Sunday Ape V. Disu Olomo (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivered the Leading Judgment)

This appeal is against the Ruling of the High Court sitting at Ado-Ekiti, Ekiti State delivered by C. I. Akintayo, J. on the 10th day of August, 2007.

The Respondent herein was the Plaintiff in the trial court vide a writ of summons filed in 2004 in Suit No, HAD/3/2004 in which the claims against the Appellant as Defendant was for an order of perpetual injunction restraining the Defendant from encroaching into a parcel of land lying at Oke-Efon Iworoko Road, Ado-Ekiti.

The Appellant as Defendant counter claimed against the plaintiff and sought for an order of perpetual injunction in respect of the said parcel of land.

The parties each filed an application for an order of interlocutory injunction restraining each other, agents, assigns or privies from entering or doing anything on the land in dispute pending the determination of the substantive matter. In the Ruling delivered on the 2nd day of December, 2004, his Lordship A. S. Daramola, J. who heard the application restrained both parties, their agents, assigns or privies from further entering or doing anything on the land pending the determination of the substantive suit. :

The Respondent thereafter on 16th day of August, 2006 filed an application to show cause why the order of committal should not be made against the Appellant. In a similar application the Appellant commenced a contempt proceeding against the Respondent.

The Appellant in response to the Respondent’s application fifed a counter affidavit, further affidavit and better affidavit and additional further: affidavit against his committal for contempt. His Lordship, C. I. Akintayo, J. who subsequently heard the Respondent’s application held thus: “The Appellant has breached the order of the Court by selling part of the land to some individuals after the court order and encouraged them to continue development of such plot of land the disputed land. He is hereby found guilty of contempt of court’! (Pages 105-113) of the printed records) the Appellant was convicted accordingly, which gave rise to this appeal.

It was the contention of the Respondent that following his application for contempt against the Appellant filed on 16/3/06, hinged on the fact that since the restraint order against both parties not to enter the land in dispute, that the Appellant, his agents, servants and privies disobeyed the said order by selling portions of the disputed land to one I. D. Ehinafe, while the younger brother of the Appellant’s one Omolayo Ape also commenced building on the land.

On the part of the Appellant, he denied the depositions in the Respondent’s affidavit in support of the application for committal while the Appellant also denied breaching the order of injunction inspite of which he was committed for contempt and sentenced to a fine of N10,000.00 or one month imprisonment on 10/8/07 by the trial court, page 108 of the records.

The Appellant appealed against the above order and filed his Notice of Appeal dated and filed on 10/9/07 pursuant to the leave of the trial court of 4/9/07, containing ten (10) grounds of appeal from which three (3) issues were distilled for determination by this court. They are:-

“(1) Whether the trial court is possessed with requisite jurisdiction and or vires to entertain the Respondent’s matter having regard to the procedure by which the case was initiated. (Grounds 4, 5, 7, 8, 9 and 10).

(2) Whether the learned trial judge was right by his findings that the Appellant is guilty of contempt. (Grounds 1, 2,3, 5 and 5).

(3) Whether by the affidavit evidence and exhibits placed before the trial court the Respondent proved his case beyond reasonable doubt.” (Grounds 1, 21 31 5 and 6).”

When this appeal carne up for hearing on 4/10/10, from the Court’s records, the Respondent who had been served against the hearing, on 28/9/10 failed to appear in court and was not represented by counsel. The Appellant’s brief of argument prepared by A. T. Lawal Esq. dated 25th day of May, 2009, was deemed as property filed and served on 30/6/10, on application. On the same date, this court on a different application set down the appeal for hearing, the Respondent having failed to file any brief more than a year after being served with the Appellant’s brief of argument. This appeal was therefore heard based on the Appellant’s brief of argument alone.