Pius Adaka & Ors V. Christopher Anekwe & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

This is an appeal from the decision of the Court of Appeal, Port-Harcourt Division delivered on 9th day of April, 1997. In the trial court, High Court of Justice Orlu, the respondents commenced committal proceedings against the appellants for disobedience to the terms of settlement agreed to between the parties and made an order and judgment of the Supreme Court. The appellants raised a preliminary objection to the application for the alleged contempt. The trial court heard counsel for the parties on the objection and in a considered ruling delivered on 9th March, 1988, the learned trial Judge, Ononuju, J. overruled the preliminary objection and ordered that the contempt application be heard on its own merit. Against this order, the appellants appealed to the Court of Appeal which also dismissed the appeal and remitted the committal application to the trial court for hearing on the merits. The applicants then appealed here.

For a clear understanding of the circumstances giving rise to this appeal, it appears to me worthwhile to state albeit briefly the facts involved.

The respondents who were plaintiffs in the trial Orlu High Court, instituted suit no. HOR/8/74 against the 1st – 5th appellants for and on behalf of their family for damages for trespass and injunction. Both the appellants and the respondents conducted the case in representative capacity for and on behalf of their respective families. At the end of the case, the trial court entered judgment for the respondents and the appellants appealed to the Court of Appeal Enugu in appeal no. FCA/E/130/80. The Court of Appeal allowed the appeal, set aside the decision of the trial court and dismissed the respondents claim. The respondents appealed to the Supreme Court in appeal no.60/1983 but the parties settled their disputes out of court and drew up the terms of settlement which became the order and judgment of the Supreme Court in the case. For the avoidance of doubt and for clear understanding of the situation the terms of settlement and the order of the court are set out below :-

Terms of Settlement

“It is agreed between the parties that for the judgment of the Court of Appeal, the Supreme Court should substitute the following:

An order of injunction restraining the defendants/respondents, their agents and assigns from destroying economic trees or damaging crops or from removing sand, gravel and stones and from erecting new building outside the compounds occupied by them on the land in dispute verged pink in exhibit “A” – plan no MEC/18/97.

Dated this 31st day of October, 1984″.

Order of court

“It is ordered

1. that the parties to this appeal having settled the matter in dispute out of court, and filed terms of settlement in this court, the judgment of the Court of Appeal be set aside;
2. that in its stead, judgment be entered for the appellants in terms of the settlement filed to wit;
3. that there be an injunction restraining the defendants/respondents, their agents and assigns from destroying economic trees or damaging crops or removing sand, gravel and stones and from erecting new buildings outside the compounds occupied by them on the land in dispute verged pink in exhibit “A” plan no MEC/18/97 and;
4. that there be no order as to costs”.

Thereafter there was an alleged disobedience of the order by the appellants. As a result, the respondents filed an application for contempt proceedings against the appellants. With the assistance of the chief registrar of the High Court Orlu, the respondents issued form 48 titled “Notice of consequences of disobedience to order of court” to the first five (5) appellants who, originally represented the Emehaba family in the suit no. HOR/8/74 and 20 other persons who are members of the Emehaba family but were not named as defendants in the said suit. Later, all the appellants were also served with form 49 without any orders of the trial court.

The application then came up for hearing before the trial court and all the appellants served with forms 48 and 49 took preliminary objection as to the competence of the committal proceedings. The learned trial Judge, after hearing the parties on the objection ruled that the application was competent and ordered that it be heard on its merits. These briefly are the facts involved.

The appellants identified in their joint brief the following as the issues for determination in this appeal. They are:-

1. Whether the Court of Appeal was right in holding that the Supreme Court had by its decision in Osayande Uhunnwangho v. P.I. Okojie & another (1989) 5 NWLR (Pt. 122) 471 changed the law as to the enforcement of mandatory and restrictive injunctions and in failing to apply the said decision to the present matter so as to hold that foreign rules of court were not applicable to this matter
2. Whether the Court of Appeal was right in holding that order 42 rule 7 of the rules of the Supreme Court of England 1956 was applicable to the application for committal before the trial court in this matter by virtue of section 16 of the High Court Law of Eastern Nigeria, 1963 and in ordering the remittal of the application for the trial court of hearing on the merits under the said foreign court rules
3. Whether the Court of Appeal was right in holding that the leave of the trial court was not required before commencing committal proceedings against the 5th-24th appellants who were not named defendants in suit no. HOR/8/74
4. Whether the Court of Appeal was right in holding that the appellants abandoned their ground of objection in the trial court and raised new issues before it”.

The respondents in their joint brief also adopted the issues identified by the appellants as those arising for determination in this appeal.