Ganiyu Obatula & Ors. V. Chief E.S.B. Wilkey & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

This is an appeal against the decision of the High Court, Ota, Ogun State, to dismiss the Appellants’ Application to have the Respondents committed to prison for disobeying an earlier Judgment of the Court in Suit No. HCT/38/96.

In the Application dated 11th April 2001, the Appellants prayed the Court for –

(A)”An Order for the committal of (the 8 Respondents) to prison for having disobeyed the Judgment of this Honourable Court in Suit No. HCT/38/86 delivered on the 16th day of August 1994 ordering a Perpetual Injunction against the Defendants in this action and their privies in title or interest from further committing acts of trespass on the res in Suit No. HCT/38/86 being all that piece or parcel of land – lying and situate and being at Isheri Oke or Isheri Oke Church in the Ogun State of Nigeria.

(B)An Order of this Honourable Court declaring the Power of Attorney made on the 11th of July 1997 by the 1st, 2nd, 3rd, 4th, 5th, 7th & 8th Respondents in favour of the 6th Respondent herein and all other acts and deeds in furtherance of the said Power of Attorney a Nullity on the basis of the legal maxim of Nemo dat quod non habet.

THE BREACHES COMPLAINED OF:

i. Total failure of the Defendants privies in title or interest to obey the subsisting Judgment of this Honourable Court delivered in this action on the 16th of August 1994.

ii. The unlawful and relentless harassment of the Plaintiffs and their privies in title or interest by the Defendants generally and the 6th Respondent in particular, whilst relying for no reasonable cause assigned on the existence of the Power of Attorney dated 11th July 1997: Deed/Agreement for Sale of land made on the 7th of March 1976 and Survey Plan No. AKN/OG851A& B/94, all made in connection with the res litigated upon in Suit No. HCT/38/86 and on which final and subsisting Judgment was delivered by this Honourable Court on the 16t of August 1994″.

The Application was supported by a 31-paragraph Affidavit deposed by the 5th Appellant, wherein it was averred as follows in paragraphs 2 – 10 thereof –

2. That I am aware that on the 16th of August, 1994, Honourable Justice G. A Bakre sitting at Court No.1, High Court, Ota, Ogun State delivered final Judgment in this action in favour of the Plaintiffs. The said judgment is herewith annexed and marked as Exhibit ‘A’.
3. That I am aware that the Judgment against the Defendants in this action restrained the said Defendants, Servants, Agents and Privies or Assigns from further committing acts of trespass on the Plaintiffs’ land in dispute –
4. That I am aware that the Judgment mentioned in paragraph 2 [supra] concerns the Plaintiffs’ land at Isheri in Ogun State delineated on the annexed Survey Plan No. ADAKS026/0G/91 marked Exhibit ‘B’ – and the said Judgment have not been stayed, set aside or overruled on appeal.
5. That I am aware that by recent overt acts, the Defendants through their Privies and/or Agents have re-opened their acts of trespass on the Plaintiffs’ land which was adjudged to the said Plaintiffs by this Honorable Court in this action in 1994.
6. That I know as of fact that the Respondents – are the Privies in title or interests and Agents of the Defendants as the said Respondents along with the 3rd, 4th, 5th, 6th & 7th Defendants on record are all members of the Kumoworo family comprising the three branches of Oshorun at Isheri and Agboyi; Ikosi at Ikosi and Ikoro at Agboyi Oruba whilst the 6th Respondent is the Agent of the Defendants having regards to her claim of being in possession of a Power of Attorney dated 11th January, 1997 in respect of the land on which the Plaintiffs have a subsisting Judgment.
7. That I know as of fact that Suit No. HCT/38/86 was contested by the parties to the said action in a representative capacity.
8. That now shown to me and marked as Exhibit ‘C’ is the photocopy of the Power of Attorney granted to the 6th Respondent by the Privies in title and interest of the Defendants on record being the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th Respondents herein.
9. That in exercising the Power granted the 6th Respondent as disclosed in Exhibit ‘C’ -. The said 6th Respondent had on several occasions caused and or initiated the arrest, detention and prosecution of the Plaintiffs and other members of the Plaintiffs’ family who ventured to challenge the said 6th Respondent over her unlawful interference with Plaintiffs proprietary rights or legal rights on their land at Isheri Oke Church as awarded to them by this Honorable Court in Suit No. HCT/38/86.
10. That I am aware that the unlawful interference of the 6th Respondent with the land awarded to the Plaintiffs in Suit No. HCT/38/86 became more intense and severe after the Plaintiffs had taken pains to explain and show to the 6th Respondent the positive and direct Judgment of this Court.

Also attached to the Affidavit as Exhibits, are the following documents –

Exhibit D – Copies of “Invitation to the Police Station Forms” issued to the 5th Appellant and other members of his Family by the Police

Exhibit E – Certified True Copies of Criminal Charge Sheets of criminal charges filed at the Magistrate Court, Ota by the Police

Exhibit F – Copies of the Judgment and Striking out Order of the Magistrate Court, Ota, on the said criminal charges

Exhibit G – Copies of the Writ of Summons and Application of the 6th Respondent filed in Suit. No. HCT/27/2000 as Defendant/Counter-Claimant upon an interlocutory Application seeking injunctive relief Exhibit H – Copy of an Agreement of Sale of Land dated 7th of March 1976 between the 6th Respondent and 4 named Vendors

Exhibit I – Copy of the Survey Plan No. AKN/OG851A & B/94 made in the name of the 6th Respondent’s Company – Solfun Nigeria Ltd.

Exhibit J – Composite Plan of the land in dispute made at the request of the Appellant “showing inter alia that the land being interfered with by the 6th Respondents in these proceedings fall within the land adjudged to the Plaintiffs’ Family by this Honourable Court” – see paragraph 24 of the supporting Affidavit.

In opposing the Application, the 4th Respondent deposed to a 12-paragraph Counter-Affidavit, wherein he averred as follows in 2 – 6 thereof –

2. That I have never purchased or got an Assignment of any potion or portions of the land comprised in the Certificate of Occupancy issued in favour of the 1st Defendant – and Registered as No. 00011546 dated the 22nd day of November, 1985 from the 1st Defendant or any of the Defendants and I am not a Privy to the 1st Defendant or indeed to any of the Defendants sued by Plaintiffs in the above action, in respect of the land in dispute.
3. That I am a party to the above action and I am not bound by the Judgment delivered in the above action on 16 – 8 – 1994 by Hon. Justice G. A. Bakre (Rtd.)
4. That I am not aware of the said Judgment delivered by Hon. Justice G. A. Bakre (Rtd.) until a copy of the said Judgment was attached to the above Application and served on me.
5. That the Judgment of Honorable Justice Bakare (Rtd) attached to the above Application does not refer to the Certificate of Occupancy referred to in the Writ of Summon in the above case and does not refer to the identification of the land in dispute and the bearings and distances of the land in a position to know (sic) the location of the land in dispute in the above case which was determined by Hon. Justice Bakre (Rtd.).
6. That my Solicitor, Chief Dele Awoniyi, has informed me and I verily believed him that even though the Plaintiffs herein pleaded many Plans including composite Plan No. ADASO.26/0091 in paragraph 52 (vi) of their Amended Statement of Claim, yet, the Judgment of Honorable Justice Bakre (Rtd) has not been attached to any specific Plan or any specific Composite Plan filed by the Plaintiffs / Applicants in the above case.

On her part, the 6th Respondent deposed to a 12 paragraph Counter-Affidavit, wherein she averred as follows in 3 – 11 thereof –

3. That I know as a fact that I am not bound by the Judgment of Ota High Court Number One, dated 16th August, 1994 being heavily relied upon and brandished by the Applicants in this Suit.
4. That I derived my title to the parcel of land I occupy at Isheri both from the Ikumoworo family of Isheri as well as Oba Ganiyu Obatula the present Olofin of Isheri. (i.e. the 1st Appellant)
5. That I know as of fact that the Olofin of Isheri (i.e. the 1st Appellant) is the principal Head as well as the principal Custodian of Olofin stool and landed property.
6. That in June 1996, the Olofin of Isheri, Oba Ganiyu Eniadenwa Obatula (i.e. the 1st Appellant) collected the sum of five hundred thousand Naira (N500,000.00) from me together with a bottle of gin, Kolanut and alligator pepper while he led me into possession of portion of land I presently occupy at Isheri and for which some of the Applicants have been interfering with my peaceable possession; all in the presence of witnesses. Copies of the photographs taken at Olofin’s Palace, Oba Ganiyu Eniadenwa Obatula (i.e. the 1st Appellant) and at the site are hereby attached as Exhibit ‘A’ and ‘A1’ respectively.
7. That the Olofin of Isheri, Oba Ganiyu Eniadenwa Obatula (i.e. the 1st Appellant) gave me exclusive possession of the land an approved school was built and agreed to the sharing of the remaining parcel of land on 50-50 equal basis upon the consideration I furnished. Copy of the joint Agreement between me and Oba Ganiyu Eniadenwa Obatula (i.e. the 1st Appellant) is hereby attached as Exhibit ‘B’.
8. That I reported the malicious damage to my property on parcel of land duly purchased by me to the Police and the Police in their wisdom carried out the arrest and prosecution of suspected culprits.
9. That the facts of my possessory right to the parcel of land lying and situate at Isheri-Odo, Isheri, Ogun State, deriving equally from Oba Ganiyu Eniadenwa Obatula (i.e. the 1st Appellant) is well and sufficiently enunciated in my Amended Statement of Defence and Counter-Claim in Suit No. HCT/27/2000 pending before High Court No. II, Ota, Ogun State.
10. That I have not and I do not intend, in any way to disobey any Order of Court.
11. That the Applicants are flagrantly making efforts to wrestle from me what does not belong to them any longer.

The Appellants responded with a “Further and Better Affidavit” of 10 paragraphs deposed to by one Prince (Engr.) Ayodeji Dabiri, who averred –

1. That I am the deponent herein and the Head of the Olofin Chieftaincy Family from 1991 to date.
2. That by virtue of my position in the Olofin Chieftaincy Family, I should be conversant with sale of the landed property of the Olofin Chieftaincy Family of Isheri.
3. That prior to my present status as Head of the Olofin Chieftaincy Family, Prince Murtala Sofela (Deceased) was my immediate predecessor as the Head of the Olofin Chieftaincy Family.
4. That I know as a fact that the Kudoro Family has a share on the land on which my family got Judgment in 1994 in Suit No. HCT/38/86.
5. That the land mentioned in paragraph 4 (supra) forms part of the Olofin Chieftaincy Family land.
6. That I know as a fact that my family did not sell any portion of our land to the 6th Respondent in these Committal Proceedings and the sum of N500,000.00 only or any sum of money was not paid to my family by the 6th Respondent in these proceedings over any part of our family land.
7. That I also know as a fact that my family NEVER received any alligator pepper and/or Kolanut or hot drink from the 6th Respondent in these proceedings in 1996 or at any time at all in consideration for any portion of the Olofin Chieftaincy family land.
8. That I know as a fact that the Olofin Chieftaincy Stool or its Headship is different and separate from the position of headship of the Olofin Chieftaincy Family.
9. That I have seen the documents marked as Exhibits ‘A’, ‘A1’, and ‘B’ annexed to the 6th Respondent’s Counter-Affidavit filed in this action and I confirm that except the 1st Plaintiff in this matter, al other persons appearing on the said documents are not members of our family and my family did not authorize the making of Exhibit ‘B’ and we NEVER ratified any such document/transactions therein contained hence our persistent insistence that 6th Respondent in these proceedings is a TRESPASSER in our family land.

The 1st Appellant also deposed to a 15-paragraph “Further and Better Affidavit in Support (No.2)” wherein he averred as follows at 2 – 11 thereof –

2. That by virtue of my position, I occupy the Olofin Chieftaincy Stool.
3. That I know as a fact that the Olofin Chieftaincy Family is a land owning family and the family Head is Prince (Engr.) Ayodeji Dabiri.
4. That I also know as a fact that Prince (Engr.) Ayodeji Dabiri has been the Head of the Olofin Chieftaincy Family from 1991 to date.
5. That I know as a fact that the position of the Head of Olofin Chieftaincy Family is separate and distinct from the position of the Head of the Olofin Chieftaincy Stool, which I presently occupy as the Paramount Ruler of Isheri – Olofin, Ogun State.
6. That I never gave any parcel of land (howsoever described) to the 6th Respondent cited on the FORM 129 filed in these proceedings.
7. That I am not the principal custodian of Olofin landed property rather Prince (Engr.) Ayodeji Dabiri is the principal custodian of the Olofin landed property which landed property is held in trust by him in his position as Head of the Olofin Chieftaincy family for the general members of the said family and for himself.
8. That I never received the sum of N500,000.00 (Five Hundred Thousand Naira) or any sum at all nor received a bottle of gin, kola-nut and alligator pepper from the 6th Respondent – in consideration for any parcel of land at Isheri or any other place/location.
9. That the photograph attached as Exhibit ‘A’ annexed to the 6th Respondent’s Counter-Affidavit was not taken in furtherance of any sale or transfer of any land to the 6th Respondent but the said photograph was taken at the instance of the 6th Respondent and without my consent when she stormed my Palace with her thugs sometimes ago for no reasonable cause assigned.
10. That I am not one of the persons on the photograph annexed as Exhibit ‘A’ to the Counter-Affidavit of the 6th Respondent and I did not lead the 6th Respondent into possession of any parcel of land at Isheri belonging to the Olofin Chieftaincy Family or any other land howsoever described. I also did not at any time instruct any person to lead the 6th Respondent into possession of any parcel of land at Isheri belonging to the Olofin Chieftaincy Family.
11. That I never agreed with the 6th Respondent to share any of the Olofin Chieftaincy Family land at Isheri or any land at all with the 6th Respondent.

In response, the 6th Respondent filed a 6-paragraph “Further Counter-Affidavit”, wherein she averred as follows in paragraphs 2 – 5 thereof –

2. That this Further Counter-Affidavit is necessary to expose the falsehood and apparent contradictions in the Affidavit purportedly deposed to by Oba Ganiyu Obatula, the Olofin of Isheri (i.e. the 1st Appellant) in this Suit.
3. That paragraphs 5 and 7 of the Further and Better Affidavit are patent falsehood.
4. That I know as a fact that both Olofin Chieftaincy Stool and Chieftaincy Family are the same and inseparable in terms of ownership, management and general superintendency of Olofin Family land.
5. That I know as a fact that the Olofin of Isheri particularly Oba Ganiyu Eniadenwa Obatula appointed Prince Ayodeji Dabiri as Family Attorney in 1996 and again revoked the power of Attorney in the exercise of his power as the custodian of Olofin Chieftaincy Family land. Copy of the Deed is hereby attached as Exhibit ‘C’.

The Appellants replied with a 9-paragraph “Further and Better Affidavit in Support [No.3], wherein the 5th Appellants averred as follows –

3. That further to the Further and Better Affidavit [No.2] deposed to by the 1st Plaintiff herein, I know as a fact that the position of the Head of Olofin Chieftaincy Family is separate and distinct from the position of the Olofin Chieftaincy Stool, which is being presently occupied by the 1st Plaintiff -.
4. That I am aware that the land over which the Plaintiffs got Judgment in this action in 1994 is a family land over which the Kudoro Family also has a subsisting interest along with the Olofin Family.
5. That I also know as a fact that when the 1st Plaintiff purportedly appointed Prince Ayodeji Dabiri as Family Attorney as alleged in the Further Counter-Affidavit of the 6th Respondent to this Application dated 10th October 2001, the purported appointment was promptly challenged by members of the Olofin Family of Isheri in Suit ID/2716/96 and I annex herewith as Exhibit ‘K’ the Certified True copy of the Writ of Summons in that action.
6. That I know as a fact that consequent upon the challenge of the 1st Plaintiff’s conduct in Suit No. ID/2716/96, the said 1st Plaintiff revoked the purported Power of Attorney by making the document annexed as Exhibit ‘C’ to the Further Counter-Affidavit of the 6th Respondent to.
7. That I am informed by Mr. O. O. Oniyire of Counsel and I verily belief him (sic) to be correct that the 1st Plaintiff cannot properly donate powers to control the Plaintiffs’ land to Prince Ayodeji or any other person.
8. That I am further informed by Mr. O. O. Oniyire of Counsel and I verily belief him (sic) to be correct that the mere irregular conduct of the 1st Plaintiff in purportedly donating Power of Attorney to anybody to superintend the Plaintiffs’ land which conduct was challenged by a Court action does not make the position of the Olofin Chieftaincy Stool one and the same with the position of Headship of the Olofin Chieftaincy Family which is presently being occupied by Prince Ayodeji Dabiri since 1991.

The Application for committal with the various Affidavits, Counter-Affidavits, and Exhibits attached thereto, was argued before the Hon. Justice P. A. Onamade, and after hearing addresses of counsel, he delivered his Ruling on the 24th of June 2002, wherein he stated as follows @ pages 185 – 186 –

“I have no hesitation to conclude that the whole truth has not been stated in the Further and Better Affidavit of Oba Obatula for the following reasons –

1. The photographs do not show those in them as being chased by anyone.
2. Someone going to the Oba’s Palace with evil intention is not likely to take along a photographer to record the events.
3. The photographs show people appearing therein in relaxed mood and even smiling.
4. In fact those in Exhibit ‘A’ even posed for the photographer and it shows the 6th Respondent closely beside the Oba.
5. The scene in Exhibit ‘A1’ shows that it was a Palace with the Oba and the 6th Respondent sited, three other men and two children also appearing all in a peaceful atmosphere.
6. The scene in Exhibit ‘A1’ shows the spot as a vacant land.
7. The Oba did not deny writing Exhibit ‘B’ attached to the Counter-Affidavit of the 6th Respondent sworn to on 14th June 2001.

From the above, my conclusion is that no weight can be attached to the Further and Better Affidavit of Oba Obatula. (The 1st Appellant)”

He further stated as follows on Prince Dabiri’s Better and Further Affidavit –

“Prince (Engineer) Ayodeji Dabiri testified in Suit No. HCT/38/86 for which Judgment was delivered in 1994. He there described himself as member and Acting Secretary of the Olofin Chieftaincy Family. He did not tell the Court in the substantive action that he was Head of the Family as well as the Acting Secretary. Murtala Sofela (deceased) whom he described as his predecessor-in-title was not so mentioned in the Judgment, Exhibit ‘A’. With these shortcomings the conclusion is that no weight can be attached to the Affidavit of Prince (Engineer Ayodeji Dabiri”.

He concluded as follows after a “Consideration of Facts by Court” @ p. 187.

“On the whole, the Applicants have not satisfactorily convinced this Court that Oba Obatula (1st Appellant) did not receive a monetary consideration from the 6th Respondent or that Oba Obatula was not the principal custodian of the Olofin Stool and landed property to be able to transfer part of the family land to the 6th Respondent”.

The learned trial Judge held as follows on the 1st Prayer for committal –

“With the several defects, shortcomings and doubts in the averments in support, I have no hesitation to conclude that the allegations against the Respondents are very far from being proved. The facts definitely fall short from supporting the allegations. The relief sought for to commit the Respondents to prison fails and is dismissed”.

He held as follows on the 2nd prayer for declaration on the Power of Attorney-

“In view of the earlier findings that the land in dispute is not the same as that in the Power of Attorney and that fact that the Respondents have not been proved to be the privies of the Defendants in Suit No. HCT/38/86, I have no hesitation to conclude that the order for declaration on the Power of Attorney should fail. It is accordingly hereby dismissed.”

And concluded his Ruling as follows @ 194 of the Record –

“Since the Respondents have not been proved to be trespassers over the parcel of land in the Power of Attorney granted to the 6th Respondent and dated 11th July 1997 they should be allowed peaceful possession of that parcel of land without let or hindrance or any harassment whatsoever. In conclusion, I hold that none of the reliefs sought in this Application succeeds. Each is dismissed and each and every one of the Respondents is hereby discharged and acquitted. The Power of Attorney dated 11th July 1997 is also held to be valid”.

Aggrieved by the decision, the Appellants appealed to this Court with a Notice of Appeal containing 6 Original Grounds of Appeal, and one Additional Ground of Appeal. The 1st – 5th, 7th & 8th Respondents (hereinafter referred to as the 1st set of Respondents) objected to the Issues for Determination formulated from the said Grounds, and it will be necessary to set them out in this Judgment. The 7 Grounds of Appeal, without their Particulars are as follows –

1. The learned lower Court Judge erred in law when he held inter alia that the land in dispute in Suit No. HCT/38/86 is not proved to be the same as the parcel of land over which the other Respondents has put the 6th Respondent into possession and this led to a miscarriage of justice.
2. The learned lower Court Judge erred in law in holding that the Respondents are not privies to the Defendants in Suit No. HCT/38/86 and consequently the said Respondents cannot be bound by the decisions or orders in the Judgment in Suit No. HCT/38/86.
3. The learned lower Court Judge misdirected himself on the facts when he failed to properly evaluate the Counter-Affidavit of Oba Obatula (the 1st Plaintiff) and refused to attach any weight thereto and consequently held inter alia that it was true that Oba Obatula received monetary consideration from the 6th Respondent for the sale of a parcel of land at Isheri to the said 6th Respondent.
4. The learned lower Court Judge erred in law in failing to make a finding that the 6th Respondent is not one and the same with Princess Alice Momoh, with whom Oba Ganiyu Obatula (i.e. the 1st Appellant) allegedly made an Agreement dated 18th June 1996 (i.e. the 6th Respondent’s Exhibit B) purportedly effecting a 50-50 sharing of the Olofin Chieftaincy Family Land and this led to a miscarriage of justice.
5. The learned lower Court Judge erred in law when he held as follows –

“There is no doubt that the Kudoro Family was not a party to Suit No. HCT/38/86 – for a party who is not a party to a Judgment to ask that those who disobey such Judgment should be committed to prison is no doubt wrong in law. And I hold the view that where a non-party tries to enforce a Judgment, such an action is improperly instituted and such procedure is fatal to the exercise of the jurisdiction of the Court. And I so hold in this proceeding”. (Italics theirs)

This decision led to miscarriage of justice.

6. The learned lower Court Judge misdirected himself on facts when he held-

“On the whole, the Applicants have not satisfactorily convinced this Court that Oba Obatula did not receive a monetary consideration from the 6th Respondent or that Oba Obatula was not the principal custodian of the Olofin Stool and landed property to be able to transfer part of the family land to the 6th Respondent”. (Italics theirs)

7. The learned lower Court Judge misdirected himself on the facts when he held that the Appellants/Applicants did not allege that the land described in Exhibit H (Agreement for sale of land dated 7th March 1976) is the same or forms part of the one over which the said Appellants/Applicants litigated and that although one may have the thought that the said Exhibit H was probably backdated, but that, that is not so, and as such, the 6th Respondent had been the owner and been in possession of the said parcel of land 18 years before the Applicants’ claim of Judgment in Suit No. HCT/38/86 and her vendors and herself not being parties to the said Suit, none of them can be found guilty in law of contempt to that Judgment.

In the Appellants’ brief prepared by O. O. Oniyire, Esq., the following three

Issues were formulated as arising for determination in this appeal –

a. Whether the learned lower Court Judge made proper evaluation of the several documentary exhibits and affidavit evidence filed by the parties at the lower Court.

b. Was it right for the learned lower Court Judge to raise suo motu the questions of identity of the land in dispute and the genuiness or otherwise of exhibit H – Agreement dated 7th March 1976 and resolve the questions without inviting parties to address him on the questions?

c. Whether or not the class of prohibited persons against whom an order of perpetual injunction was made under the Judgment in Suit No. HCT/38/86 delivered on the 16th of August 1994 includes ‘privies’.

The 1st set of Respondents however contended in their brief settled by Chief Dele Awoniyi that the Appellants’ three Issues should be discountenanced or struck out because they do not arise from any of the 7 Grounds of Appeal, and have “not been argued as an Issue that has arisen from a particular Ground of Appeal”, citing Buhari V. Takuma (1994) 2 NWLR (Pt. 325) 190 & Olowosago V. Adebanjo (1988) 4 NWLR (pt. 88) 275. Nonetheless, they submitted that the Issues that arise for determination in this appeal are –

1. Whether or not the Application for committal filed against all Respondents is competent or incompetent.
2. Whether or not the party sought to be committed for contempt of Court Order can be convicted for that quasi-criminal offence when the land described on Plan No. ADAKS 226/OG/91 is not the specific land upon which the Judgment in Suit No. HCT/38/86 has been attached.
3. Whether or not the Respondents can be convicted for disobeying the orders made by the Court in the Judgment delivered in Suit No. HCT/38/86 when the Respondents are not parties or privies in the said Suit No. HCT/38/86.
4. Whether or not the 6th Respondent could be convicted for contempt of Court Order when it has been proved that the 6th Respondent bought the land allegedly trespassed upon by all the Respondents from the 1st Plaintiff/Applicant (i.e. 1st Appellant), who was the head of the Olofin Chieftaincy family of Isheri, and also bought the land separately from the 1st – 5th Defendants/Respondents in the above Application who are the accredited representatives of Ikumoworo family.
5. Whether or not the Plaintiffs/Appellants have proved their case to the standard required by law to warrant the lower Court to have convicted the Respondents for disobeying the Orders made by the Court in the Judgment delivered in suit No. HCT/38/86.

On her part, the 6th Respondent submitted in her brief prepared by Olumide Akinbinu, Esq., that the only Issue arising for determination is as follows-

“Whether the learned trial Judge was right in dismissing the Appellants’ Application to commit the 6th Respondent to prison for contempt in view of the affidavit evidence before it and documents exhibited thereto”.

The Appellants filed Reply Briefs to the respective briefs filed by the Respondents and in the Reply Brief to the 1st set of Respondents’ brief, it was submitted that their Issues arose from the Grounds of Appeal; that Issue 1 arose from all 7 Grounds of Appeal, Issue 2 from Ground 1 of the original Grounds of Appeal and the additional Ground 7, and Issue 3 from Ground 3 of the original Grounds of Appeal. It was conceded that the marriage of the Issues to the particular Grounds of Appeal were not set out in the Appellants’ Brief, but it is their contention that the omission to do so was waived by the Respondents who did not raise any objection but rather filed a Respondents Brief in response to the Appellants Brief, citing Titiloye & Ors V. Olupo (1991) 7 NWLR (Pt. 205) 519 & Ugbuehi & Ors V. Governor of Imo State (1995) 9 NWLR (Pt. 417) 53. It was further submitted that the Issues formulated by the 1st set of Respondents should be discountenanced because-

(a) They did not file a Respondent’s Notice or a Cross-Appeal against the decision of the lower Court appealed against by the Appellant in this appeal.

(b) Having not done so, they cannot raise Issues outside the Issues raised by the Appellants, and all the Issues they raised did not arise from the Grounds of Appeal filed by the Appellants. Nya & Ors V. Edem (2005) All FWLR (Pt. 242) 576 referred to.

(c) The 1st set of Respondents’ Issue 1 “flies in the face of ‘factual issues’ on which the Application for committal for contempt was argued at the lower Court and the contempt proceedings are presumed competent. The Respondents herein attempted at the lower Court to scuttle the entire contempt proceedings by raising the very issue being raised again as Respondents’ Issue No. 1 but the bid failed as the learned lower Court Judge ruled against the Respondent on this point. The Respondents did not appeal against the said Ruling.” (Italics theirs)

(d) The Respondents’ Issues were not argued specifically in their brief as Issues arising from particular Grounds of Appeal as none was filed by the Respondents.

To start with, it is well settled by a long line of authorities that arguments in an appeal are based on issues, which are distilled from the grounds of appeal filed by the Appellant, since it is the issues formulated from the grounds of appeal that gives particulars of the complaints the Appellant has against the decision of the lower Court appealed against – see Lufthansa Airlines V. Odiese (2006) 7 NWLR (pt. 978) 34, Ekunola V. C.B.N. (2006) 14 NWLR (Pt. 1000) 292., FRN V. Obegolu (2006) 18 NWLR (pt, 1010) 188 & Akinlagun V. Oshoboja (2006) 12 NWLR (pt. 993) 60 SC. What is more, Issues for determination that do not flow from the Grounds of Appeal have no foundation and are thus incompetent and would be struck out by the Court – see Olowosago V. Adebanjo (supra), FRN V. Obegolu (supra) & Emespo J. Continental Ltd. V. Corona S. & Co. (2006) 11 NWLR (Pt. 991) 365 SC. In this case, I have scrutinized the Grounds of Appeal filed by the Appellants vis-a-vis the Issues they formulated there-from, and I am satisfied that they flow from the Grounds of Appeal. The only sustainable objection is that the Appellants did not set out the particular Grounds the Issues were distilled from in their brief, but that, I must add, is not sufficient to strike out the Issues as urged on us by the 1st set of Respondent. Courts are enjoined to do substantial justice by deciding the rights of the parties on the merits and not to punish them for mistakes, particularly with regard to technical rules of procedure, the breach of which would not occasion a miscarriage of justice – see Lufthansa Airlines V. Odiese (supra). Striking out the Appellants’ Issues on the ground that they did not marry them to particular Grounds of Appeal in their brief, would in my view, be as good as dancing to the tune of drumming by technicalities; and that I will certainly not do. The objection to the said Issues therefore lacks merit and is hereby overruled. I hold same with regard to the Appellants’ objection to the 1st set of Respondents’ Issues. The state of the law is that a Respondent may frame his own issues for determination, which may be the same with those framed by the Appellant or may be different from them. All that is important is that the issues so framed must of necessity be distilled from and related to the grounds filed by the Appellant – see N.D. D.C. V. Precision Associates Ltd. (2006) 16 NWLR (pt. 1006) 527 & Mkpedem V. Udo (2000) 9 NWLR (pt.673) 63.

In other words, a Respondent who did not cross-appeal can only either adopt the Issues as formulated by the Appellant based on the Grounds of Appeal before the Court or at best recast them by giving them a slant favourable to the Respondent’s point of view, without departing from the complaints in the Grounds of Appeal – see Mkpedem V. Udo (supra) Chia V. The State (1996) 6 NWLR (pt.445) 465& Geidam V. NEPA (2001) 2 NWLR (pt 696) 4. In this case, the Appellants’ objection to Issue 1 notwithstanding, it appears to me that the Issues formulated by 1st set of Respondents were merely slanted to their own point of view as they saw it. In any case, they cannot be adopted in dealing with this appeal because no arguments were proffered by the 1st set of Respondents on the issues they formulated; rather they argued only the Appellants’ Issues in their brief. I will adopt the Issue formulated by the 6th Respondent in dealing with this appeal mainly because I agree with her that this is the crux of the issue in this appeal, and because the Issue as formulated by her, will in my view, cover the complaints in the Grounds of Appeal, all of which center on the evaluation or non-evaluation of evidence. In other words, the Issue for determination in this appeal is therefore the simple question of whether the learned trial Judge was right in dismissing the Appellants’ Application to commit the Respondents to prison for contempt in view of the affidavit evidence before it and documents exhibited thereto.

The Appellants contention is that the lower Court failed to properly evaluate the documentary exhibits and affidavit evidence of the parties, and thereby reached a wrong and perverse conclusion that led to a miscarriage of justice, citing Onuoha V. The State (1985) NWLR (Pt. 548) 118, Igago V. The State (1999) 11 & 12 SCNJ 140 & Akio Abey & Ors V. Ibrahim F. Alex & Ors (1999) 125.C. (Pt. 11) 71. Their grievances were itemized as follows –

First, that the lower Court failed to properly evaluate Exhibits ‘A’, ‘S’, ‘I’ & ‘J’, and reached a wrong and perverse conclusion that the land being claimed by the 6th Respondent is different from the land on which the Appellant got Judgment, even though she did not file or submit a counter composite plan to Exhibit ‘J’, and is therefore deemed to have accepted the boundaries and features of the land in dispute as presented by the Appellants, citing Egwu V. Egwu & Ors (1995) 5 NWLR (Pt. 396) 493. Furthermore, that the lower Court raised the issue of identity of land suo motu without inviting addresses from parties as to the identity of the land.

-Secondly, that the 6th Respondent by her own Affidavit in Exhibit ‘G’, traced her title to the land comprised in Exhibit ‘I’ to the Kumoworo Family, which all the other Respondents and Defendants in Suit No. HCT/38/86 belong to, and that the lower Court wrongly concluded that the Respondents are not privies to the Defendants in Suit No. HCT/38/86 and “consequently erroneously held that the Respondents cannot be bound by the decision or orders in the Judgment in Suit No. HCT/38/86”.

– Thirdly, that Exhibits ‘A’, ‘A1, & ‘B’ attached to the 6th Respondent’s Counter Affidavit were either not evaluated at all or improperly evaluated, which led to a miscarriage of justice, having regard to the lower Court’s decision that it was not convinced that the 1st Appellant did not receive a monetary consideration from the 6th Respondent, etc.; and that the lower Court did not consider their submissions that Exhibit ‘B’ is not the 6th Respondent’s document, having been made in the name of Princess Alice Momoh of a different address from that of the 6th Respondent, etc.

– Fourthly, that the decision of the lower Court that the Kudoro family was not a party to Suit No. HCT/38/86 and therefore could not ask that those who disobey such Judgment should be committed to prison is perverse as it was reached against the grain of documentary evidence filed before the lower Court to which clear attention was drawn by the Appellants, therefore its conclusion on the status of Kudoro family and the ability of the 1st Appellant who belongs to the Olofin Family to transfer land jointly held by the Olofin & Kudoro families to the 6th Respondent is perverse.

– Fifthly, that the heavy reliance on Exhibit ‘H’ by the lower Court in deciding that the 6th Respondent had been in possession of the land in dispute for over 18 years before the Appellants’ claim of Judgment in Suit No. HCT/38/86 is perverse since it did not take into cognizance the Affidavit evidence offered by the Appellants. Furthermore, that their counsel’s submission that the 6th Respondent stood by whilst Suit No. HCT/38/96 was hotly contested in Court was not considered at all whereas the equitable doctrine of standing by ought to have been applied.

– Sixthly, that the lower Court placed undue reliance on the Power of Attorney without properly considering the Affidavit evidence offered by the Appellants to the effect that the same was made by the 1st, 2nd, 3rd, 4th, 5th 7th & 8th Respondents in favour of the 6th Respondent over the land in dispute after the Appellant got Judgment in 1994 against the Defendants who are the privies in blood of the 1st, 2nd, 3rd, 4th, 5th, 7th & 8th Respondents and that the undue reliance by the lower Court on the said Power of Attorney led to a miscarriage of Justice in this case.

On their part, the 1st set of Respondents submitted that the lower Court did a proper evaluation of the evidence and arrived at a just decision; that there is no act of improper evaluation that would warrant this Court to set aside the Judgment of the lower Court; and that the Appellants did not establish the following facts that would enable the Court hold that the land comprised in Exhibit ‘B’ is the plan of the land in dispute upon which Orders were made –

(a) The Appellants did not describe the land in dispute sufficiently for the purpose of identification and did not relate the claim to the land comprised in Exhibit B – Survey Plan No. ADAK026/OG/91.

(b) The Judgment in Suit No. HCT/38/86 did not refer to Survey Plan No. ADAKS 026/OG/91 at all or as being the survey plan of the land in dispute in the said Suit No. HCT/38/86.

(c) Though the lower Court made an injunctive order restraining the Defendants from trespassing on the land in dispute in Suit No. HCT/38/86, it did not describe the land in dispute and did not order an injunction restraining the Defendants in the said Suit No. HCT/38/86 from committing any act of trespass on the land in dispute, more particularly described on Survey Plan No. ADAKS026/OG/91.

(d) None of the Appellants’ witnesses, including their Surveyor (PW3), testified that the land in dispute is situate lying and being at Isheri Olofin and that the land in dispute is more particularly described and edged on any Survey plan, including plan No. ADAKS026/OG/91.

(e) There is nothing in the Judgment in Suit No. HCT/38/86 to show that Plan No. ADAKS 026/OG/91 was tendered by any witness in the proceedings in the said Suit, and was ordered to be admitted as Exhibit ‘N’ by the Judge that tried the case and gave the Judgment in the Suit.

It was further submitted that Exhibit ‘G’, which was filed by the 6th Respondent in Suit No. HCT/27/2000, was to show the followings-

(a) That the land alleged to have been trespassed upon by her is her bona-fide property that she purchased from Ikumoworo family.

(b) That the Ikumoworo family owned the larger piece of land including the land sold to her by way of settlement in accordance with Yoruba Native law and Custom.

(c) That the Olofin of Isheri Chieftaincy family, Kudoro family and Ikumoworo family are distinct and separate families at Isheri who may possess their respective distinct land at Isheri but they did not jointly own the land sold to her.

(d) That the land sold to her by Ikumoworo family does not form portion of the land belonging to Olofin of Isheri Chieftaincy family or the Kudoro family and does not form portion of the land in dispute in Suit No. HCT/38/86 in respect of which an injunctive Order was made by the learned trial Judge who sat over that case.

Furthermore, that Exhibit ‘G’ could not be used to hold that the Respondents are privies to the Defendants in Suit No. HCT/38/86; that the affidavit evidence and Exhibits show that the 1st Appellant executed Land Purchase Document in favour of the 6th Respondent, which she paid consideration for and a picture was taken at the time of paying and the execution of the Purchase Receipt, which was not expressly denied by the 1st Appellant; and that the Issue raised that 1st Appellant had no power to sell the land is irrelevant herein. This Court was therefore urged to dismiss the appeal.

The 6th Respondent, on her own part, submitted that the standard of proof required in committal proceedings is that for a criminal proceeding, i.e. the breach of what has been prohibited, which must be proved beyond all reasonable doubt, citing Ojeme V. Momodu II (1995) 6 NWLR (Pt. 403) 583, Oba S. Alehinloye (Sanmola) V. Oba A Rahaman Oyediran & Ors (2000) FWLR (Pt.) 479; that the onus is on the Appellants to prove by cogent and unassailable evidence that she ought to be sent to prison for her acts of omission or commission regarding the Judgment in Suit No. HCT/38/86; and to discharge this onus, the Appellants must satisfy the Court by establishing the breach of what has been prohibited vide the Judgment using any of the three (acceptable) ways of proving the commission of a crime as a parameter viz: (a) Confession (b) Circumstantial evidence (c) Eye witness, citing Oka V. The State (1975) 9 -11 SC 17- Samson Emeka V. The State (2001) FWLR (Pt. 66) 682, Dickson Moses V. The State (2003) FWLR (Pt. 41) 1969.

It was further submitted that the Court must consider the Respondent’s defence as contained in the affidavit evidence; that the Respondent whose liberty is at stake is likened to an accused person answering to a criminal charge, citing Agbyuluwa V. C.O.P. (1961) ALL NLR (PT IV) 850, Agbeyemi Ajidahun V. The State (1991) 9 NWLR (Pt. 213) 33. AT 43; that by paragraphs 4, 5, 6, 7 of her Counter-Affidavit and Exhibit A, A1 and B attached thereto, she made out a clear case of re-purchase from the Appellants family as represented by the 1st Appellant, and the validity or otherwise of the re-purchase cannot be the subject of contempt proceedings; that the issue of a re-purchase from the Appellant’s family is analogous to a defence of bonafide claim of right, as envisaged by Section 23 of the Criminal Code, which is a complete defence to all offences relating to property: committal proceeding as it relates to trespass to land in this case inclusive, citing Nwakure V. C.O.P. (1991) 1 NWLR (Pt. 167) 332, Ohonbamu V. C.O.P. (1990) 6 NWLR (Pt. 155) 201, I.G.P. V. Emeozo (1957) WRNLR 213, and that from the Affidavits, Counter-Affidavits before the lower Court with all the annexed Exhibits, the evaluation of the defence of re-purchase vis-Ã -vis the allegation of contempt of Court has to be within the following con –

(a) Whether or not the 1st Appellant is the Head and Custodian of Isheri Chieftaincy family land? Where this is resolved in the affirmative by evidence the sale is not void.

(b) Whether or not the 1st Appellant ever sold the land subject matter of the proceeding to the 6th Respondent at all.

It is the 6th Respondents’ contention that all these questions cannot be determined within the ambit of a contempt proceeding as they are questions more related to declaratory reliefs and orders where cogent and strong case must be made on pleadings and evidence, citing Makanjuola & 1 or V. Ajilore (2000) FWLR (Pt. 8) 1328, Odofin V. Ayoola (1984) 11 SC 72, Ikeneweka V. Egbuna (1964) 1 WLR 219, Mogaji V. Odofin (1978) 4 SC 91, Amakor V. Obiefuna (1974) 3 SC 67; that the evaluation of facts by the lower Court conveniently touch on the issues raised above which ordinarily require prima facie evidence; that the status of Exhibit ‘B’ as attached to the Counter-Affidavit of the 6th Respondent is of interest for-

(a) It is not in dispute that the 1st Appellant made Exhibit B, which was not made an issue in the lower Court otherwise a plea of Non-Est-Factum would have been made, and would have necessitated the plea of fraud, citing Egbase V. Oriareghan (1985) 2 NWLR (pt. 10) 884;

(b) It is not also in the dispute that the parcel of land subject matter of Exhibit ‘B’ relates to the land subject matter of Suit No. HCT/38/86, and the law is that a person who claims to have divested interest whether by sale or grant in a parcel of land can no longer maintain an action on the land, at worse the Respondent becomes a license on the parcel of land ipso-facto, citing Ige & ors V. Farinde (1994) 7-8 SCNJ 284.

(c) The lower Court made a finding on this vide Exhibit C of the Further Counter-Affidavit vis-Ã -vis Exhibit K of the Further and Better Affidavit No.3, and the law remains that sale of land by family head, even if, without the concurrence of other family members is not void but only voidable, citing Salaku & ors V. Dosunmu (1997) 7 SCNJ 278.

(d) From the Affidavit evidence before the lower Court, there is a presumption of a re-purchase in favour of the 6th Respondent and this in essence was the finding of the lower Court.

In the Appellants’ Reply Brief to the 6th Respondent’ Brief, it was conceded that the standard of proof required of the Appellants in the committal proceedings culminating in this appeal is proof beyond reasonable doubt, however, it was submitted that the Appellants proved the commission of the crime beyond reasonable doubt, and the burden of proving reasonable doubt is shifted to the Respondents in line with Section 138 (3) of the Evidence Act, citing Akinyemi V. The State (1999) 6 NWLR (pt. 607) 449.

This appeal is easily resolved, which is why I have set out Affidavit evidence and arguments canvassed by the parties in some detail, because underneath all that deluge of facts, accusations and counter-accusations in the main Affidavit; Further and Better Affidavits [1], [2], & [3]; Counter-Affidavits; Further Counter-Affidavit; Exhibits ‘A’ to ‘K’ presented by the Appellants; and Exhibits ‘A’ ‘A1’ – ‘C’ put forward by the 6th Respondent, the clear-cut question the lower Court had to find an answer to was whether the Appellants had proved their allegation of contempt of Court against the Respondents – beyond reasonable doubt. Proof beyond reasonable doubt is the standard of proof that is demanded in criminal matters, and a trial for contempt of Court is in the nature of a trial, and the onus is therefore on the Applicant for contempt proceedings to prove the guilt of the Respondent beyond reasonable doubt – see Grema V. Janyun (2001) 6 NWLR (Pt. 709) 414 & Alesinloye V. Oyediran (1999) 12 NWLR (Pt. 631) 481, wherein it was held-

“It must be noted that in a contempt proceedings for disobedience of Court Order, the proceedings is quasi criminal and the standard of proof required is not that of balance of probabilities but proof beyond reasonable doubt – the liberty of the person(s) being at stake”.

The law requires that the facts on which the Applicant relies on in committal proceedings must be strictly proved – see Abbelles V. Gbadamosi (2003) 13 NWLR (Pt. 838) 512 & Ojeme V. Momodu II (supra). To this end, an Applicant for committal proceedings must exhibit the order of Court allegedly flouted by the Respondent, because a Judgment sought to be enforced by committal proceedings must contain a positive order, which can be a subject of a breach to warrant the proceedings – see Alesinloye V. Oyediran (supra). In this case, the Order of Court allegedly flouted reads as follows –

“I order a perpetual injunction against the 1st – 7th Defendants, their servants, agents, or assigns from further committing acts of trespass on the land in dispute. For the avoidance of doubt, in the final analysis I found that the Defendants are neither owners nor possessors, that they are therefore restrained perpetually as I said above”.

The Appellants did not sue the Defendants perpetually restrained by the above Order in Suit No. HCT/38/86; they sued the Respondents, whom they alleged are Privies and Agents of the said Defendants for flouting the Order – a fact that had to be strictly proved by them. Did they succeed is the Issue.

In a criminal case, where the issue of preponderance of evidence does not really arise, the question is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed, and if there is and it is believed by the trial Judge, that is the end of the matter – see Ibrahim V. State (1991) 4 NWLR (pt. 186) 399 SC & State V. Onyeukwu (2004) 14 NWLR (pt. 893) 340. Evaluation of evidence involves the assessment of evidence so as to give value or quality to it, and there must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – see Alake V. State (1992) 9 NWLR (pt. 265) 260 SC. In this case, I have to agree with the 6th Appellant that the lower Court did not need to address the extraneous matters it strayed into in this case, because all that is required is proof beyond reasonable doubt, and it is trite law that any doubts created must be resolved in favour of the Respondents. The 6th Respondent in particular appears to have punctured holes in the Appellants’ case against the Respondents, when she protested vehemently and presented evidence to show that she derived her title to the land she is occupying from both the Ikumoworo Family of Isheri and the 1st Appellant, who denied her claim but with the overwhelming evidence against him, it is not surprising that the lower Court did not believe him, rather it believed her. The documentary evidence of the Agreement between the 1st Appellant and 6th Respondent and the photographs – Exhibits ‘A’ and ‘A1’ – were enough to knock the bottom off the case of the Appellants. The learned trial Judge may have allowed himself to be carried away by a flood of needless particulars, but when it came down to the nitty-gritty of it all, he was vehement that the Appellants failed to make out their case; see page 188 where he observed –

“It is also observed that there is no averment in the plethora of Affidavits, Counter Affidavits and Further and Better Affidavits that all or any of the Defendants in Suit No. HCT/38/86 through whom the Respondents are being alleged to be in possession of the parcel of land covered by the Power of Attorney, a fact which is not conceded, is dead. The presumption therefore, is that they are all alive. And if that is so, why did the Applicants not proceed against them? Why jump over these Defendants through whom it is being alleged the respondents came into possession? The consequences of this wrong proceedings is that any evidence which might have been against the actual contemptuous (sic) cannot be used against the Respondents who were not primary offenders”.

Findings on primary facts are matters within the province of the Court of trial and there is a reputable presumption that a Judge’s findings and conclusions on the facts are correct. It is only where a trial Judge fails to properly examine and evaluate the evidence before the Court that the duty of an appellate Court to interfere with any improper findings or correct any erroneous conclusions will come into play – see Sanni V. State (1993) 4 NWLR (Pt. 285) 99 & Nwankwoala V. State (2005) 12 NWLR (pt. 940) 637. In this case, there is no reason at all to interfere with the findings and conclusions of the learned trial Judge, in my view, they cannot be faulted. His findings on the photographs exhibited by the 6th Respondent are quite illustrative and capture the utter lack of merit in the Appellants’ case. Exhibits ‘A’ does not in any way portray the situation described by the 1st Appellant in paragraph 9 of the “Further and Better Affidavit [No.2] that the photograph was “taken at the instance of the 6th Respondent and without my consent when she stormed my palace with her thugs”. Exhibit ‘A’ certainly does not look like anyone stormed anywhere and there is no picture of any thugs, as the learned trial Judge observed, the photographs show people in a relaxed mood, and smiling with the 6th Respondent besides the 1st Appellant. Obviously, these findings raise serious doubts in the case of the Appellants, and the law is clear that they must be resolved in favour of the Respondents. The Appellants failed to prove their case against the Respondents beyond reasonable doubt and the end result is that the appeal lacks merit. It fails and is hereby dismissed.

The Respondents are awarded costs of N5, 000.00.

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Other Citations: (2007)LCN/2346(CA)