Olufemi Odu V. Chief Tiamiyu Jolaoso & Ors (2002)

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AKINTAN, J.C.A.

The appellant, Olufemi Odu, had on 18/7/90 moved the Ota Chief Magistrate Court, Ota in Ogun State for permission to bury the corpse of his late father, Rabiu Odu, who died on 10/7/90 “in his house at Oke village, Ifo”. The motion was ex-parte and it was supported by a six paragraph affidavit in which the applicant did not disclose anything about land dispute or dispute over the place of burial of the corpse in the said village. The learned Presiding Senior Magistrate, having found that on the face of the application which was brought in compliance with the requirement of section 6 of the Burials Law of Ogun State, 1978 was in order, granted the request. The applicant thereafter went ahead by burying the said corpse in the house in question. The present respondents, on becoming aware of the matter filed a motion on notice before the same Ota Chief Magistrate Court. They prayed the court for an order setting aside its earlier order granting the appellant permission to bury the said corpse in the compound and for an order that the corpse buried there be exhumed.

Their application was supported with an affidavit in which they averred that the deceased and his children were not members of Oke village and that the deceased got to the village sometime in the 1960’s as a stranger. While in the village, the man was employed by the then Bale (the Chief of the village) as a farm-help who also allowed him (the deceased) and his other farm-helps to live in a building which belonged to the community. It was the said community building that the appellant got the court’s leave through an ex parte motion to bury his deceased father.

The learned presiding Chief Magistrate, having found that the earlier order was made without the appellant disclosing the correct facts, granted the prayer of the applicants (now respondents). He then set aside the earlier order and ordered that the corpse buried in the compound be exhumed. The appellant appealed to the High Court, Ota against the ruling of the learned Chief Magistrate and his appeal was dismissed. He also filed a further appeal to this court against the judgment of the High Court. But that appeal was abandoned.

The appellant failed to comply with the court order that his father’s corpse buried in the compound in question be exhumed.

The respondent then filed an application for the committal of the appellant for contempt. The application for committal was given Suit No. HCT/4A/91. It came up for hearing before Ogunlesi-Adio, J. At the hearing, the respondent raised a preliminary objection as to the competency of the application. A ruling on the objection was later delivered. The learned Judge found that the application was defective in that there was a failure to comply with the relevant rules of the court. The objection was therefore upheld and the application was struck out on 13/7/95 as being incompetent for “non-compliance with Order 9 rule 13(3)” of the High Court Rules of Ogun State.

The application for committal was renewed by the respondents.

This time, it was during the proceedings in an action instituted by the appellant before the High Court, Ota. His claim was, inter alia, for title to the land in respect of the building where he buried the corpse of his late father. The present respondents were also the defendant in that action which was given Suit No. HCT/11/94. The claim was before Jacobs, J., as he then was. The fresh application was filed before the said learned Judge.

When the matter came up before Jacobs, J. on 13/5/98, the proceedings for that day as contained on page 8 of the record is as follows:-

“Suit No. HCT/4A/91., Between:, O. Odu v. Chief T. Jolaoso & Ors.

Applicants are absent except 1st, 7th and 8th., Respondent is present, Jide Agbaje, Esq. appears for the respondent

E O. T. Akinbiyi, Esq. appears for the applicants (S. O. Dabo with him).

Mr. Agbaje says that he is not fit enough today to take the preliminary objection in the case. However, in the interim his client continues to remain in contempt of the court’s order. Mr. Agbaje asked for adjournment.

Court: This application is adjourned to 19/5/98. In the meantime, the contemnor is hereby granted bail in the sum of N50,000 with 2 sureties in N25, 000 each. Sureties to reside within jurisdiction and possess immovable assets. Where the contemnor fails to provide suitable sureties, he should be remanded in police custody till the next adjournment date which is 19th of May, 1998 which this application stands adjourned. Sgd. C. O. Jacobs Judge, 13/5/98.”