➥ CASE SUMMARY OF:
H.R.H. Oba Ezekiel Ogunleye v. Prince Joshua O. Aina (2012) – CA
by “PipAr” Branham-Paul C. Chima.
Court of Appeal – CA/IL/22/2011
➥ JUDGEMENT DELIVERED ON:
Wednesday, the 14th day of March, 2012
➥ AREA(S) OF LAW
Contempt of court;
Obedience to court order.
➥ PRINCIPLES OF LAW
⦿ AFFIDAVIT NOT DENIED OR POSITIVELY CONTROVERTED IS DEEMED ADMITTED
The law is now quite clear on the fact that, an affidavit not denied or positively controverted, is deemed to be admitted by the adverse party. And to deny an affidavit, the adverse party does not have to speak in tongues or in subterfuge, as he is required to deny the averment frontally and positively, leaving the court or any reader of his denial not in doubt of his adverse position to the one advanced or canvassed in the supporting affidavit. See the case of Hon. Maryati Audu Dogan & Ors. vs. A.G. Taraba State, an unreported decision of this court in CA/J/243/2010, delivered on 25/5/2011, pages 35 – 36 thereof. It is settled law that an affidavit evidence constitutes evidence and any deposition not challenged is deemed admitted. H.S. Engineering Ltd. vs. A.S. Yakubu Ltd. (2002) 175 LRCN 134, ratio 2, Ajomale vs. Yaduat (1991) 5 SCNJ 178, Nzeribe vs. Dave Engineering Co. Ltd. (1994) 2 SCNJ 161; Oyewole vs. Akande (2009) All FWLR (Pt.491) 813. — I.G. Mbaba, JCA.
⦿ Generally, the law is on the side of the successful party, to assist him to reap the benefit(s) of the judgment. See NZERIBE V. DAVE ENGINEERING CO. LTD. (1994) 9 SCNJ 161. — I.G. Mbaba, JCA.
⦿ AS LONG AS A DECISION HAS NOT BEEN SET ASIDE, THE JUDGEMENT OF COURT MUST BE OBEYED
The point must be rammed home that an order issuing from any court, a fortiori an order of the Court of Appeal, the penultimate court in the judicial ladder, must be obeyed to the letters. It is of no moment that such order is wrongly made as long as it has not been set aside by an appellate court. Obedience to order of court is part and parcel of rule of law, which, in turn, is sina qua non for orderliness and development of democracy in any society. Contrariwise, disobedience of court order, as amply demonstrated by the respondent’s unrepentant conduct, is capable of igniting chaos and anarchy in any country. The respondent, erroneously, think that the court is a toothless bulldog which can bark without biting. By his aberrant desecration of the order of this court, made on 10/06/2010, he has insulted the law and he must incur its wrath. — O. Ogbuinya, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ita George Mbaba, J.C.A.
⦿ FOR THE APPELLANT
Y.A. Alajo Esq.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The Appellant, as Judgment/Creditor/Applicant at the Lower Court had taken out a motion against the Respondent (as Judgment Debtor/Respondent) under Section 287(2) of the 1999 Constitution; Order 47 Rule(1) of the Kwara State High (Civil Procedure) Rules, 2005; Section 72 of the Sheriffs and Civil Process Act, Cap. S26 LFN 2004; Order 9, Rule 13 of Judgment (Enforcement Procedure) Rules and Under the Inherent Jurisdiction of the Honourable Court, seeking the following: (1) An Order committing the judgment – Debtor/Respondent to prison for having disobeyed the Order of the Court of Appeal Ilorin Division, made on the 10th day of June, 2010 restraining him, among other things, from further parading himself as Eletan of Etan. And such further Order(s) as this Honourable Court may deem fit to make in the circumstances.
This is an appeal against the Ruling/Judgment of the High Court of Kwara State, delivered by Hon. Justice, A.S. Oyinloye on the 3rd day of December, 2010, wherein the learned trial judge declined jurisdiction on the premise that the nature of the case of the plaintiff as well as the method adopted in the initiation of the case did not vest the Court with jurisdiction. The Lower Court had, however, considered the case on the merit before dismissing it, when the court said: “In the final analysis and on the merits of this case, I am convinced that the Respondent is not exposed or amendable to the Order of Committal sought vide this Application, I return ‘NO’ as an answer to question earlier on raised by this Noble Court in this Ruling. I refuse to make the Order of Committal, the Application on the merits fails and same is accordingly dismissed.” (Page 379 of the Record).
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Trial Court was not wrong in declining jurisdiction, having regard to the procedure adopted in the initiation of the Committal proceedings?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE LOWER COURT HAS JURISDICTION, AND CAN ENTERTAIN SUITS BROUGHT BY MOTION
“It must be stated that section 287(2) of the 1999 Constitution, as amended, section 72 of the Sheriffs and Civil Process Act and Order 9 Rule 13 of the Judgment (Enforcement) Rules and even the inherent jurisdiction of the court, pursuant to section 6(6) of the 1999 Constitution (as amended), clearly vest every court of record with jurisdiction to hear and determine applications relating to contempt proceedings, to protect and enforce the Judgments and orders of superior courts. There cannot be any question as to the procedure used by the Appellant to seek the enforcement of the Orders of this court embodied in Exhibit EA01 and in the enrolled order (Exhibit EA04A), that is, by Motion on Notice, after the issuance service and of Forms 48 and 49 on the respondent, warning the same of the consequences of disobedience to valid subsisting court order. This is because, the provisions of Order 47 Rule 2(1) of the Kwara State High Court (Civil Procedure) Rules, 2005, is quite explicit on the process and procedure to be adopted to seek the committal of a contemnor. It says:- “An application for an order of committal shall be made to the court by motion on notice stating the grounds of the application supported by an affidavit and a written address.””
II. Whether the trial Court was not wrong in failing to commit the Respondent to prison, considering the affidavit evidence and the exhibits attached therewith?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE TRIAL JUDGE WAS IN GRAVE ERROR FOR NOT COMMITTING THE RESPONDENT TO PRISON
“I think the learned trial judge was in a deep and grave error by so holding and he was, in fact, working against the law, granting the Respondent judicial licence to tear the judgment of this court into pieces, that is, Exhibit EA01 and the enrolled Order thereof (Exhibit EA04A) served on him along with form 48, and to defecate on the Order. No wonder then the Respondent would not even deem it necessary to pursue any appeal against the judgment of this court, or to contest this appeal! Even when the Respondent did not appeal the judgment of this court (and has still not appealed), the learned trial judge held that he (Respondent) did not sleep over his right of appeal, simply because he brought a belated motion for extension of time and for leave to appeal, which he was not even committed to prosecute! And while pretending to be seeking leave to appeal, he was busy performing the office of Eletan of Etan, holding the decision of this court in utter contempt and derision, as he had personally annulled the court decision in his world, ever before pretending to be seeking a stay of the same by the Supreme Court! The learned trial judge therefore dealt serious blow on the integrity of the judgment of this court and on the judicial process, when he held that ‘a party will not be held for contempt merely because he has not obeyed the order of which he is appealing against or which he wants stayed or suspended pending appeal.’ That would mean that the moment a party is not happy with the decision of a court, the party can ignore that decision act against it and do as he wishes, especially if he appeals or wants to appeal against the decision! That can only obtain in and befall decisions reached in beer-parlours and other unserious social organizations, NOT a COURT OF LAW! A court will cease to be one, to suffer such indignities! A court’s decision has to be obeyed and/or enforced, at the pains of sanction against disobedience. See Odogwu vs. Odogwu (1992) 2 NWLR (Pt.225) 539; Labour Party vs. INEC (supra) holding 8. “An order of court must be obeyed by all concerned until it is set aside by a competent court notwithstanding that the order is perverse. The position of the law cannot be said to be recondite, concerning the position of an appellant, who is appealing against a decision or order of court for which he is cited for contempt. In that case the contempt proceeding may abate while the appeal against the judgment is yet to be disposed of. See the case of Odogwu vs. Odogwu (supra) “On when a person in disobedience of court order can be heard. The common law rule precluding persons in disobedience of the orders of Court against them from being heard in respect of the matters which they stand in disobedience permits of an exception where the order disobeyed was made without jurisdiction, or where the party in disobedience is challenging the validity of the order.”
“The issues are therefore resolved in favour of the Appellant. This appeal, therefore, succeeds, and I set aside the Ruling of the learned trial court in the suit No. KWS/41M/2010. In its place, pursuant to Order 4 Rule 4 of the Court of Appeal Rules 2011, I hold that the Application of the Judgment Creditor/Applicant is meritorious and should be granted. It is accordingly granted and the Respondent, Prince Joshua O. Aina, is hereby held for flagrant disobedience of the subsisting order of this court in Exhibit EA01 and EA04A. He is, accordingly, committed for contempt and hereby sent to prison, where he shall remain for a period of three (3) months, or until he purges himself of the contempt.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 72 of the Sheriffs and Civil Process Act, Cap. 56 LFN, 2004;
Order 47 Rule 1(1) of the Kwara State High Court (Civil Procedure) Rules, 2005;
Order 9 Rule 13 of the Judgment (Enforcement) Rules.
➥ REFERENCED (CASE)
⦿ TO ESTABLISH CONTEMPT OF BREACH OF AN ORDER OF INJUNCTION
In Onagoruwa vs. Adeniju (1999) 5 NWLR (PT.293) 317, wherein, my lord, Niki Tobi JCA (as he then was) stated what must be proved in contempt application, thus: “To establish contempt of breach of an order of injunction the following elements must be established: 1. The terms of the injunction must be clear and unambiguous; 2. It must be proved that the defendant had had proper notice of the terms of the injunction; 3. There must be a positive proof that the terms of the injunction have been broken.”
➥ REFERENCED (OTHERS)