Osayande Uhunmwagho Vs F I. Okojie (1988)
LawGlobal-Hub Lead Judgment Report
On 25th September, 1989, this appeal came before this Court. After hearing learned Counsel for both parties, and having read the record of proceedings, I was satisfied that the appeal had substantial merit and I allowed it. I indicated that I would give my reasons for that judgment today. I now give the reasons.
This matter was the aftermath of the judgment of this Court in Suit No. SC.43/81 delivered on 17th September, 1982. In the suit in the Bendel State High Court (Suit No. B/52/73) which led to the appeal in the Supreme Court, the appellant herein had sued the 1st respondent and 3 others for title to a piece of land in Benin City, damages for trespass and injunction. In its judgment of 17th September, 1982 which was in 1st respondent’s favour, the following relevant orders among others were made by the Supreme Court:-
“………2. That the plaintiff Osayande Uhunmwangho be hereby awarded a declaration of title under Bini Customary Law to the land situate, lying and being at Ward ‘A’ Aikhionbare Avenue, behind the Government Reservation Area, Benin City within The Benin Judicial Division, verged red on Survey Plan No. 4155 of 29th August, 1973…………
………… .4. That the defendants, their agents, servants or privies be hereby restrained from entering the land the subject matter of the suit.”
It must be pointed out that the 2nd respondent was not a party to Suit No.B/52/73. However, after the 1st respondent lost in Suit S043/81 as stated above, he claimed that he recovered the purchase price of the land in issue from the 2nd respondent and that he had handed back to him (i.e. 2nd respondent) the land the subject matter of the judgment of this court referred to above.
These averments were contained in paragraphs 5, 6, 15 and 16 of a counter-affidavit sworn to by the 1st respondent on 15th December, 1982 and in paragraph 11 of an affidavit sworn to by the 2nd respondent in Suit No. B/298/82. These counter-affidavit and affidavit were in answer to an application made by the appellant herein to the High Court of Justice Benin City.
The application dated 15th November, 1982 was made by the appellant’s then Solicitors praying the Principal Registrar of the High Court of Justice Benin City to issue and serve FORM 49 – “Notice to show cause why order of Attachment should not be made” – on the 1st defendant/Judgment Debtor/Respondent in this Suit, Mr. F. I. Okojie in accordance with the provisions of Order 9 rule 13(2) of the Judgment (Enforcement) Rule 1976, made under the Sheriffs and Civil Process Law, 1976.”
To this application was attached a 30 paragraph affidavit sworn to by appellant as well as Exhibits A – L including the order of the Supreme Court to which reference was made above. The application became necessary as appellant was of the view that the respondents were defying the order of injunction made by the Supreme Court in Suit SC/43/81.
This indeed was the beginning of the proceedings leading to the present appeal. Following this application the respondents filed several applications but the relevant one for our purpose here is that of 20th February, 1985. In that application, the respondents herein applied for “striking out/dismissing the application of plaintiff/respondent herein to commit the applicants by way of processes purportedly filed in this Honourable Court viz Form 48, Form 49, Application by way of affidavit filed on 6th April, 1983”.
6 grounds were given in support of the application. On 16th May, 1985, Gbemudu, J., after hearing the parties dismissed the application holding that it lacked merit. The respondents then appealed to the Court of Appeal. The Court, (Coram Omo Eboh, Ikwechegh and Ajose-Adeogun, (JJ.C.A.) allowed the appeal holding that the procedure adopted in the application against the respondents herein was wrong. The appellant then appealed to this Court. Three grounds of appeal were filed but I do not propose to set them down as the issues for determination, which I shall set down, clearly show the issues arising in the appeal. The issues for determination in appellant’s view were as follows:-
“1. Were the Justices of the Court of Appeal right to say that an order of the Supreme Court to wit:-
That the defendants, their agents, servants or privies be hereby restrained from entering the land the subject matter of this suit.”
is not one enforceable under Section 63 of the Sheriff and Civil Process Law Cap. 151 Laws of Bendel State by the procedure provided under Order 9, Rule 13 of the Judgment Enforcement Rules.
- Were the Justices of the Court of Appeal right in their view that Doherty v. Doherty decided that a restraining order of injunction cannot be enforced under Section 63 of the Sheriff and Civil Process Law and Order 9, Rule 13 of the Judgment Enforcement Rules made thereunder.
- Were the Justices of the Court of Appeal right in their view that in order to enforce a restraining order of injunction, resort must be had to the practice and procedure for enforcement applicable in England.”
The issues formulated in the briefs of argument of 1st and 2nd respondents are not different from those formulated by the appellant, although I shall show later that the 2nd respondent sought to raise issues which were not properly brought before this Court.
From all the issues formulated, the single matter for determination was whether committal proceedings could be initiated with Forms 48 and 49, or more directly, could a restraining order of injunction such as the Supreme Court made in SC/43/81, not being an order of mandatory injunction, be enforced under Section 63 of the Sheriffs and Civil Process Law Cap. 151 Laws of Bendel State and Order 9 Rule 13 of the Judgment Enforcement Rules made thereunder
The Court of Appeal, after referring to a number of authorities including R.A. Doherty v. T.A. Doherty (1964) Lagos High Court Reports 226 at 227 and K.A. Adebutu v. City Engineer Lagos City Council (1968) N.M.L.R. 133 to which I shall return later, answered the question in the negative. Ajose-Adeogun, J .C.A., concluded his lead judgment at page 663 of the record by saying that-
“That definition reads thus:-
Mandatory injunction, an injunction requiring the performance of some act e.g. the removal of a building or obstruction.
……… In the instant case, there is no doubt, going by the cases referred to above (Doherty’s and Adebutu’s) that the order sought to be enforced is not a mandatory one. Consequently, I am of the view that our own rules are not applicable.”
It might be better to start consideration of this matter by setting down the law and Rules involved in the appeal. Section 63 of Cap. 15 Laws of Bendel State, 1976 provides as follows:-
“If any person refuses or neglects to comply with the order made against him, other than for payment of money the Court instead of dealing with him as a judgment debtor guilty of misconduct defined in paragraph (f) of Section 37, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the Court thinks fit to obey the other parts of the Order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the Court directs.” (italics mine) Under the Judgments (Enforcement) Rules made pursuant to Cap. 151, Order 9, Rule 13 thereof provides as follows:-
“13(1) When an order enforceable by committal under Section 63 of the Law has been made the registrar shall, if the order was made in the absence of the Judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of any injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 48 and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.” (italics mine)
(2) If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in form 49 not less than two clear days after service of the endorsed copy of the order and the notice shall be served on the judgment debtor in like manner as a judgment summons.”
It is also useful to note the contents of Forms 48 and 49. Form 48 headed
“Notice of Consequences of Disobedience to Order of Court” says” Take notice that unless you obey the directions contained in the order you will be guilty of contempt of court and will be liable to be committed to prison.”
Form 49, on the other hand, is headed “Notice to show cause why order of attachment should not be made” and reads thus:-
“Take notice that the plaintiff (or defendant) will on………… the………..day of……….19…….at the hour of in the noon apply to this court for an order for your committal to prison (for having disobeyed the order of this Court made on……… 19……. enjoining and restraining you from (here set out the terms of injunction) (or for having neglected to obey the order made on the………day of……..19……requiring you to (here set out the mandatory part of the order)…….” (Italics mine).
I think for the purposes of this appeal one can accept the distinction which the Court of Appeal drew between restraining and mandatory injunctions and to agree further that the order in issue, i.e. the order of injunction made by the Supreme Court the disobedience of which led to the committal proceedings, is a restraining injunction. The question then is, having set down the terms of the Law, Rules and Forms above, is there anything in those provisions restricting their application to mandatory injunctions or excluding their application to restraining injunctions. I am afraid I completely agree with the submission of Mr. Okpoko, S.A.N., learned counsel to the appellant, that there are no such limitations or distinctions.
In Section 63 of Cap. 151 the operative word appears to be order made against him (such was made against the 1st respondent in SC/43/81). The only order excepted from the order to which Section 63 is applicable, is an order for the payment of money. That is not the order in this case. I have also adverted my mind to that part of Section 63 which says
“may order……….until he has obeyed the order in all things that are to be immediately performed”
which it was contended showed that what was in contemplation was a mandatory injunction or order – things to be performed. After looking at that Section very closely, I am of the view that “things to be performed” relate to the second order in that Section i.e. the order by the court to commit to prison until he has obeyed the order in all things to be performed. It does not qualify the order in Section 63 which is not hedged in any way, and from which only an order for payment of money is excepted. Again order 9, Rule 13(1) contains the important words…….”if the order……..is in the nature of any injunction” (italics mine). There is no distinction here between mandatory and restraining injunction. Rule 13(2) speaks simply of order. Again there is no distinction between restraining or mandatory order. The position is the same with Form 48 which simply refers to directions contained in this order. A look at Form 49 would suggest that the draftsman anticipated the sort of dispute which has arisen in this suit – that is the alleged distinction between restraining and mandatory injunctions when one has to apply the committal proceedings under Section 63 of the law. This is because Form provides for an order which has either nature. In one part the Form deals with “an order for your committal…….for having disobeyed the order of this Court……….enjoining and restraining you from………..terms of injunction.” In the other part it deals with “an order for your committal for having neglected to obey the order made…….requiring you to…….the mandatory part of the order.”
It seems quite clear that Form 49 would be used whether the order sought to be enforced was a restraining injunction or a mandatory one. Finally on this point, it is instructive to note the definition of order under the Sheriffs and Civil Process Law of Bendel State Cap. 151. Section 2 thereof defines order thus:
“Order includes an injunction, an order for the payment of costs by any party and an order for the payment of a counter-claim by a plaintiff.”
Once more, injunction does not distinguish between a restraining and a mandatory injunction.
It would appear that the Court of Appeal, in arriving at the conclusion that Section 63 was inapplicable as the order sought to be enforced was not a mandatory injunction, was persuaded by the decisions of the High Court in Doherty and Adebutu to which reference was made above. It would therefore be useful to look more closely at those two cases.
In Doherty (supra) Alexander, J. (as he was and of blessed memory) appeared to have accepted counsel’s submission that where the order in question “does not require the respondent to perform anything”, in other words, he is required “to desist or abstain from the performance” of certain things, then Section 72 is inapplicable. In such a case, it would mean that the procedure under Order 9, Rule 13 and Forms 48 and 49 would be inapplicable.
In Doherty’s case there was an application to commit the defendant to prison on the ground that he failed to obey an order of the court removing him from office of trustee of the trusts of the Will of J .H. Doherty (deceased). The order was brought under Section 72 of the Sheriffs and Civil Process Act and Order IX Rule 13 of the Judgments (Enforcement) Rules similar to the Law and Rules involved in the instant suit. The order in question read:
“That Theophillus Adebayo Doherty be and is hereby removed from the office of trustee of the trusts of the Will of J.H. Doherty (deceased).”
The learned Judge had constructed this order as meaning that in consequence of it, “the respondent is required to desist or abstain from the performance of the functions of the office of trustee and not to perform them.” Although he eventually struck out the application on the ground that it was not properly brought to the Court, he had earlier concluded, following his view on the proper interpretation of Section 72 of the Sheriffs and Civil Process Act and Order 9 Rule 13 of the Judgment Enforcement Rules, that “the formal order dated 13th December, 1963 (Exhibit D) which I accept as the relevant order in these proceedings is not a mandatory order and consequently cannot be enforced under Section 72 Sheriffs and Civil Process Act which provides for committal for neglect or refusal to obey a mandatory order.”
It is significant that the learned Judge was influenced by the words in Section 72 (as in Section 63 here). “Until the order has been obeyed in all things that are to be immediately performed” which I dealt with earlier in this judgment. Because of his view that the order must require the person to perform something, he even contended that there was a conflict between section 72 and Form 49 made under Order 9, rule 13 which is framed to be used to enforce both mandatory and prohibitive orders. With all due respect, there is no such conflict. As I said earlier on “in all things to be performed” refers to the second order in Section 72 (or Section 63 which is in issue here) and the relevant part of the Section is the first order of the Court which contains no distinction between mandatory or prohibitive orders. Section 72 on this interpretation is fully in line with the provisions of Form 49 made under Order 9 Rule 13.
The other case of Adebutu can be said to support the view that only mandatory injunctions can be enforced under Section 72 of the Sheriffs and Civil Process Act only by strong implication. The case was not decided on that issue, but the court did decide (Taylor, C.J. as he then was) that the order made on 20th March, 1967 is certainly not an order for payment of money, but an order made against the respondent commanding him to do a certain act or perform a quasi judicial act. It was held that it was therefore an order fully embraced by Section 72 of the Sheriffs and Civil Process Act. It was infact an order of Mandamus against the City Engineer. Having held that the order made was fully covered by Order 9, Rule 13, it was further held that Order 52 Rule 2 Supreme Court Rules (England) was not applicable. This was really the main decision of the Court.
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. In Godwin Onwuka v. Celestine Ubani and Ors. (1972) 2 E.C.S.L.R. 500 Nwokedi, J., was concerned with an order made in the following terms:-
“It is hereby ordered that the defendants from this day cease whatever they are doing on the disputed land. It is further ordered that copy of this order be pasted on the doors ofthe defendants.”
This was clearly a restraining injunction. Yet the learned trial Judge proceeded to commit the 3rd and 4th defendants to prison for contempt of that order. The application was brought under Section 71 of the Sheriffs and Civil Process Law and Order 9 Rule 13 of the Judgment Enforcement Rules.
In another Suit brought under the same law, Egbuna, J. declined to commit to prison as there was no proof that after the warning order the respondents disobeyed and entered the land. See Fabian Uzoeto and 2 Ors. vs. Friday Kanu and 1 Or. (1974) 4 E.C.S.L.R. 123. The order of the court was not set out but the application was to commit the respondents because they entered the land in dispute contrary to the order of the court. This was a restraining order. In none of these two cases was there any question of a distinction between mandatory and restraining injunctions.
The case of Ojomo v Ijeh (1987) 4 N.W.L.R. (Part 64) 216, 232 (C.A.) is equally instructive on the meaning of Section 54 of the Sheriffs and Civil Process Law of Western Nigeria and Order 9 Rule 13, Forms 40 and 41 of the Judgment Enforcement Rules made thereunder. These provisions are in pari materia with Order 9 Rule 13 and Section 63 of the Bendel State Law and Rules in the instant case. The order in Ojomo was one restraining both parties from performing the duties and responsibilities of the Executive of the U.I. Branch of the 2nd defendant Union.
Although the appeal turned on the failure of the applicants to prove that the respondents had done the acts after becoming aware of an order of court prohibiting such acts, the case is important because at no point was it considered by the High Court or the Court of Appeal whether the order was mandatory or restrictive. See also Achi-Kanu, J., in Chief A. I. Egbunike and 1 Or. VS. Bank of Credit and Commerce International Ltd. (1985) H.C.N.L.R. 76 and Odulami, J. (as he then was) in Eya v. Qudus (1985) H.C.N .L.R. 251 in which the order allegedly disobeyed was one restraining both parties from erecting any structure on the land. The relevant law was Cap. 118 Laws of Ogun State, Order 9 Rule 13 of the Judgment Enforcement Rules, and Forms 48 and 49. The application was only refused because there was no evidence of disobedience after the service of the Order.
I wish now to deal briefly with the application of the Rules of practice in England which the Court of Appeal held applicable in the instant case. Having really held that Section 63 and Order 9 Rule 13were applicable, it would have been unnecessary to embark on this journey particularly as Order 35 Rule 10 of the High Court Civil Procedure Rules made under Cap.65 Laws of Bendel State provides that “Where no other provision is made by these rules or by any other written law the Procedure and Practice in force for the time being in the High Court of England shall, so far as they can be conveniently applied, be in force in the court provided that no practice which is inconsistent with these rules shall be applied.”
There are Section 63 and Order 9 Rule 13 so no need for any recourse to English Rules. Besides, the Court of Appeal only had recourse to English Rules, because of the erroneous restriction of the meaning of Section 63. It is nevertheless necessary to point out that the analogous provision in the English Rules is Order 52 Rule 1 of the Rules of Practice in the High Court of Justice in England. See Supreme Court Practice 1979 Vol. 1 page 807 and flg.; Aguda – Practice and Procedure in the Supreme Court, Court of Appeal and High Courts of Nigeria. First Edition page 637 and fig. It is significant that among the types of conduct that would attract committal are:
(i) Disobedience to a judgment or order to do any act within a specified time. Such an order would include an order for mandatory injunction See R. v. Leicester Guardians (1898) 81 L.T. 559; R. v. Warcester Corporation (1903) 98 J.P. 139
(ii) Disobedience to a judgment or order to abstain from doing an act.
See Churchman v. Joint Shop Stewards Committee etc. (1972) 3 All E.R. 603 C.A.; Lenton v. Tregoning (1960) 1 All E.R. 717 C.A.
It remains for me to comment on the attempt of learned Counsel for the 2nd respondent to raise certain issues in the course of hearing of the appeal.
This was particularly in relation to the question of personal service. In his brief of argument on behalf of the 2nd respondent, Chief Odebola of counsel said,
“the 2nd respondent was on the 8th of May, 1989 granted leave by this honourable court to contend that the judgment of the Court of Appeal be affirmed on the following grounds:-
(i) The Court of Appeal was right in striking out the application of the plaintiff/appellant since Forms 48 and 49 were not served on respondents personally and or at all.
(1) the affidavit of service of the Bailiffs at page 672 and 673 of the Records of appeal show clearly that there was no personal service of Form 49 on the 1st respondent.
(2) The 2nd respondent was never a party to the proceedings in Suit No.B/52/73 in which injunction was granted against the first respondent and as such not possible to seek his committal to prison.”
We held that the 2nd respondent was privy to the 1st respondent in Suit B/52/73, but if the issue of personal service was properly before us it would have been a substantial point. It is well settled that motion and summons under Order 9, rule 13 and Forms 48 and 49 must be personally served. See Mander v Faleke (1891) 3 Ch. 488, Enabrhire and Anor v. Atamabo (1967) N.M.L.R. 253; O’Donovan v. O’Donovan (1955) 1 W.L.R. 1086 (for exception) and Ojomo’s case (supra).
As Mr. Okpoko rightly submitted, there was nothing on the record to show that there was indeed a third party notice to contend that the judgment of the Court of Appeal be affirmed on other grounds. I agree too that even if there was such a notice, the Court could not have taken it when the matter was not even considered by the Court of Appeal. If the 2nd respondent felt aggrieved about the failure of the Court of Appeal to consider this matter he should have cross-appealed. There was no cross-appeal. The matter of personal service, was raised in respondent’s ground 2 of grounds of appeal to the Court of Appeal but that Court based its decision on the procedural one of whether Section 63 applied at all. See on this matter of bringing a matter not dealt with by the Court of Appeal Abaye v Ofili and 1 Or. (1986) J.S.C. 231 at 256-257; (1986) 1 NWLR (Pt.15) 134.
It was for these reasons that I allowed the appeal and made the consequential orders as herein before mentioned.
Other Citation: (1988) LCN/2388(SC)