Alhaji Ishola Are Ogele V. Alhaji Aleru Dare (2008)
LawGlobal-Hub Lead Judgment Report
SOTONYE, DENTON-WEST, JCA
This is an appeal brought by the Appellant against the decision of Hon. Justice A.O. Bamigbola, delivered on 20th day of June 2006, in Suit NO. KWS/60/2001, in the High Court of Justice, Ilorin, rendered in favour of the Respondent.
In the Court below, the Appellant was the Plaintiff /Applicant while the Respondent was the Defendant/Respondent.
In the appeal, the Appellant appealed against the ruling of the Lower Court earlier referred to wherein Bamgbola J. after taking evidence in a contempt proceeding against the Respondents, dismissed the Appellant’s contempt proceedings brought against the Respondent holding, inter-alia, that the Appellant has not proved a case of contempt to order of Court beyond reasonable doubt, holding thus: “In the result, I am of the considered opinion that the Judgment Creditor has not only failed to prove that the Judgment Debtor by himself or through his workmen went to the land in dispute in breach of the order of this court of 3rd May, 2001, he has also failed to establish that the Judgment Debtor did so with a guilty mind. In other words, that he deliberately disobeyed the said court order. A contempt of court is an offence of a criminal character, it must be proved beyond reasonable doubt.” See section 138 of Evidence Act. See also FALUYI VS. ODERINDE (1987) 4 NWLR (C.A) (Pt, 64) 155 AT P. 162
The offence is punishable with fine or imprisonment. This application is asking the court to commit the Judgment Debtor to prison for disobedience or failure to comply with the order of court.
If, in fact, the order is disobeyed, the court has the power to punish the defaulting and the disobedient party for contempt of court accordingly by fine or imprisonment. Therefore, the burden of establishing the case is thus heavier on the Applicant. Unlike in civil cases, the standard of proof required here is proof beyond reasonable doubt. The burden of proof in this case is on the Judgment Creditor to prove the act of disobedience on the part of the Judgment Debtor with respect to the court order in question, and also that he did that deliberately. I have found earlier on in this judgment that this Court has doubt as to whether the Judgment Debtor went to the land in question subject-matter of the court’s order of 3rd May, 2001. In this case, and/or that his disobedience as claimed by the Judgment Creditor, if at all, was deliberate. That doubt will be resolved in favour of the Judgment Debtor, the alleged contemnor. See AWOBOKUN VS. ADEYEMI (1968) NMLR 289. I therefore hold that the offence of contempt has not been proved.”
Dissatisfied with the ruling, the Appellant proceeded to this Court challenging the ruling granted in favour of the Respondent on grounds, inter-alia, that the decision has led to a miscarriage of Justice and that it is totally against the weight of evidence.
The background facts of the appeal in the Lower Court, in a nutshell, is that whilst the substantive suit was pending and was yet to be heard, the Lower Court on the 3rd of May, 2001, after the hearing of the motion exparte filed on the 5th April, 2001 by the Plaintiff/Applicant, granted the applicant an order in his favour whereby the Defendant/Respondent was restrained through or by himself, his servants, agents, privies and any person or persons however be from committing and/ or continue to commit further acts of trespass or doing, anything whatsoever on the Plaintiff’s family land, the subject matter of this suit situate, lying and being along Airport Road Budo, Nuhu Village, Ilorin, Kwara State of Nigeria pending the hearing of the motion on notice”
It is the interim order above that the Appellant herein alleged that the Respondent disobeyed by sending his workmen to work on the land in dispute. The Appellant immediately through a motion on notice supported by affidavit asked the court below to commit the Respondent for contempt of court. The acts amounting to the contempt of court were as contained in the Applicant’s supporting affidavit. The Respondent responded to the allegation of disobedience to the order of court by categorically denying ever doing any of the acts alleged against him in the Applicant’s supporting affidavit, particularly in paragraphs 9 to 13 of his counter affidavit. The Court below after taking evidence, both affidavit and viva voce, ruled as above that the allegation of disobedience of the order of court as alleged was not proved beyond reasonable doubt.
The Appellant, dissatisfied, has appealed to this Court against the ruling of the Court below holding that the allegation of contempt against the Respondent has not been established.
When this appeal came up for hearing in this Court, the learned Counsel to the Appellant Mr. S. I Abaye submitted that the Appellant’s brief is dated 9th day of January, 2007 and filed on the same date and there is also a reply brief to Respondent’s brief dated the 19th Day of April, 2007 and a Cross Respondent brief’s dated and filed the 5th day of October, 2007. Mr. Abaye adopted the Appellant’s brief and Cross-Respondent’s brief and urged the Court to hold that the Respondent has not proved that he is entitled to the Lower Court’s Order and therefore prayed the Court to allow the Appeal.
However, Tunde Olumo Esq., the learned Counsel to the Respondent adopted the Respondent’s brief of argument and relied on same. He consequently made submissions to the Court to dismiss the appeal on the grounds that the Appellant had failed to proof that the Respondent disobeyed the order of the Court by going into the land and, emphasizing that the Respondent is entitled to cost having been subjected to pains of trial without just cause.
Further, Tunde Olomu Esq. identified the Cross-Appellant’s brief dated 5th day of October, 2007 and filed the same d ate, which was adopted and relied upon by him. Consequently, he urged the Court to allow the cross appeal on the grounds adumbrated therein.
The Appellants identified three issues for determination namely:-
- Whether or not from admissible evidence before the Trial Court, the allegation of criminal disobedience of the injunctive order of the Court has been established
- Whether or not the admission by the Respondent that his labourers/workmen were arrested on the disputed land has not satisfied the required standard of the allegation of contempt of Court order.
- Whether the award of costs was proper in the criminal or quasi-criminal proceedings or in all the circumstances of this case.
The Respondent did not formulate any issue for the determination but rather adopted the issues formulated by the Appellant in his brief of argument.
In fact, the Respondent, having adopted the appellant’s issue found it fit to marry issues 1 and 2 together and accordingly, argued same together. For purpose of clarity and ease of reference to the points raised in both briefs, I s hall approach the determination of these issues in almost the same manner as herein canvassed.
ISSUES 1 AND 2
- Whether or not from admissible evidence before the trial court, the allegation of criminal disobedience of the injunctive order of the Court has been established.
- Whether or not the admission by the respondent that his labourers/workmen were arrested on the disputed land has not satisfied the required standard of proof of the contempt of Court.
The point, in my humble opinion, is to identify whether this alleged contempt is actual and if actual, what nature of contempt would it be? Does it amount to civil contempt or criminal contempt? See: Dikibo vs Ibulaya (2006) 16 NWLR (Pt. 1006) 563.
In this appeal what has been clearly identified is that the alleged contempt was not done in the face of the Court otherwise known as contempt in facie curiae (or Coram Judice). In fact, this contempt was allegedly done outside the Court hall or premises which is known as contempt ex facie curiae or (Coram Non Judice). The contempt complained of in this appeal was done or allegedly said to be done ex-facie curiae that is contempt committed outside the Court premises, by the agents, servants and privies of the Respondent on the appellant’s land, the subject-matter of the substantive suit at the Court below, situate, and lying along Airport Road, Budo Nuhu Village, Ilorin, Kwara State of Nigeria.
See: Nzide Vs Kootu (2007) 1 NWLR (Pt. 1014) Pg. 99, Fawehinmi Vs The State (1990) 5 NWLR (pt. 148) 42Having identified the basis or stand of the appeal, I intend to adopt, in the determination of in the appeal issues 1 and 2 of the Appellant’s issue for determination. I shall now in a short and precise form state or recapitulate the Respondent’s alleged contempt which in essence, is based on Exhibit A, which is the police record made by PW1 on the arrest of the workmen of the Respondent. It is to be noted that it is the argument of the Appellant that the Respondent admitted that he was the employer of the workmen found on the disputed land and that the Respondent has not called the workmen to give evidence that he did not send them to the land in dispute if that will avail him out of the contempt and since he did not do so, he is in willful disobedience of the order of Court. The Appellant further submitted that the evidence of the Respondent of not sending his labourers or workmen to the disputed land is equally not admissible being an after-thought and meant to overreach the Appellant. The Counsel to the Appellant opined that such act should be condemned and denounced by the Courts and referred this Court to the cases Ajide vs Kelani (1995) 1 NWRL (Pt. 12) 248; See: Globe Motors Holdings Ltd Vs Honda Motors Ltd (1998) 5 1 NWRL (Pt.550) 373 especially at 381 to 382.
In his ruling the learned trial judge found, among others, on page 74 lines 8-14 thus:-
“Whether or not the admission by the Respondent that his labourers/workmen were arrested on the disputed land has not satisfied the required standard of proof of the allegation of contempt of court order.
“I have found earlier on in this judgment that this Court has doubt as to whether the judgment debtor went to the land in question the subject matter subject of Court’s order of 3rd May, 2001 in this case and/or that his disobedience as claimed by the judgment creditor, if at all, was deliberate.
That doubt will be resolved in favour of the judgment debtor, the alleged comptenor.”
From the foregoing, the Appellant submits that there is no doubt that the learned trial judge cast his lot in favour of the Respondent preferring to believe his affidavit evidence and the evidence of his witnesses to the affidavit evidence placed before him per se or even the evidence of the Appellant’s witness which he tore into shreds contending that this allegation of contempt being a criminal offence must be proved beyond reasonable doubt. But the Appellant’s Counsel quickly argues that he does not quarrel with the requirement of proof of the contempt beyond reasonable doubt but that his contention or grouse is against the fact that the trial court has deliberately abdicated in its duty of doing Justice and has resorted to “mere appeal to sentiment and sympathy which is not a good bed fellow with justice” Sic the Appellant called upon this Court to do justice by coming to his rescue. To buttress his call on this Court to do justice he referred the Court to the case of Willoughby vs IMB (Nig) Ltd (1987) 11 NWRL (Pt. 48) 105 at 131 where it was held as follows:-
“Justice will definitely fare better without the bandage of prejudice or sympathy around her eyes. Decisions based on sympathy around her but quicksand in the law, and if indulged in, will soon swallow up every principle laid down by, and in previous judgment of this Court”.
Following the above decision, this Court while relying on a litany of other cases spoke of “Justice” in the case of Ekwengo Vs Federal Republic of (Nig) (2001) FWLR (Pt 63) 99 at 121 as follows:-
“As a moderator of the operation of the entire panoply of entrenched rights in Chapter IV of the Constitution, Justice has been acknowledged to be neither a partisan watchdog nor a malleable actor that takes care of the interest of an accused person alone, it is evenhanded and strives to unite all the various shades of interests in a dispute before the court as variously discussed in Nigeria Ports Authority Vs Construction General Farsura Cogefar SPA (1974) SC 81, 91, Josiah Vs The State (1985) 16 NSCC 11) 874, 883. Willough by VS International Bank Nigeria Merchant Bank Ltd (1987) 18 NSCC (Pt. 1) 41, 56 Adene Vs Dantubu (1988) 4 NLER (Pt 88) 309, at 319, and Akanbi Vs Alao (1989) 20 NSCC (Pt 11) 263, 290. One abiding consensus emerged from the characteristic of justice described variously by those decisions and by other kindred cases on the point, it is the charge that the court must discountenance a variant of entreaties predicated on justice where the facts of the case have glaringly shown the plea to be calculated to mask t he material issues on which the merit of the case hinges “(Italics mine).
The Respondent, on the other hand, contends that the Appellant failed in the Court below to discharge burden placed on him by law to establish the allegation of contempt of court which he made against the Respondent. This failure by the Appellant to prove the disobedience on the part of the Respondent entitles the Respondent to the ruling of the Court below absolving him of the allegation of contempt as alleged. He referred this Court to the evidence of the Appellant and his witnesses both in the supporting affidavit and viva voce. He urged the Court to compare this with the evidence of the Respondent, affidavit and viva voce and that of his witnesses which remain unchallenged. Learned counsel to the Respondent submits that the combined effect of these pieces of evidence creates much doubt in the mind of the Court as to the guilt of the Respondent, vis-a-vis the allegation of contempt made against him, thereby justifying the Court in discharging him. He therefore urged us to dismiss the appeal and affirm the ruling of the Court below.
To establish that there has been a contempt of court, there are certain ingredients which must be proved. These ingredients are cumulative and failure to prove one of them is fatal to the success of the case as the offence will be held not to have been proved.
To establish contempt of court, it must be established that there is a subsisting and valid order of court prohibiting the alleged contempnor from doing certain things. It must be established, too, that the alleged contempnor did that which the said order of court prohibits him or her from doing. It must also be established that the act was done by the alleged contempnor deliberately and with guilty mind. All these, it should be noted again, must be proved cumulatively. See: Sode Vs L.S.D.P.C (2000) 7 NWLR (Pt. 663) 152.
The standard of proof required in criminal cases is proof beyond reasonable doubt. See: Ndike Vs. The State (1994) 8 NWLR {Pt. 360} 33. This rule of law applies with equal force in civil cases where there has been an imputation of crime. Here, too, as in criminal matters, the standard required is proof beyond reasonable doubt. See: Sekete Vs N.A.F. (2000) 15 NWLR (Pt 692) 868.
Contempt of court, the subject-matter of the ruling against which the present appeal is brought is an imputation of crime arising out of a civil matter. The onus is on the Appellant herein to prove beyond reasonable doubt that there is a contempt of court and that the Respondent is the one who actually committed the said contempt deliberately and, with guilty mind. See generally the case of A. G. Anambra State Vs. Okeke [2002] 12 NWLR {Pt. 782} 575, a decision of the Supreme Court on the point. See the decision in the cases of Olatunji V s State (2000) 1 2 NWLR (Pt. 680) 1 82, Ejimkoye Vs State (2000) 3 NWLR (Pt. 648) 262, Awopejo Vs State (2000) 6 NWLR (Pt. 659) 1 and Joshua Vs State (2000) 5 NWLR (Pt. 658) 591.
The evidence adduced in this case, both affidavit evidence and evidence viva voce, have not been sufficient enough to amount to evidence in proof beyond reasonable doubt to justify the Court reversing the order of the Court below discharging the Respondent on the allegation of contempt of court. See: the case of the State Vs Ajie (2000) 11 NWLR (Pt. 678) 434.
The testimony of PW1 under cross-examination at page 56 of the record creates much doubt in my mind as to the preciseness and definiteness of the identity of the land in dispute and in respect of which an order of court alleged to have been disobeyed was given. The duty on the Appellant to prove this through adducing credible evidence has not been discharged to the satisfaction of the Court. This is in view of the unchallenged evidence of the Respondent, corroborated by that of PW1 under cross examination, that there is a sign board and a partly built building on the land in dispute, subject matter of the order alleged to have been disobeyed. See: the case Aigbadun Vs State (2000) 7 NWLR (Pt. 666) 686. The Respondent, too, it should be noted, in his counter affidavit and evidence viva voce denies categorically ever sending his workmen on to the land in dispute. This was not shaken under cross examination and remains unchallenged.
The evidence available before the Court as contained in the record of appeal, regrettably, cannot sustain the allegation of the crime of contempt of court against the Respondent. It has failed to prove beyond reasonable doubt that the Respondent herein actually committed the offence of contempt of court as alleged. See: the decisions in Iko Vs State (2000) 9 NWLR (Pt. 671) 54, Nwachukwu Vs State (2000) 12 NWLR (Pt. 680) 128 and Akono Vs Nigeria Army (2000) 14 NWLR (Pt. 687) 318.
It may and it may not be that there was a contempt of court or that it was the Respondent who actually committed it, but since it has not been proved beyond reasonable doubt as required by our law, I cannot set aside the ruling of the Court below discharging the Respondent. See: Agwyegbo Vs Kagoma (2000) 14 NWLR (Pt. 687) 252. There is no smoke without fire the appellant could not have cooked all this story of contempt by the respondent, with full police involvement and investigation if something similar has not occurred. The mere fact of his defiance of the dignity of a court by his absence from the court after due service of the process on him is an indication of a consequential contempt of the lower court before whom he ought to have appeared in the first instance and he failed to do so. However, the law is an ass and it heavily weighs in his favour in the circumstances of this appeal.
While I may not be inclined to allow the appeal on the strength of the evidence on record and set the decision of the lower Court aside, I must warn the Respondent strictly that he should always ensure he conducts himself in such manner that he will not be seen to do that which may give rise to reasonable suspicion that he is disobedient to an order of court validly made or that he is disrespectful to the court.
Parties are advised to maintain the status quo ante bellum and to particularly give due respect and consideration to the courts and the rule of law which is the foundation upon which our society is built. We would all fare better if our society is governed by the rule of law than when it is governed by the rule of men. The parties should go back to the lower Court and diligently pursue their case in the substantive suit to a meaningful conclusion. Non-diligence in the form of refusal to appear in court in answer to the processes of the Court on the part of the Respondent is quite disrespectful and has in no small measure contributed to the present state of the matter, which is still lingering in the court below.
In view of the foregoing, I decline from allowing the appeal, but the parties are ordered to keep the peace and be of good conduct while hearing goes on in the substantive matter in the Court bellow. Status quo ante should be maintained in the matter as between the parties. The order of the lower court awarding costs against the Appellant made on the 20th day of June, 2006 is null and void and is hereby set aside.
I make no order as to costs.
Other Citations: (2008)LCN/2859(CA)
