Aminu Amindele Ajayi Ojora & 2 Ors V. Lasisi Ajibola Odunsi (1964)

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 TAYLOR, J.S.C.

The appellants were the defendants in the action Suit No. LD/20/56 brought by the present respondent for himself and on behalf of the Ojora Chieftaincy Family in the High Court of Lagos in which he made the following claims:

(l) For an injunction restraining the defendants from selling, leasing or alienating family land;

(2) An Account of all monies received by the defendants in respect of family property sold or leased by them; and

(3) Payment over of all amount found due on the taking of such account.

The Suit was determined by Bennett, J., who dismissed the action. On appeal to this Court the Judgement of Bennett, J. was reversed on the 8th June 1961, and Judgement was entered for the plaintiff in accordance with the writ. In consequence of this and the subsequent disobedience of the aforesaid three defendants to the order of Court, an application was made by way of Motion for them to show cause why an Order of Attachment should not be made against them. The application reads thus inter alia:- ‘Take notice that the plaintiff will on Monday, the 13th day of November, 1961, at the hour of 9 a.m. in the forenoon apply to this Court for an order for your committal to prison for having neglected to obey the order of the Federal Supreme Court made on the 8th day of June, 1961 ….’

Evidence was adduced and the Learned Trial Judge held inter alia that:- I am satisfied that the respondents acted in wilful disobedience to the order of Court in not filing the account after a request to do so contained in Form 48 dated 25th October, 1961.’ A little later on the Judgement continues thus:- ‘I have therefore come to the conclusion that the respondents failed to show cause why Order of Attachment should not be made. The power to order Attachment is, however. to be exercised with great caution-vide Wilson v. Rafflalovich 7 Q.B.D. 553 CA. at page 561.’

A little later still the Trial Judge said this:- ‘For this reason and also for the fact that the Order was, complied with, though this was belated, I will not order that the respondents be committed to prison although I am satisfied that they have committed act of wilful disobedience to the order of Court.’ The Learned Trial Judge however ordered the present appellants to pay the costs of the application which he fixed at 150 guineas.

That was on the 15th January, 1962. On the 29th 1anuary, 1962, the present appellants filed a Notice of Appeal to this Court. No leave was obtained because the order appealed against was treated as a final order and not an interlocutory one. On the 18th October, 1963, the respondent gave notice of his intention to raise the following preliminary objection:- ‘That in as much as the appellants have not obtained leave of Court herein this Honourable Court has no jurisdiction to hear this appeal,’ Mr Ajayi for the respondent made it clear on the 23rd October, 1963 when the objections were heard that the ground for this particular objection was that the appeal by the appellants was in substance one against the award of costs against them since there was no order of committal made.

On the 22nd October, 1963, Counsel filed, on behalf of the respondent, another Notice of intention to take a preliminary objection at the hearing, and the substance of this was that the Order appealed against was an interlocutory order and leave to appeal not having been obtained, this Court had no jurisdiction to entertain the appeal. There were other matters which arose in the course of hearing, and which will be dealt with later on, but for the moment the point at issue is whether the order refusing to commit the appellants, after finding them in breach of the order of Court and consequently in contempt of Court, coupled with the order for costs against them, was a final order or not. In deciding whether an order is final or interlocutory, this Court has held in the case of Ude and Others v. Agu and Others [1961] All N.L.R. 65, 66 that the test to be applied is one which looks at the order made and not at the nature of the proceedings, thus following the test laid down in the earlier case of Blay v. Solomon 12 W.A.C.A. 175. In short, what we have to determine is whether ‘the rights of the parties’ are finally determined by the order appealed against.

In the substantive action the rights of the parties are clearly set out in the writ, reference to which has already been made. The plaintiff claimed rights to an account from the defendants of rents received from family properties which they had no right to lease; further he sought for an injunction to restrain the defendants from violating rights vested in him as the Head of the Ojora Chieftaincy family and payment to him of such sums found due to him on- the taking of the account.

Now having succeeded in establishing those rights, the plaintiff quite naturally expects the defendants to give effect to them by obeying the order of Court. The defendants have failed to do this and their failure amounted to a disobedience of the order of Court. It should be borne in mind from the passages in the Judgement to which reference has been made, that the disobedience was the failure of the appellants to file an account at the time they should have done so. The rights of the parties in this respect had already been finally determined by the Judgement of the 8th June, 1961.

The application. before the High Court, was not seeking the determination of new rights but the enforcement of the rights already established. In our view and for these reasons the Judgement or order was an interlocutory one in respect of which the leave of the Court is required before an appeal to this Court can be entertained We now pass on to the merits of the application for an extension of time within which to appeal, and for leave to appeal.

The arguments of Learned Counsel on the prayers contained in this motion were centred on the application for leave to appeal. Chief Williams argued that O. VII r. 3 of the Federal Supreme Court Rules does not make it compulsory for an applicant to make his application first to the Court below before bringing one in this Court. References were made to O. VII r.37, O. IX r.28, and O. I r. 5 of the Rules of Court.

In reply Mr Ajayi urged that the application be refused because of the many difficulties, which related to matters of procedure, that would be encountered if it were granted. He argued that the statutory requirement that the application shall first be made to the Court below cannot be waived; that though the Court may waive a provision of the Rules of Court it cannot waive a provision of an Act of Parliament.

In answer to the Court, Mr Ajayi conceded that the respondent cannot be said to have so altered his . position as to make it inequitable for this Court to grant the prayers sought in the motion. It is provided in O. VII r.4(2) as follows:- ‘(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the Notice of Appeal.’

Other Citation: (1964) LCN/1172(SC)