Salami Olufodun & Ors. V. Timothy Toye & Ors. (1972)
LawGlobal-Hub Lead Judgment Report
T. O. ELIAS, C.J.N.
This is an appeal from the judgment of the Western State Court of Appeal in suit No. CAW/45/70 delivered on 21st May, 1970, in which an order made by Abina J., at the Ijebu-Ode High Court committing the defendants to prison custody for contempt, was set aside and the defendants were discharged from the committal order.
The facts of this case are as follows. The plaintiffs instituted this action in a representative capacity against the defendants also in a representative capacity for the following claims:-
“1. Declaration of title according to native law and custom to all that piece or parcel of land at Ita Ale, Ago-Iwoye.
- An order that the defendants/respondents shall remove the structure which they erected on the land in dispute in possession of the plaintiff.
- Injunction restraining the defendants, their servants and/or agents, other Sango worshippers from further acts of trespass on the said land in dispute.”
The case was adjourned to 4th May, 1970 for mention after pleadings had been ordered. When, however, on 20th October, 1969, the plaintiffs discovered that the defendants by their servants and agents had commenced laying foundation for an extension of a mud structure standing at the entrance of their mosque on the land in dispute, they filed a motion for an interim injunction, supported by an affidavit. The defendants also filed a counter-affidavit. After due consideration, the learned judge, on 20th November, 1969, made the following order:-
“I order on this application that pending the determination of this case the defendants, their servants, agents or other Sango worshippers, which they represent are hereby restrained from further building or carrying out any further extension of their building on the land in dispute, the subject-matter of the action.”
It was when the defendants violated this order that they were brought to court for committal for contempt. The learned judge rejected the plea of the defendants that they were not the proper persons to have been sued, in these words:-
“They have been appearing in court as such. They made no protest in the proper manner and at the proper time that they were not competent to represent the class which it was sought to make them represent, or that for other reasons they were not the proper persons to be named as defendants in the action, in which case, they would have applied for the title of the writ to be amended in their favour. They did nothing of the kind. They appeared in court on the return day of the writ, not on protest, and pleadings were ordered. They defended the motion for interim injunction in that capacity also. An order was made against them. They cannot now with propriety say that they are not the proper persons to represent the class-the Sango worshippers, Ago-Iwoye. It is abundantly clear on the authority of the case of Bulai and anor. v. Omoyajowe (1958) N.M.L.R. page 160, that the defendants/respondents cannot at this stage repudiate the capacity they have accepted since the inception of the case and in which capacity they all swore to a counter-affidavit in the motion for interim injunction, claiming the land in dispute for the class they represent.”
The learned judge then made the following observation:-
“After a careful consideration of the affidavit and counter affidavit for and against this motion and sober reflection on the submission of learned counsel on both sides in a calm spirit, coupled with due regard to the events leading up to the making of the order of the 20th November, 1969, I am quite clear in my mind that the plaintiffs/ applicants in fact warned the defendants/respondents to desist from the step they were taking in relation to the violation of the said order, but the defendants/respondents despite the timely warning engaged workers, and through them deliberately flouted the order of court of the 20th November, 1969 in a rather contemptuous manner by doing exactly what they were prohibited to do.”
After weighing the evidence before him on the question as to whether to commit or merely to grant an injunction, the learned judge decided to commit all the four to prison for 14 days in the first instance for contempt of the order of 20th November, 1969 “until each of them is purged of his or her contempt.” This new order dated 26th March, 1970 was to be reviewed on 9th April, 1970. When the matter came up in due course on 9th April, 1970, and it was established that the order of 20th November, 1969 had still not been complied with, a further order was made against the defendants committing them to prison for an indefinite period. Against this order of 9th April, 1970 the defendants appealed to the Western State Court of Appeal on the following grounds:-
“1. That the learned trial judge based his ruling on the preliminary objections on irrelevant issues and misconception of law.
- That the order is wrong in law as it is based on irregular process of law.
- That the learned trial judge erred in law when he held that section 54 of the Sheriffs and Civil Process Law Cap. 116 and the Rules made thereunder are not applicable to the procedure in this matter.
- That the order is unwarranted and unreasonable as the applicants did not prove the allegations against the respondents/ appellants in the strict sense of justice (strictissimi juris).
- That there is a miscarriage of justice as the court rejected and/or did not consider the evidence adduced by the appellants on the process of reconciliation set in motion between the parties.”
Chief Okenla, learned counsel for the appellants, filed an application for an:-
(i) Order enlarging time within which an application for leave to appeal be brought.
(ii) Order granting leave to appeal.
(iii) Order discharging the defendants/applicants or admitting them on bailor staying order of committal pending appeal.”
Mr. Olutunfese, learned counsel for the respondents, filed a notice of preliminary objection on three grounds:-
(1) That the application of the defendants/appellants/applicants is not properly before the Court of Appeal as the said appellants/ applicants have failed to obtain the leave of the High Court to appeal to the Court of Appeal against the interlocutory decision of the said High Court committing the applicants to prison for contumacious defiance of the order of the said Court.
(2) That the application to the Court of Appeal for bail or stay of the order of committal pending the determination of the appeal lodged is misconceived as the appeal of the applicants has not been entered in the case list of the Court of Appeal in accordance with Order 7, rules 12(2) and 19.
(3) The respondents by their counsel will contend by way of objection that whilst the applicants are in contempt of the order of the High Court they cannot be heard to appeal from the order made in this cause. ”
The third ground is that, while the applicants could appeal against the order committing them to prison, they could not appeal against the remand in custody by the court. Chief Okenla contended that the decision is final and not interlocutory; he, therefore, withdrew prayers 1 and 2, both of which were struck out. Mr. Olutunfese pointed out that the order complained of was not exhibited to the applicants’ affidavit.
When counsel for the appellants told the Court of Appeal by motion on notice that its order made 13th May, 1970 asking for the necessary proceedings and orders made in respect of the committal to prison of the applicants had not been duly attended to by the High Court, Ijebu-Ode, the Court of Appeal decided to admit the applicants to bail pending the hearing and determination of the application. On the due receipt of the certified true copies of the proceedings in the Ijebu-Ode High Court, the Western State Court of Appeal ruled that the appeal be heard.
As Chief Okenla, learned counsel for the appellants, then began to refer to the 5 grounds of appeal, Mr. Olutunfese, learned counsel for the respondents, objected to grounds 1 and 2 for the reason that the error in law mentioned therein was not specified the objection was upheld an grounds 1 and 2 were struck out by the Court.
Because of the relevance of the subsequent proceedings before the appeal court to the determination of the appeal as a whole, we reproduce the record which reads thus:-
“Court to Olutunfese:-
Are the photographs exhibits A, B and C tendered in the proceedings admissible Olutunfese refers to section 93(4) of the Evidence Act- He agrees that the photographs exhibits A, B and C are admissible.
Any evidence that the defendants did anything Refers to paragraphs 8-11 plaintiffs’ affidavit dated 26th January, 1970 paragraphs 4 and 19 of counter-affidavit by the defendants. Olutunfese agrees that there was no evidence to support the allegations contained in plaintiffs’ affidavit which allegations were denied by the defendants in their counter-affidavit.”
The Western State Court of Appeal then proceeded to deliver the following judgment:-
“This appeal must succeed. There is no evidence whatsoever before the learned trial judge to determine who flouted his order, assuming the order was flouted. The order of the learned trial judge committing the appellants into custody cannot stand and it is hereby set aside.
The appellants are discharged from the order of committal.
For the avoidance of doubt this judgment does not affect the order of injunction made by the learned trial judge. All the orders of the learned trial judge dealing with the committal to prison of the defendants or bail therefore are set aside.
Appellants are awarded 65 guineas costs.”
From this somewhat cryptic decision the appellants have appealed to this Court on the following grounds:-
“(1) The Court of Appeal erred in law in holding that there is no evidence whatsoever before the learned trial judge to determine who flouted his order assuming the order was flouted when there was affidavit evidence before the trial court by applicants and the respondents.
(2) The Court of Appeal erred in law in not determining despite the submission of counsel for both the appellants and respondents the issue whether the appeal was interlocutory or final before entertaining the appeal.
(3) The Court of Appeal erred in law in holding that there is no evidence whatsoever before the learned trial judge to determine who flouted his order when the applicants knew of the order of interim injunction against them and members of their class and other Sango worshippers and they contested the motion as representives of the Sango worshippers by deposing to affidavit evidence.”
Mr. Olutunfese, learned counsel for the appellants, sought and was granted leave to argue two additional grounds of appeal as follows:-
(4) The Western State Court of Appeal erred in law in calling on counsel for the respondents to justify the committal order of the High Court when the general and accepted presumption of law is that a judgment given by a court of competent jurisdiction is right and valid until the contrary be shown and the burden of showing the contrary is on him who asserts that it is wrong or invalid on the maxim of praesumitur pro negante.
(5) The Western State Court of Appeal erred in law in discharging the defendants from the committal order when the defendants/respondents have not purged themselves of their contempt of the court order. ”
Under ground 2, which learned counsel for the appellants argued first, he submitted that the Western State Court of Appeal was wrong in treating the committal order as a final, and not as an interlocutory order. Our attention was drawn to this passage from Ojora and Ors. v. Odunsi (1964) N.M.L.R. 12, p. 14:-
“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 Udo and others v. Agu and others (2) 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 (3). In short, what we have to determine is whether ‘the rights of the parties’ are finally determined by the order appealed against.”
The relevant observation of Verity C.J. in Blay and Ors. v. Solomon (1947) 12 W.A.C.A. 175, at page 176, is as follows:-
“A number of cases were cited by counsel on each side, bearing upon the distinction between an interlocutory and a final judgment. We find it necessary to refer to but three, all of which were cited in the case of Krakue v. Mensah (1), a case decided by the Full court on this point.
In Standard Discount Co. v. Le Grange (2) Brett L. J. said:-
‘No order, judgment or other proceeding can be final which does not at once affect the status of the parties for whichever side the decision be given.’
In Bozson v. Altrincham Urban District Council (3) in a passage cited with approval by Swinfen Eady, L.J., in M. Isaac and Sons Ltd. v. Salbstein and Anor. (4) Alverstone, L.C.J., said:-
‘It seems to me the real test for determining this question ought to be: does the judgment or order, as made, finally dispose of the rights of the parties
In Ex parte Moore, In Re Faithful (5), Brett, M.R., said:-
‘If the court orders something to be done according to the answer to the enquiries, without any further reference to itself, the judgment is final.
Learned counsel for the appellants next argued ground 4 by submitting that, in putting questions to the respondents as a means of establishing the appellants’ case, as we have indicated earlier, the Western State Court of Appeal had adopted a highly irregular procedure. When we put the Court record to learned counsel for the appellant, he denied ever admitting to that court that there was no evidence to support the allegations contained in the plaintiffs’ affidavit, a reply which we think is consistent with his whole contention throughout this case.
In support of his contention he referred us to Adeosun and ors. v. Babalola and Anor. (1972) 5 S.C. 292, at page 300, where we held it wrong for the Western State Court of Appeal to call upon the respondents to show cause why the appeal should not be allowed, without asking or allowing the appellants to argue their appeal.
Mr. Olutunfese argued grounds 3 and 5 together, contending that as between the appellants’ affidavit and the respondents’ counter-affidavit, the learned trial judge had preferred that of the appellants. The Western State Court of Appeal, he submitted, should not have passed upon the point since it did not allow the appellants to put forward their case and also since that Court did not seem to have considered the affidavit and the counter-affidavit. We think this argument of learned counsel for the appellants is right and we deprecate what appears now to be a fairly common practice for the Court of Appeal to disallow an appellant to argue his appeal while calling upon learned counsel for the respondent only to answer its own questions on some points assumed to be the crucial ones on appeal and thereafter proceedings to judgment without more: See Amusa Tijani Popoola v. Pan African Gas Distributors and 2 Others (S.C. 255/72) delivered on 24th November, 1972.
Chief Okenla, learned counsel for the appellants, while seeking to support the judgment of the Western State Court of Appeal on other grounds, conceded that that Court had, regrettably, made no ruling as to whether or not the learned trial judge’s committal order was final or interlocutory before proceeding to the hearing and disposal of the appeal. He also conceded that as he was never allowed to argue any of the grounds of appeal filed by him, the whole procedure was highly irregular.
We accordingly allow this appeal, and set aside the judgment of the Western State Court of Appeal in Suit No. CA W/45/70 delivered on 21st May, 1970 and the orders made therein as to costs. We assess costs payable to the appellants at 96 guineas in this Court and 30 guineas in the Western State Court of Appeal.
SC.198/1972
