Alhaji Sulaiman Mohammed & Anor V. Lasisi Sanusi Olawunmi & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

The point arising in this appeal could conveniently be taken to commence from the order made by the Supreme Court on 8th July, 1981. There the court while dismissing the appeal of the defendants/appellants made the following remarks-

“Mr. B.A. Augusto for the appellants did not object to aggression by Mr. Abraham Adesanya learned counsel for the respondents that a plan ought to be filed. We thereupon ordered a plan to be filed. Mr. Augusto also agreed that the injunction granted by the court should be tied to the plan.

It was upon this concession that in dismissing the appeal of the appellants it is ordered that the injunction granted by the trial court be tied to the area edged red in plan no. GP/1150 made by G.P. Okusanya as a Certified True Copy of Plan No. AB 1381 which was originally made by one A.B. Apatira licensed surveyor on 13th August, 1962.

With this order incorporated as part of the judgment of the trial court, the appeal of the appellants is hereby dismissed.”

What followed was a complaint that the defendants were, notwithstanding the order, in flagrant disregard of the order of the Supreme Court. An application for committal of these defendants was brought before the Lagos High Court (Fernandez, J.). After hearing the parties, Fernandez, J held-

“This order was made in suit no. LD/1213/76, appeal no.FCA/L/95/78 SC/61/1980. It follows therefore that there is a valid order of injunction which is enforceable by committal proceedings. What then are the interference of the respondents Paragraphs 4-10 of the affidavit in support give the details of the interference by the respondents and the reaction of the applicants.

These interferences vary. While some are institution of legal proceedings in court, others are selling and building on the applicant’s land. In proof of these allegations, the plaintiff’s only exhibits 7, 8 and 9 attached to the further affidavit speak directly by showing interference of the respondents. There is no evidence of any selling or building any part of the plaintiff’s land before me. The respondent did not offer any reasonable explanation to exhibit 7, 8 and 9.

Exhibit 7 is a letter from the Lagos State Government in which the State Government informed the Ado family that the families of Emiabata, Gejere and Gashinbaki on behalf of Odan family through a solicitor requested the government not to pay any compensation to the Ado family. The letter was dated 25th June, 1984. Exhibit 8 is the letter informing the Badagry Local Government of the appointment and recognition as Bale of Abule Ado village.

Exhibit 9 was a letter asking for similar appointment and recognition of Alhaji Rufai Jubril as Bale of Gejere town. Gejere town is within the land of the applicants. Exhibits 8 and 9 were written on Ihe 12th and 19th December, 1985 respectively. These steps as I have earlier said are conclusive acts of contempt and (before and after Forms 48 and 49 were issued and served) which the applicants put forward without any answer from the respondents. Though, this is a civil contempt nonetheless the breach of the order must be proven beyond all reasonable doubt as in criminal prosecution.

Thus, apart from the affidavit of both parties there must be further evidence to incriminate him. Conversely, the slightest interference once proved is punishable for the requirement is not the gravity of the act but the actual commission of the act. The respondents therefore committed an act of contempt as regards exhibits 7, 8 and 9. I therefore found the respondents guilty of contempt of the order of this court confirmed by Court of Appeal and the Supreme Court in suit no. LD/1213/76; FCA/L/95/78 and SC.61/1980.”

Having found the defendants guilty of contempt and after hearing the learned counsel for the parties on the issue of sentence, the learned Judge suspended the sentence until the respondents were able to purge themselves of the following within fourteen days, and that is;

“1. That the respondents and their agents move away from the land of Ado family as shown in exhibit ‘1’ (i.e. the Plan).

2. The respondents are hereby ordered to withdraw the letters exhibits 7, 8 and 9 attached to the affidavit in support dated 20th June, 1986.
3. That the respondents do produce in court copies of letters of withdrawal of the said exhibits 7, 8 and 9 attached to the said affidavit, and also to confirm to the recipient of these letters that they have no authority to do what they did in accordance with the Supreme Court order as aforesaid.”

He concluded –

“In default of this purge within the time stipulated, I will pronounce my sentence in accordance with the law taking into consideration the gravity of the offence.

In the meantime, the 1st-12th respondents are to be on bail in the sum of N1,000.00 (One Thousand Naira) and one surety in like sum. Each surety is to undertake to produce the respondents bailed, by 9 a.m. on the 3rd October, 1988.

The Chief Registrar shall have power to approve the sureties. A surety can take two of the accused persons on bail.” This was on 21st September, 1988.

An appeal was filed against the decision to the Court of Appeal by a notice dated 26th September, 1988. On 27th September, learned counsel filed notice of motion seeking a stay of any further proceedings pending the determination of –

(a) The appeal already filed with the leave of the Lagos High Court No.6 by Hon. Justice E. Akin Fernandez against the ruling dated 30/6/1988 of the court by Hon. Justice E. Akin Fernandez.

(b) The appeal filed against the rulings/orders dated 20th and 21st September, 1988.

These dates have been mentioned above. It is the ruling dated 20th September that extended till 21st September. As for the ruling dated 30th June, 1988, Fernandez, J., granted leave to appeal. The order was made on 13th September, 1988.

On 4th October, 1988, the 8th respondent came to court and alleged a purge of his contempt. He was there and then cautioned and discharged.

As regards the appeal filed in the Court of Appeal, that court on the application of the appellants granted an interim stay of the orders of the High Court, pending the hearing of the appeal by the court.

Meanwhile on 22nd February, 1989 by a motion for leave to raise a preliminary objection the respondent’s counsel Mr. M.A. Bashua applied to the Court of Appeal seeking-

(1) That the notice of appeal filed by the appellants be dismissed or struck out for the notice of appeal is in breach of section 25(2)(a) & (3) of the Court of Appeal Act of 1976.

(2) That the order for leave to appeal granted by Hon. Justice Akin Fernandez dated 13th September, 1988 is invalid for the court lacks jurisdiction to grant the leave:-

(a) the leave granted was against the principles laid down by the Supreme Court in the judgments of these cases:- Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 and Madam Oni Amudipe v. Chief Ogunleye Arijodi (1978) 9 and 10 S.C. 27.

(b) the notice of appeal filed against the rulings of 20th and 21st September, 1988 was filed without the leave of the court hence, the notice is incompetent.

(3) That the suits no. ID/155/82, ID/551/88, ID/1346/87, ID/1201/87 and ID/1416/87 quoted and relied upon in the grounds of appeal filed by the appellants amount to an invitation to the courts to review the decisions of the Supreme Court in SC.6111980 (FCA/L/95/78 dated 8th July, 1981 and SC.24/1979 FCA/L/158/77) in violation of section 215 of the constitution which puts finality on the decision of the Supreme Court.

(4) That the order for stay of proceedings made by this Honourable Court on 4th October, 1988 be discharged in compliance with the principles set down by the Supreme Court in Mobil Oil (Nig.) Ltd. v. J.O. Agadaigho (1988) 4 S.C.N.J. 174; (1988) 2 N.W.L.R. (Pt.77) 383.

(a) there is no proper appeal pending before this Honourable Court.

(b) the notice of appeal offends order 3 rule 4(1) & (2) of the Court of Appeal Rules of 1981.”

The Court of Appeal made a painstaking examination of the issues before it. Adenekan Ademola, J.C.A., delivering the judgment of the Court of Appeal separated the two rulings. In regard to the order by Fernandez, J., made on 13th September, 1988, Adenekan Ademola, J.C.A., said that the notice of appeal was filed ever before the court granted leave to appeal. Of course, the order for leave to appeal could not operate retrospectively. The time within which to file notice to appeal was extended by the Judge. The learned Justice of the Court of Appeal ruled that it was only the Court of Appeal that could enlarge its own time. This cannot be faulted. It is trite that the time to appeal to a Court of Appeal which includes the Supreme Court could only be enlarged by that court. The court upheld the preliminary objection as raised by Mr. Bashua of counsel.

With regard to the ruling dated 20th and 21st September, 1988 Adenekan Ademola, J.C.A.’s view was that there was conviction of the appellants. It would affect their liberty. That comes under S.220(1)(g)(1) of the 1979 constitution which provides

“An appeal shall be from decisions of a High Court to the Federal Court of Appeal as of right…

(i) “where the liberty of a person… is concerned.”

Again the order of conviction is a final order.

It is against the decision of the Court of Appeal that the appellants have lodged an appeal to this court relying on four grounds of appeal. In his brief, Mr. M.A. Bashua reduced the issues to three but they are so comprehensively worded that they cover the grounds of appeal. The issues are best set out in this judgment. They are:

FIRST ISSUE:

(a) Did the findings of the trial Judge in the ruling of 21st September, 1988 bring the trial for contempt of court to a final trial in view of the fact that the court imposed conditions to be fulfilled, by the respondents, and also suspended further action pending the fulfilment within 14 days of conditions imposed on the respondents after which the court would decide what to do, pages B19.

(b) Whether the Court of Appeal in deciding that the respondents need no leave to appeal in respect of the ruling of 21st September 1988, failed to follow the judicial interpretation made by the Supreme Court on section 220(i)(g)(ii) of the constitution in a recent decision in the case of James G. Orubu vs. National Electoral Commission (1988) 5 N.W.L.R. (Pt.94) page 323 at 354 per Nnamani J.S.C.

ISSUE TWO

Whether having held that the High Court had no jurisdiction to grant extension of time to appeal as it did on 13th September, 1988 and that the appeal so filed was invalid and incompetent, the Court of Appeal ought not to have made consequential orders of striking out the said appeal and all orders made thereon.

ISSUE THREE

(a) Was the Court of Appeal right as it did in granting a stay of proceedings simply because it found that the appellants had a right to appeal and had filed such appeal. Alternatively, does the mere filing of an appeal automatically entitle the appellants without more, to a grant of stay of proceedings or execution, without hearing arguments and making a decision on the merits based on principles of law guiding the making of such an order

(b) Whether the Court of Appeal judicially and judiciously exercised its discretion in granting the stay of proceedings. Whether the action of the Court of Appeal in making the order for stay of proceedings without hearing the respondents, does not constitute a violation of the right of the respondents to fair hearing under section 33 of the constitution of the Federal Republic of Nigeria 1979.”

Mr. Bashua’s argument on the first issue was that until the High Court before whom the contemnors were brought, decided what to do with the contemnors, the matter was not final. Learned counsel said in that brief that on 4th October 1988, the Court of Appeal granted an interim stay of further proceedings. If the proceedings were final, then stay could not be granted. This action must be a contradiction in terms. A finding of guilty is not final as certain conditions had to be fulfilled before the court decided what to do with the contemnors.

As regards the issue of liberty of the subject under S.220 (1)(g)(ii) of the constitution, it was an error, learned counsel argued, to equate this with appeal without leave as S.220(1)(g)(ii) presupposes that an individual had been wrongly held or illegally deprived of his liberty.

The convicts were not appealing against the conditions imposed upon them but against their conviction. Finally, in this issue, counsel submitted that as a stay of execution presupposes that there is a sentence of the court to be carried out a stay of execution could not have been granted in this case where no sentence has been passed.

On Issue 2, learned counsel referred to the decision of the Court of Appeal which declared wrong the order of Fernandez, J., granting extension of time to appeal to the Court of Appeal against a decision of the High Court. Counsel argued that the Court of Appeal having so held ought to have struck out the appeal; that is the appeal lodged against the ruling of 30th June, 1988.

The third issue raised the question of fair hearing and the complaint was that the respondents in the Court of Appeal [appellants in this court] were not called upon to address the court whether a stay of further proceedings and stay of execution should or should not be granted. A stay, counsel further submitted, is not automatic.

Mr. Adigun Ogunseitan learned counsel for the 1st to 3rd respondents submitted that once there was a conviction, the respondent’s fate was sealed and only an appeal court could, after that, intervene. He contended that the order was final. Again respondents could only be convicted once.

Mr. Oyagbola represented the 4th, 5th, 6th, 7th 9th and 12th respondents, contended on the first issue that once there is a conviction, there is a change in the respondent’s status. He then added-

“The fact that the High Court suspended this sentence for fourteen days does not render the committal/conviction as interlocutory.”

On section 220(1)(g) ii of the 1979 constitution there is no doubt that the liberty of the respondents is concerned, and in S.220(1)(g)(ii) the order is one of mandatory injunction.

The oral arguments expatiated on the briefs.

I think the real issues for determination herein are as follows-

1. Is the order made by Fernandez, J., on 21st September 1988 to wit-

“a finding of guilty of contempt against the respondents followed by an order to suspend sentence until the respondents were able to purge themselves of contempt by

(a) moving away from the land;

(b) withdraw letters exhibits 7, 8, 9 and

(c) production in court of copies of such letters of withdrawal…a final or interlocutory order

If it is final then the respondents could appeal against it as of right, but if interlocutory, they would require leave to appeal.

2. How does the application of S.220(1)(g)(i) & (ii) of the 1979 constitution affect right of respondents to appeal as of right or with leave.
3. With regard to the order of the court made on 30th June, 1988 and the subsequent order made on 13th September, should the appeal against the first order be struck out

These, I think are all the issues. I will take the 3rd issue first. The Court of Appeal held;

“First, let me take the order of Fernandez, J., made on the 13th of September, 1988 in respect of the ruling dated 30th June, 1988. Clearly, the notice of appeal was filed before the order for leave was granted. This should not be so. The notice of appeal must be filed after leave have been given and within the period prescribed by act. Any notice filed outside that period must be incompetent. See the decision of this court in Russell v. Russell reported in (1987) 2 N.W.L.R. (Pt.57) at page 437 at page 441. Nor, could the period to file such notice be extended by any other court as it was purported to have been done by the learned trial Judge in his order made on the 13th of September, 1988.

Therefore, the preliminary objection succeeds as regards the purported appeal lodged in respect of the ruling of Fernandez , J., made on the 30th June, 1988.”

Having held thus the consequential order that should follow is one of striking out the notice of appeal against the ruling made by Fernandez, J., on 30th June, 1988. The notice of appeal filed against that decision of 30th June, not having been struck out, as it should have been struck out, is hereby, struck out.

Now, to the important issues. That is, whether the order of the trial court made on 21st September was interlocutory or final. There is a serious misconception of the law by both learned counsel and with respect also by the Court of Appeal. The Court of Appeal simply, without any authority or argument, contended that the order is final. All the learned counsel in this case seem to rely on W.A. Omonuwa v. Oshodin & Anor. (1985) 2 SC 1; (1985) 2 NWLR (Pt.10) 924 SC. Mr. Oyagbola made no reference whatsoever to the case of Akinsanya v. V U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273 where Omonuwa v. Oshodin was exhaustively discussed. Mr. Adigun made no reference to either Omonuwa v. Oshodin or U.B.A. v. Akinsanya. Mr. Bashua made reference to both as authority for the point that the decision was interlocutory without expatiating on the reasons.

The first thing to note in Akinsanya v. U.B.A. Ltd. is that the Supreme Court, in that case, made it known that Omonuwa v. Oshodin was no authority for decisions of courts of first instance in regard to whether the decision is final or interlocutory.

Eso, J.S.C., in that case [see page 290] said-

“Let me say straight away, that I am in full agreement with Chief Williams [learned counsel in that case], that the ratio in Omonuwa v. Oshodin did not touch the age long distinction, settled in this country, between final and interlocutory decision in courts of first instance.”

What then is the test applicable in the courts of first instance The judgment laid it down (p.249) –

“I have no difficulty in agreeing with Chief Williams at this stage therefore that in this country in so far as the court of first instance is concerned the nature of the order test should be adhered to.”

If the learned counsel and the court below have appreciated this, all they would have done is to examine the nature of order made. I have already set this out (supra). The order made has not finally disposed of the matter. The court is still to wait for fourteen days to determine what final order to make. Upon that alone, subject however to the constitution, and this is not a matter before us, there is no doubt that the appellant would require leave to appeal.

How about the constitutional provisions

S.220(1)(g) (i)

“An appeal shall lie from the decision of a High Court to the Court of Appeal as of right

(i) Where the liberty of a person is concerned.”

Is liberty of the respondents concerned herein.

That is the question. They were, after the order, though convicts, still free, awaiting the final order of the court to be made after 14 days. The Judge would not determine on their liberty vel non until that period of 14 days.

S.220(1) (g)(ii)

“where an injunction… is granted or refused.”

What is the injunction granted here The answer is none. What has happened is that the Judge convicted the respondents, and suspended sentence for 14 days. If and it is if the respondents and the agents move away from the land, withdraw exhibits 7, 8 and 9 and produce the withdrawal in court, the trial court might be favourably influenced towards the respondents in passing sentence. I do not think that is granting or refusing an injunction. The original judgment which went up to the Supreme Court was one of injunction, not the order of Fernandez, J., made on 21st September.

On the whole, save for the fact that the notice of appeal against the order of 30th June, 1986 is struck out the appeal is allowed, the respondents require leave to appeal to the Court of Appeal. They have failed to obtain leave and therefore there is no appeal before the Court of Appeal. The order of the Court of Appeal is hereby set aside, and the notice of appeal filed is hereby struck out.

The appellants are entitled to costs in this court assessed at N500.00 and in the Court of Appeal assessed at N400.00.

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SC.42/1989