Salami Olufodun & Ors. V. Timothy Toye & Ors. (1972)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N.

This is an appeal from the judgment of the Western State Court of Appeal in suit No. CAW/45/70 delivered on 21st May, 1970, in which an order made by Abina J., at the Ijebu-Ode High Court committing the defendants to prison custody for contempt, was set aside and the defendants were discharged from the committal order.

The facts of this case are as follows. The plaintiffs instituted this action in a representative capacity against the defendants also in a representative capacity for the following claims:-

“1. Declaration of title according to native law and custom to all that piece or parcel of land at Ita Ale, Ago-Iwoye.

2. An order that the defendants/respondents shall remove the structure which they erected on the land in dispute in possession of the plaintiff.
3. Injunction restraining the defendants, their servants and/or agents, other Sango worshippers from further acts of trespass on the said land in dispute.”

The case was adjourned to 4th May, 1970 for mention after pleadings had been ordered. When, however, on 20th October, 1969, the plaintiffs discovered that the defendants by their servants and agents had commenced laying foundation for an extension of a mud structure standing at the entrance of their mosque on the land in dispute, they filed a motion for an interim injunction, supported by an affidavit. The defendants also filed a counter-affidavit. After due consideration, the learned judge, on 20th November, 1969, made the following order:-

“I order on this application that pending the determination of this case the defendants, their servants, agents or other Sango worshippers, which they represent are hereby restrained from further building or carrying out any further extension of their building on the land in dispute, the subject-matter of the action.”

It was when the defendants violated this order that they were brought to court for committal for contempt. The learned judge rejected the plea of the defendants that they were not the proper persons to have been sued, in these words:-

“They have been appearing in court as such. They made no protest in the proper manner and at the proper time that they were not competent to represent the class which it was sought to make them represent, or that for other reasons they were not the proper persons to be named as defendants in the action, in which case, they would have applied for the title of the writ to be amended in their favour. They did nothing of the kind. They appeared in court on the return day of the writ, not on protest, and pleadings were ordered. They defended the motion for interim injunction in that capacity also. An order was made against them. They cannot now with propriety say that they are not the proper persons to represent the class-the Sango worshippers, Ago-Iwoye. It is abundantly clear on the authority of the case of Bulai and anor. v. Omoyajowe (1958) N.M.L.R. page 160, that the defendants/respondents cannot at this stage repudiate the capacity they have accepted since the inception of the case and in which capacity they all swore to a counter-affidavit in the motion for interim injunction, claiming the land in dispute for the class they represent.”

The learned judge then made the following observation:-

“After a careful consideration of the affidavit and counter affidavit for and against this motion and sober reflection on the submission of learned counsel on both sides in a calm spirit, coupled with due regard to the events leading up to the making of the order of the 20th November, 1969, I am quite clear in my mind that the plaintiffs/ applicants in fact warned the defendants/respondents to desist from the step they were taking in relation to the violation of the said order, but the defendants/respondents despite the timely warning engaged workers, and through them deliberately flouted the order of court of the 20th November, 1969 in a rather contemptuous manner by doing exactly what they were prohibited to do.”

After weighing the evidence before him on the question as to whether to commit or merely to grant an injunction, the learned judge decided to commit all the four to prison for 14 days in the first instance for contempt of the order of 20th November, 1969 “until each of them is purged of his or her contempt.” This new order dated 26th March, 1970 was to be reviewed on 9th April, 1970. When the matter came up in due course on 9th April, 1970, and it was established that the order of 20th November, 1969 had still not been complied with, a further order was made against the defendants committing them to prison for an indefinite period. Against this order of 9th April, 1970 the defendants appealed to the Western State Court of Appeal on the following grounds:-

“1. That the learned trial judge based his ruling on the preliminary objections on irrelevant issues and misconception of law.

2. That the order is wrong in law as it is based on irregular process of law.
3. That the learned trial judge erred in law when he held that section 54 of the Sheriffs and Civil Process Law Cap. 116 and the Rules made thereunder are not applicable to the procedure in this matter.
4. That the order is unwarranted and unreasonable as the applicants did not prove the allegations against the respondents/ appellants in the strict sense of justice (strictissimi juris).
5. That there is a miscarriage of justice as the court rejected and/or did not consider the evidence adduced by the appellants on the process of reconciliation set in motion between the parties.”

Chief Okenla, learned counsel for the appellants, filed an application for an:-

(i) Order enlarging time within which an application for leave to appeal be brought.