dated 12th June, 1986, he commented thus on the trial court orders, as affecting the appellant-

“The court found otherwise and declared that the plaintiff had the right to the possession of the property of the late Chief Ezekiel Hart including 41 Creek Road, Portharcourt, and ordered that the keys thereof as well be handed to him (plaintiff). This amounts to handing vacant possession of the house over to the plaintiff barring those lawfully living there before the death of Chief Ezekiel Hart. The effect of this is that the 2nd defendant had no right to be in occupation.”

This was affirmed by the Court of Appeal in its judgment of 16th December, 1987.

The principle enunciated in Doherty v. Doherty [1964] L.L.R. 226 as regards the interpretation of section 71 of the Sheriff and Civil Process Law (supra) restricting its application to the enforcement of mandatory orders only is no longer the law. See the lead reasons for judgment of this court in Osayande Uhunmwagho v F.I. Okojie & Anor. (1989) 5 N.W.L.R. (Pt.122) 471 by Nnamani, J.S.C, in which he reviewed the said principle and concluded-

“From all I have said, it follows that I do not endorse the restriction to mandatory orders which Doherty and Adebutu decided. I have not so far seen any judgments in other High Courts in Nigeria arriving at the same conclusion as the Lagos High Court appears to have done in Doherty and Adebutu. The relevant law in the Sheriffs and Civil Process Law, Laws of Eastern Nigeria, 1963 Cap. 118 is section 71. The rules are order 9 rule 13 of the Judgment (Enforcement) Rules made thereunder. Significantly, Forms 48 and 49 are the same as the Bendel State forms.”

It is contempt to disobey a judgment or order for the giving up of possession of land and such order can be enforced by means of committal. Where an individual is enjoined by an order of the court to do or to refrain from doing a particular act, he has a duty to carry out that order. The court has a duty to commit that individual for contempt of its orders where he deliberately fails to carry out such orders.

As O’Leary, J. (a Canadian Judge) put it in Canadian Metal Co. Ltd. v. Canadian Broadcasting Corp. (No.2) [1975] 48 D.L.R. (3d) 641 at 669-

“‘To allow court orders to be disobeyed would be to tread the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… If the remedies that the courts grant to correct wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result into the destruction of our society.’”

The appeal totally fails and it is dismissed. The decisions and orders of the lower courts are affirmed. N500.00 costs is awarded to the respondent against the appellant.

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SC.52/1983