3PLR – MATHEW OMONIYI IDOWU V. IDOWU SANUSI OLORUNFEMI & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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MATHEW OMONIYI IDOWU

V.

IDOWU SANUSI OLORUNFEMI & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 12TH DAY OF APRIL, 2013

CA/L/458/2010

LN-e-LR/2013/107

                                                                                                                    

                                                                                                                     OTHER CITATIONS

(2013) LPELR-20728(CA)

BEFORE THEIR LORDSHIPS

AMINA ADAMU AUGIE, JCA

CHIMA CENTUS NWEZE, JCA

CHINWE EUGENIA IYIZOBA, JCA

 

BETWEEN

MATHEW OMONIYI IDOWU – Appellant(s)

AND

1. IDOWU SANUSI OLORUNFEMI
2. AMUDA YUSUF OGUNLAYE
3. SAULA AMUSA – Respondent(s)

 

REPRESENTATION

1. M. Kareem, Esq., – For Appellant

AND

Adebayo Oyagbola, Esq., with O. M. Giwah, Esq. – For Respondent

 

ORIGINATING STATE

Lagos State: High Court (Ipaye, J- Presiding)

 

MAIN ISSUES

EMPLOYMENT AND LABOUR LAW – SERVANT:- Meaning – Person employed by another to do work under the control and direction of the employer – Whether term has a broad significance, and embraces all persons of rank or position who ore in the employ, and subject to the direction or control of another in any department or labor or business – Whether synonymous with the term “employee”

COMMERCIAL LAW – AGENCY:– Definition and Nature of – Basis of the law of agency – Acknowledgement that a person need not always do things that change his legal relations in person, and that he may use the services of another person to change them or to do something during the course of which they may be changed – How created – Effect – Whether it is only when such representation or actions on another’s behalf affects the latter’s legal position or rights and liabilities towards other people, that the law of agency applies – Whether the law of agency has no relevance to social or other non-legal obligations

PUBLIC LAW AND JURISPRUDENCE– CONTEMPT OF COURT: Alleged act of contempt ex-facie curiae – How proved – Essentials – Need to establish that there was a subsisting and valid order of court prohibiting the alleged contemnors from doing certain things; that the alleged contemnors violated the said order; that the alleged contemnors, deliberately, violated the said order and with guilty mind – Need for requirements to be proved cumulatively – Standards, Onus and burden of proof – On whom lies

PRACTICE AND PROCEDURE – APPEAL – APPEAL AGAINST THE LOWER COURT’S DECISION:- Meaning – Invitation to a higher court to review a lower court’s decision to see whether on the proper consideration of the facts and the applicable law, that court arrived at a correct decision – Effect

PRACTICE AND PROCEDURE – COURT – CONTEMPT OF COURT: Criminal contempt of Court – Standard of proof – Whether beyond reasonable doubt

PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL:- Need for a ground of appeal to be based against a ratio and not against an obiter

PRACTICE AND PROCEDURE – WITNESS:- Meaning – Strict legal sense and general sense – Effect

WORDS AND PHRASES – “OBITER DICTUM” – “RATIO DECIDENDI” – “SERVANT” – “WITNESS”:- Meaning thereof

 

 

 

MAIN JUDGMENT

AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment):

This appeal relates to the contempt proceedings against the Respondents for violating Orders made by the Lagos State High Court in Suit No. ID/191/92, wherein the Appellant as Plaintiff, sued one Mrs. V. O. K. Momodu, claiming

(a)     A declaration that the Plaintiff is the Legal Owner of the THREE (3) PLOTS of land situate tying and being at Akesan Town which property is situate along Akesan Road, Akesan, Lagos State, covered by Certificate of No: 77/77/1990C, dated 16th February, 1990 measuring 2057.130, square meters.

(b)     A declaration that the entry of the property described above by the Defendant is wrongful, unlawful and mounted to act of Trespass of the same.

(c)     An order perpetual injunction restraining the Defendant whether by herself, agents and/or servants from committing further act of trespass on the said property.

 

To prove his claim, the Appellant called 3 Witnesses, and tendered 12 Exhibits. Mrs. V.O.K Momodu called 4 witnesses including the 1st Respondent as DW3, and tendered documentary evidence, including Exhibits D4 and D7 – copies of the judgment of the Supreme Court delivered in Appeal No. SC.13/1993 – Gbadamosi Sanusi Olorunfemi & Ors V. Rafiu Asho & Ors, wherein the Supreme Court held that Olorunfemi Family were owners of a disputed land.

 

At the address stage in that Suit No.ID/191/92, the learned trial Judge, Kasali, J., ordered parties to submit Supplementary Address on the issue of the Supreme Court Judgment in Appeal No. SC.131/1993. Both parties addressed the Court, and in his Judgment delivered on 24/2/2005, Kasali, J., held thus –

“…On the face of these two Judgment, there is nothing to show that the land in dispute in the instant case is the some land in which Judgment of the Supreme Court i.e. Exhibit “D4” & “D7” was relate (sic), that is to say nothing in the two Judgments that indicate that the land in dispute was the same land litigated upon before the trial Judge, Onalaja J, which went before the Court of Appeal and subsequently to the Supreme Court …Tendering of Exhibit “D4” & “D7″ without more is not a conclusion evidence that the land in dispute in those two judgment of the Supreme Court is the some in the present suit, The parties in this suit are not parties in the suit that gave birth to Exhibit D4 & D7. The Defendant did not place sufficient material before this Court to establish the Judgment of the Supreme Court in Exhibit D4 & D7 relate to the same land in dispute before this Court. This Court is not in a position to speculate in the absence of any sufficient material placed before it. From the pleading of both parties and from the totality of the evidence adduced by witnesses on both side, it is obvious that the identity of the land in this case is in dispute. I therefore hold that the land, litigated upon that resulted into Exhibit D4 & D7 is not the same as the land in dispute in this case”.

 

He concluded as follows at pages 59 – 60 of the Record of Appeal-

“…The Claimant’s claim succeeds and the Defendant’s Counter-Claim is dismissed-

(1)     I hereby make a declaration that the Claimant is the legal owner of Three (3) Plots of land situate, lying and being at Akesan Town which property is situate along Akesan Road, Akesan Lagos State covered by Certificate of Occupancy No: 77/77/1990C, dated 16th February, 1990 measuring 2057.130, sq. meters.

(2)     I also declare that the entry of the property aforementioned above by the Defendant is wrongful, unlawful and amount to act of trespass of same.

(3)     I also award in the claimant’s favour an order of perpetual injunction restraining the defendant whether by herself, agent and or servant from committing further act of trespass on the said property.
Cost of N20, 000.00 is awarded in favour of the claimant”.

 

The Defendant, Mrs. V. O. K. Momodu, did not appeal against the decision, however, relying on the Supreme Court Judgment in Appeal No. SC.13/1993, the Respondents, who were not parties to the Suit, went on to the said land.
The Appellant then issued a Notice in Form 49 [NOTICE OF CONSEQUENCE OF DISOBEDIENCE OF ORDER JUDGMENT OF COURT] against the Respondents.
When they persisted, he took out a Notice in Form 49 [NOTICE TO SHOW CAUSE WHY ORDER OF COMMITTAL SHOULD NOT BE MADE] dated 30/5/2008.
The Notice in Form 49 is supported by a 23 – Paragraph Affidavit, and 7 Exhibits including the judgment of Kasali, J., in Suit No. ID/191/92, as Exhibit.
The Appellant himself averred as follows in paragraph 16 -22 of his Affidavit –

16. All the Respondents are lawless persons and have no regard for Constituted Authority.
17. The Respondents ore all aware that there is a subsisting judgment in my favour to which there was no appeal.
18. The first Respondent was s witness in this Suit; he gave evidence as DW3 and he is the present head of Olorunfemi Family of Akesan.
19. The Respondents claimed that they derived their Title from Mrs V. O. K. Momodu, the Defendant in the Suit.
20. I contacted Mrs Momodu and she told me and I verily believe her that she does not know the Respondents and she did not put them in possession.
21. Mrs Momodu further told me that since the delivery of the Judgment, she has nothing to do with my land.
22. Unless the order is granted, the Judgment which I got after being in Court for 13 years (1992 – 2005) will be in vain.

 

The Respondents filed a 9-paragraph “Counter-Affidavit to Form 49” with four annexures, including the Supreme Court Judgment as Exhibit S1, and the 1st Respondent averred in paragraph 4 of the Counter-Affidavit that the land on which they are said to have violated the Order of Court belongs to his family, and that the “ownership thereof was confirmed by the Supreme Court in the judgment in Appeal No. SC.13/93”. He further averred in paragraphs 7 and 8 –

7. That none of the alleged Contemnors was a party to the Suit between the parties herein and the Claimant was aware of the case between his predecessors in title and the Olorunfemi Family.
8. That I and the other alleged Contemnors are on the land on which our family was adjudged to be owners thereon by the Supreme Court of Nigeria.

 

The Respondents protested that since the said committal was in respect of the Judgment of Kasali, J., the case should be transferred to another Judge, thus, the Contempt Application was re-assigned to Ipaye, J. After hearing arguments on the matter, Ipaye, J. delivered Judgment on 30/9/2009, wherein he held –

“… I am persuaded that contempt proceedings in the manner initiated by the Applicant ought not to be used or deployed as an instrument for seeking the enforcement of the subsisting judgment of this – Court as in Exhibit A and I so hold.

… This Court is persuaded that the alleged contemnors cannot be condemned in the manner sought by the Applicant. The Application is therefore dismissed…”.

 

Dissatisfied with the above decision of Ipaye, J., the Appellant filed a Notice of Appeal containing three Grounds of Appeal in this Court. Briefs of Argument were duly filed, and in the Appellant’s Brief prepared by Mrs. R. Lawal-Akapo, it was submitted that the issues that call for determination in this appeal are –

(1)     Whether or not the Respondents cannot be found liable for contempt simply because they were not parties to Suit No: ID/191/92 (MATHEW OMONIYI IDOWU VS. V.O.K. MOMODU).

(2)     Whether or not the trial judge was right in discharging the Respondents on the basis of the Supreme Court decision in Suit No: SC.13/1993.

(3)     Whether or not the trial Court would have arrived at a different decision if consideration had been given to the Appellant’s Counsels’ submission to the effect that English decisions are no longer binding on Nigeria Courts.

 

The Respondents, however, submitted in their Brief of Argument prepared by R.O. Alli, Esq., that the first issue that stands out from Grounds 1 and 2 of the Notice of Appeal is – “Whether a non-party to a suit can be liable in contempt”, and they adopted the Appellant’s issue 3 as their 2nd issue for determination.
Obviously, the Respondents’ first issue is more to the point than that of the Appellant, and it also captures the essence of the complaint in this appeal.
However, I need to address the other two issues formulated by the Appellant.
issue 3 relates to the English decisions cited by O. Ayanlaja Esq. SAN, learned senior Counsel for the Respondents, in their Written Address wherein it was argued that the Court cannot make an order against a non-party, citing Brydges V. Brydges and Wood (1909) P. 187 and Marengo v. Daily Sketch & Sunday Graphic Ltd. (1948) l All E. R. 406. When the matter came up on 6/7/2009, learned counsel for the Appellant, Mrs. Rolake Akapo, argued that “English decisions are merely persuasive authorities” and referred the Court to  the case of Eliochin (Nig.) Ltd. V. Victor Mbadiwe (1986) 1 NWLR (Pt. 14) 47.

 

The Appellant’s contention in this appeal is that this submission was not considered by Ipaye, J., and that he “would have come to a different decision by convicting the Respondents if he had considered the above submission”.
On their part, the Respondents referred us to Lijadu V. Lijadu (1991) 1 NWLR (Pt. 159) 627 and Okon V. The State (1998) 1 NWLR (69) 172, and submitted that English decisions are of persuasive authority to Nigerian Courts; that after considering the raison d’etre for contempt proceedings, Ipaye, J., came to a final conclusion that a person who is not a party to the suit cannot be made liable in contempt; and that his conclusion was not borne out of the decision submitted to the Court by their counsel but it represents the altruistic position of the law on the practice and procedure of law of contempt globally.

 

There is no need to beat about the bush, it is clear from the Judgment appealed against that Ipaye, J., did not rely on the said English cases. He said –

“In his address, learned silk referred to the cases of Brydges V. Brydges and Wood and Marengo V. Daily Sketch & Sunday Graphic Ltd…This suit has had a long and chequered history having been initiated by the Applicant on 27/06/92 vide a writ and statement of claim sealed on the same date … The suit went to trial and judgment was delivered in favour of the Claimant/Applicant … by this Hon. Court Coram my learned brother Hon. Justice I.O. Kasali (Mrs.) … It is not in contention that the alleged contemnors were not a party to the dispute in Suit No: ID/191/92. It is equally not in contention that the alleged contemnors were Defendants in Suit No: ID/505/85 which eventually terminated in the Supreme Court as SC.13/93 … It is equally not in contention … that ownership of the land presently occupied by the alleged contemnors was ascribed to them by the highest Court in the land. It cannot be over emphasized that contempt proceedings are quasi criminal in nature and ought to be used sparingly by the Court since it is trite that a court of law does not exist solely to punish an erring party but to ensure that justice is done on the merits of the case. The raison d’etre for contempt proceedings is because it is the plain and ungratified obligation of every person against or in of whom an order is made to obey same unless and until the said order is discharged. It is equally trite that where the person affected by the order believes to be irregular or void so long as it exist such order has to be obeyed to the letter. See: MOBIL OIL NIGERIA LTD. Vs. ASSAN (1995) 8 NWLR (PT. 412) @ 129; ODU VS. JOHNSON (2005) 16 NWLR (Pt. 950) @ 178 … Nevertheless, it is trite that a person is not bound by an order or judgment of a court law where such person has not been made a party to the suit culminating in the said order or judgment. Although the 1st contemnor was a witness for the defendant/judgment debtor in Suit No: ID/191/92 none of the alleged contemnors have been shown to be a party in Suit No: ID/191/92 and I so hold.

… I am persuaded that contempt proceedings in the manner initiated by the applicant ought not to be used or deployed as an instrument for seeking the enforcement of the subsisting judgment of this Honourable Court as in Exhibit A and I so hold… for the all the reasons articulated above this Court is persuaded that the alleged contemnors cannot be condemned in the manner sought by the Applicant”.

 

An appeal is an invitation to a higher court to review a lower court’s decision to see whether on the proper consideration of the facts and the applicable law, that court arrived at a correct decision – see Oredeyinm v. Arowolo (1989) 4 NWLR (Pt.114) 172. In this case, Ipaye, J., merely said that in his address, “learned silk referred to the cases of Brydges v. Brydges and Wood (1909) P. 187 and Marengo V. Daily Sketch & Sunday Graphic Ltd (1948) 1 All ER @ 406”.

 

There is nowhere in his reasoning or conclusion where he said he was relying on the said English cases or referred to any foreign authorities for that matter. Obviously, there is nothing before us on which to act or invoke our jurisdiction to consider the issue of whether Ipaye, J., “would have arrived at a different decision if consideration had been given to the Appellant counsel’s submission to the effect that English Decisions are no longer binding on Nigerian courts”.

 

The Appellant also complained about the aspect of Ipaye, J.’s Judgment that touches on the decision of the Supreme Court in Appeal No. SC.13/1993.
He contends that Ipaye, J., erred in relying on the Supreme Court Judgment that Kasali, J., held is not relevant to the claim in dispute in Suit No. ID/191/92.
The Respondents did not address this issue in their brief. I do agree with the Appellant that Ipaye, J., should not have used the Supreme court Judgment to counter what Kasali, J., had said, but his comment is nothing but an obiter, and an appeal is usually against a ratio and not against an obiter – see N.D.I.C. V. Okem Ent. Ltd. (2004) 10 NWLR (pt.880) 107 SC. “Obiter dictum” is Latin for “something said in passing”. It is “a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)”, and it also means “a remark made or an opinion expressed by a Judge, in his decision upon a cause, “by the way” that is, incidentally or collaterally, and not directly upon the question before the Court” – see Black’s Law Dictionary: 9th Ed.
“Ratio Decidendi”, is Latin for “the reason for deciding”. It is the “principle or rule of law on which a Court’s decision is founded; the rule of law on which a later Court thinks that a previous Court founded its decision” – see Black’s Law Dictionary: 9th Ed. In this case, Ipaye, J. concluded as follows-

“It is trite that a person is not bound by an order or judgment of a Court law where such person has not been made a party to the suit culminating in the said order or judgment, Although the 1st contemnor was a witness for the defendant/judgment debtor in Suit No: ID/191/92 none of the alleged contemnors have been shown to be a party in Suit No: ID/191/92 and I so hold. In addition, it is instructive to note that the highest court in the land in her decision in Suit No: SC.13/93 tendered as Exhibit S1 has upheld the rights of the alleged contemnors to be on the property covered by the survey plan tendered as Exhibit S2. This Court by the well-known doctrine of stare decisis lacks the power to hold otherwise”.

 

His reason for deciding is clear – the Respondents were not liable for contempt because they were not parties in Suit No. ID/191/92, and the use of the words “in addition, it is instructive to note” shows that his comment about the said decision of the Supreme Court and the rights of the Respondents over the land was made by the way, and not directly upon the question before the Court.
Kasali, J., had granted an order of perpetual injunction restraining “Mrs. V.O.K. Momodu” whether “by herself, agent and or servant from committing further act of trespass on the said property”. The Respondents went onto the land, which led to the issuance of Notices in Form 48 and Form 49 by the Appellant, and the contempt proceedings against them that culminated in this appeal.

 

The Appellant pointed out in his brief that learned senior counsel for the Respondents protested about Kasali, J., handling the proceedings, and the case was then re-assigned to Ipaye, J., “for argument on the contempt Application”.
So, Ipaye, J., was only required to look into whether the Respondents violated the orders made by Kasali, J., or not – that was the question before him, and since this Court is only concerned with his decision or answer to that question, his comment about the Supreme Court decision and ownership of the land is a mere obiter, which is not appealable, and cannot be the subject of this appeal.
We now come to the big ONE – the meat of the matter in this appeal, and that is whether Ipaye, J., was right to hold that the Respondents cannot be liable for contempt since they were not parties to the said suit No. ID/191/92.

 

The Appellant’s contention is that they are guilty of the said contempt because they are agents of Mrs. V. O. K. Momodu, the Defendant in the suit. He submitted that where the order made is directed at a party, his servants, Agents or privies, it is enforceable against the actual party, his servants, agents or privies even though the Agents are not actually before the court; that the Respondents did not deny the averment in paragraph 19 of his Affidavit, and the law is that the averment that they are Agents of Mrs. Momodu is admitted, citing Agbaje v. Ibru Seafoods Ltd. (1972) 5 SC 50, Ajomale v. Yuduat No.2  (1992) NWLR (pt. 191) 266; and that they are persons to whom the order of the court is directed at to refrain from the doing a particular act, which violated, so, they are guilty of contempt and ought to be committed to prison, citing Chief O. Odu v. Chief T. Jolaoso & Ors (2005) 16 NWLR (Pt.950) 178.

 

The Respondents referred us to the decision of Ipaye, J., and argued that ex-facie the alleged contemnors are not parties to suit No: ID/191/92; that it is not in dispute that Kasali, J., perpetually restrained the Defendant, her agents and servants from committing the act of trespass; that based on the definition of “Agent” and “servant” in Halsbury Laws of England Vol. 1. the question that comes to mind is – “does the alleged contemnors, who are the owners of a vast parcel of rand as confirmed by the supreme court Judgment in suit No: SC.13/93 be said to be an agent of the Defendant in sui No: ID/191/92; a buyer of port of the portion of the land?”; that the answer to an ordinary man on the street is a capital No; and that it is not within the compass of human imagination to associate them as either agents and/or servants of the said Defendant, so, the decision of Ipaye, J. has not been assailed by the Appellant.

 

To resolve this issue, we have to look at the cold bare facts on record.
There is no dispute that there was only one Defendant in Suit No: ID/191/92, and that the Respondents were not parties to the Suit, The 1st Respondent was a witness for the Defendant in that suit, however, the term “witness” in its strict legal sense, means one who gives evidence in a cause before a Court and in its general sense includes all persons from whose lips testimony is extracted in any judicial proceeding – see Black’s Law Dictionary, 9th Ed. In other words, Ipaye, J., was right to hold that “although the 1st Contemnor was a witness for the Defendant in Suit No. Suit No: ID/191/92 none of the alleged contemnors have been shown to be a party in Suit No: ID/191/92”. If they are not parties, the question would then be – are they agents or servants of the Defendant?
Agency is the relationship between two persons, one of whom expressly or impliedly consents that the other should represent him or act on his behalf, and the other who consents to represent the former – see N.O.H.B. V. Ajogwu (2000) 12 NWLR (pt.682) 626 where Fabiyi, JCA (as he then was), explained-

“Agency has been described as a relationship where one person confides the management of some affair, to be transacted on his account, to the other party. Or where one party is authorized to do certain acts for, or in relation to the rights or the property of the other. But it means more than tacit permission and involves request, instruction or commands”.

 

Niki Tobi, JCA (as he then was) also held in N.O.H.B. V. Ajogwu (supra) that-
“A relationship of agency is generally said to exist whenever one person called the agent has authority to act on behalf of another called the principal and consent to act…

 

Agency is a relationship which exists between two persons, one of whom expressly or impliedly consents that the other should represent him or to act on his behalf and the other of whom similarly consents to represent the former or so to act.

 

The one who is to be represented or on whose behalf the acts is to be done is called the principal and the other who is to represent or act is called the agent.”
See also Professor Friedman’s definition in his book – “Law of Agency, 6th Ed.” –
“It is meant to indicate that although there may be many situations in which one person represent or acts on behalf of another, it is only when such representation or actions on another’s behalf affects the latter’s legal position, that is to say his rights against and liabilities towards other people, that the law of agency applies.

 

The law of agency has no relevance to social or other non-legal obligations.”

 

The basic idea behind the law of agency is that the law acknowledges that a person need not always do things that change his legal relations in person, and he may use the services of another person to change them or to do something during the course of which they may be changed. The long and short of it is that the law recognizes that in some circumstances, the agent can affect the principal’s legal position by certain acts which, though performed by the agent, are not really to be treated as the agent’s own acts but as acts of the principal – see Bowstead on Agency, 13th Ed. where it was further explained that –

“The same idea is extended to cases where the law regards two persons as having agreed that one shall act for the other, regardless of whether their intentions did actually coincide in this respect; to cases where the law confers upon one person the power to act on another’s behalf as if there had been agreement…; to cases where one person subsequently approves an act done on his behalf, which he has not previously authorized; and finally to cases where the law treats a third party as entitled to regard one person as having been authorized to act as agent for another, even though nothing has occurred from which the law would draw that conclusion if the matter were in issue between the supposed principal and supposed agent”.

 

In this case, the Appellant referred to paragraph 19 of his supporting Affidavit where he averred that – “The Respondents claimed that they derived their Title from Mrs V. O. K. Momodu, the Defendant in the Suit”, and argued that since they did not deny this averment, the fact that they are her agents is admitted.
But it is not as simple as he may think because contempt of Court is an offence of a criminal character, and it must be proved beyond reasonable doubt – see Agbachom V. The State (1970) All NLR 1, where the Supreme Court added that “where there are two equally likely possibilities open td the Court when considering the act complained of, it is not proper to hold that the offence of contempt has been proved beyond reasonable doubt”. To put it in clear terms, it is not enough for the Appellant to argue that the Respondents are agents of the Defendant in Suit No: ID/191/92 because they did not deny his averment to that effect; he has to go a step further and prove beyond reasonable doubt that the Respondents were authorized by Mrs. Momodu to act on her behalf.

“Servant” is a “person employed by another to do work under the control and direction of the employer” – Black’s Law Dictionary, 9th Ed. See the definition by H. G. Wood (1886) in the same Black’s Law Dictionary, as follows-

“A servant, strictly speaking, is a person, who by control or operation of law, is for a limited period subject to the authority or control of another person in a particular trade, business or occupation … The word servant, in our legal nomenclature, has a broad significance, and embraces all persons of rank or position who ore in the employ, and subject to the direction or control of another in any department or labor or business. Indeed it may, in most cases, be said to be synonymous with employee”.

 

Is there anything in the Court processes that implies or suggests any inference that the Respondents are servants of the Defendant in Suit No: ID/191/92?
Absolutely nothing: and the only conclusion that can be reached by this Court is that the Appellant failed to put up a platform on which to base his allegation that the Respondents were guilty of contempt because they are agents and/or servants of the Defendant. There was no appeal against the said Judgment, and Mrs. Momodu is not a party to the contempt proceedings, so, there is nothing to connect her with the Respondents in the proceedings, and nothing before the Court to ascertain whether or not they are her agents or servants. Surely, they cannot be criminalized for the order that is not binding on them, thus, Ipaye, J. was right to hold that they cannot be found liable for contempt.
The end result is that there is no merit in this appeal, and it is dismissed.
The decision of Ipaye, J., is hereby affirmed. There will be no order as to costs.

 

CHIMA CENTUS NWEZE, J.C.A.:

My noble and inimitable Lord, Augie JCA, obliged me with the draft of the leading judgement just delivered now. I agree with the reasoning and conclusion.

 

It must be noted that the alleged act of contempt was done ex-facie curiae, Nzide v Kootu (2007) 1 NWLR (pt. 1014) 99; Fawehinmi v The State (1990) 5 NWLR (pt.148) 42. Thus, the appellant had a duty to establish that there was a subsisting and valid order of court prohibiting the alleged contemnors from doing certain things; that the alleged contemnors violated the said order; that the alleged contemnors, deliberately, violated the said order and with guilty mind. These requirements must be proved cumulatively, Sode v L.S.D.P.C (2000) 7 NWLR (pt. 663) 152.

 

Put differently, the appellant had a duty to prove that there was a contempt of court and that the respondents were the ones who, actually, committed the said contempt, deliberately and, with guilty mind, A. G. Anambra State v Okeke (2002) 12 NWLR [pt. 782] 575; Olatunji v State (2000) 12 NWLR (pt. 680) 182; Ejimkonye Joshua State (2000) NWLR (pt. 658) 591.

 

I agree with the leading judgement that Ipaye J, rightly, held the respondents could not be found liable for contempt. It for these reasons, and the more elaborate reasons in the leading judgement, that I, too, shall enter an order dismissing this appeal for being unmeritorious. I abide by the consequential in the leading judgement.

 

 

CHINWE EUGENIA IYIZOBA, J.C.A.:

I had the privilege of reading in draft the judgment just delivered by my learned brother, Amina Adamu Augie JCA. I agree with him that the appeal has no merit and should be dismissed.

 

In the case of Yekini Abbas v. Olatunji Solomaon & Ors (2001) 15 NWLR (pt 735) 144 or (2001) LPELR – 23(SC), the Supreme Court held that an application to commit for contempt is in the nature of a criminal charge and the rules relating to criminal charges are applicable. The power to order committal for civil contempt must be exercised with great care. The Court may only punish as contempt, a breach of or disobedience to an order of court or non-compliance with an undertaking if it is satisfied that the terms of the order or injunction are clear and unambiguous, In the light of the above, how can the Respondents who were not parties to the proceedings be charged with contempt of court. The contention was that the Respondents were agents of Mrs Momodu. But the Respondents claimed they sold the land to her as owners in occupation based on the Supreme Court Judgment that declared them owners of the land. How then are they her agents? Agency can only arise if she was the owner in occupation and as principal appoints the respondents her agent. See Oyenuga v. International Computers (Nigeria) Ltd (191) 1 NWLR (pt.168) 415 or (1991) LPELR – 2877 (SC):

“It is a general rule of the law of contract that a principal can appoint another as agent … where the principal himself has the capacity to enter into such a contract or to do the acts.”

 

Contempt proceedings in the manner initiated by the applicant ought not to be used as a way of enforcing the subsisting judgment of the court. The proper thing to do in the circumstances is to initiate proceedings against the Respondents who are claiming to the owners of the land by virtue of the Supreme Court judgment.

 

The decision of Ipaye J. is based on sound principles of law and is hereby affirmed. I abide by the order as to costs in the lead judgment.