Ekwealor Ifekwu & Anor V. Chuba Mgbako & Ors (1989)

LawGlobal-Hub Lead Judgment Report

SAMSON ODEMWINGIE UWAIFO, J.C.A.

The appellants were convicted for contempt of court on 9th September, 1985 and sentenced to a term of 3 months’ imprisonment each by C. Olike J., sitting at the Onitsha High Court. They were alleged to have flouted an interim injunction of the court made on 16th June, 1983 restraining the plaintiff, his servants and agents from building or continuing to build on the land which was the subject-matter of dispute in suit No. O/61/76. The plaintiff in that case, now the 1st appellant, brought an action in a representative capacity against the defendants claiming for (a) a declaration of title to the said land which is a portion of land known as AMA ANI OKPU and specifically delineated in a survey plan; (b) N600.00 damages for trespass; and (c) injunction. The 2nd appellant is a member of the interest group represented by the 1st appellant, namely, Umuokpalaora family of Isinyi Village, Nando.

Curiously enough it was the defendants, now respondents, who never counterclaimed that sought and were granted an interim injunction against the said plaintiff. I cannot resist saying in passing that it was quite irregular and wrong as the injunction was not based on any interest or right claimed by the defendants. In other words, they had no right to an interim injunction in the first place. This point was decided recently by this Court in Okechukwu v. Okechukwu (1989) 3 N.W.L.R. (Pt.108) 234. However, that circumstance has no bearing on the merit of this appeal. I have merely drawn attention to an unfortunate use made of interim injunction.

The real issue for consideration in this appeal is whether the appellants were properly convicted for contempt. The appellants complain, among other things, that they were convicted on insufficient evidence. First, they say that the facts deposed to in the affidavit evidence of the respondents were denied by the appellants and no oral or further evidence was available upon which the court could find the appellants guilty. Second and this is an extension of the first, that the land upon which the appellants were alleged to have built after the injunction was granted was said by them to be different from the land in dispute but that the trial judge did not ascertain the validity of that defence before he proceeded to convict.

On the first point, the learned judge relied entirely on conflicting affidavit evidence. In a matter like this he was bound to call oral evidence to resolve the conflict. This he failed to do. Even in civil matters where there is conflict in the affidavit evidence, the court will ordinarily want to be satisfied by oral evidence as to where the truth lies: see Akinseti v. Akindutire (1966) 1 All N.L.R. 147 at 148; Eboh v. Oki (1974) 1 S.C. 179 at 189-190; Akintemi v. Onwumechili (1985) 1 N.W.L.R. (Pt.1) 68 at 73. It is the law that the duty on the Court to call for oral evidence in appropriate cases is not diminished by the failure of the parties to the application to specifically request to lead evidence on oath: see Falobi v. Falobi (1976) 9 & 10 S.C. 1 at 15.

The second point mentioned above was not appreciated by the trial judge even when his attention was drawn to a vital aspect thereof. He said inter alia:
Mr. Okonkwo learned counsel for the respondents submitted that the building is not on the land in dispute and referred to (a plan) Exh. A attached to the counter-affidavit to show that the area in dispute is distinct from the location of the building; that the respondents have no intention to disobey the court…
The respondents in the instant case have not shown that the order of the court was made in error. Their argument as to the location of the building and the land in dispute was canvassed before the order of interim injunction was made. It is late now to reopen it in the present application for committal against them.”

There is a serious error here. The appellants may have previously canvassed that issue as to the location of the building in relation to the land in dispute and been overruled in the civil motion for injunction. But now in the criminal motion for committal they were entitled to raise it again as their defence and to be heard on it. There are three reasons for this: (i) The standard of proof in civil matters is different from that in criminal matters – the former being on the balance of probabilities and the latter beyond reasonable doubt. (ii) Once an accused person denies an allegation or pleads not guilty he puts every material fact in issue and the onus is on his accuser to prove such fact. (iii) The defence of an accused person must be considered no matter how stupid.
A contempt of court is an offence of a criminal character. A man may be sent to prison for it. The offence must therefore be satisfactorily proved, that is, proved beyond reasonable doubt: see In re Bramblevale Ltd. (1970) Ch. 128 per Lord Denning M.R.; Aneke v. Ede (1989) 1 N.W.L.R. (Pt.100) 738. Proof beyond reasonable doubt cannot be achieved on unresolved conflicting affidavit evidence and when a defence put forward by an accused is not considered. A conviction based on such slipshod approach cannot be allowed to stand.

Learned counsel for the respondents later appeared in this court and announced that he could not support the conviction even though the respondents had earlier filed their brief of argument. The reason for this change of attitude was that it had been discovered that the land on which the building in question was built was different from that in dispute. This was exactly the defence of the appellants which the trial judge failed to consider.

In the circumstances the appeal is allowed. The conviction and sentence which the lower court passed on each of the appellants are accordingly set aside. Each of the appellants is acquitted and discharged.

Other Citations: (1989)LCN/0100(CA)