HART V. HART

• Pages: 184-200

HART V. HART

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184

HART V. HART

LOUIS B. EZEKIEL HART

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CHIEF GEORGE EZEKIEL HART

SUPREME COURT OF NIGERIA

UWAIS,

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J.S.C.

BELGORE,

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J.S.C.

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AGBAJE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,

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J.S.C.

2nd February, 1990.

APPELLANT

RESPONDENT

SUIT NO. SC. 52/1983

!O

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Practice and Procedure - Judgment - Execution - Proper procedure - Contempt of Court -

Criminal and Civil contempt - When committed - Committal proceedings - When

necessary - 5.71, Sheriffs and Civil Process Law - Appeals - Issues not raised in lower

court - Propriety of raising it in the Supreme Court.

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ISSUES:

1.

What would constitute contempt of court?

2.

What is the proper procedure to oe adopted against a party who has failed to

carry out the order of a court?

3.

Whether a party can raise an issue in the supreme court which was never raised

in the lower court?

FACTS:

The respondent, Chief G.I Ezekiel Hart who was the plaintiff in the trial court sued

James E.P Hart in the High Court of Rivers State claiming a declaration that he is

entitled to the possession or custody and control of all property real and personal

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of the said Chief Ezekiel Hart (deceased), delivery up to the plaintiff by the defendant

of the keys of the family house at Bonny and of the family house at 41 creek road

Port Harcourt, delivery of the Deed Box containing deeds, indentures or instruments

in respect of 41 Creek Road. He also claimed two thousand Naira. (N2,000.00) as

general damages for the detention of the said keys, property instruments, despite

demands.

At the end of proceedings, Judgment was given at the High Court in the

plaintiff/respondent's favour.

Aggrieved by the Judgment of the trial court, the defendant appealed to the Court

of Appeal while the plaintiff cross- appealed. The Defendant appeal was dismissed

while the plaintiff's cross-appeal for refusal to grant him N2,000.00 general damages

for detinue was allowed.

Still dissatisfied with the judgment of the Court of Appeal, the defendants filed

Notice of Appeal to the Supreme Court. While the appeal was pending, the plaintiff

commenced contempt proceedings against the defendant at the High Court. The

High Court granted more time to the defendants in order to enable them to comply

with the terms of the judgment. The defendants still failed to comply and were

committed to the prison until they complied.

The appellant appealed to the Court of Appeal against the order of committal.

The Court of Appeal dismissed his appeal holding that the appellant was in contempt

of court when he refused to vacate the three rooms he was occupying in one of the

houses after the judgment of the Court of Appeal in the substantive suit.

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NIGERIAN SUPREME COURT CASES

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[1990] 1 N.S.C.C.

The appellant, still aggrieved appealed to the Supreme Court.

HELD:

1.

That contempt of court is either criminal or civil. It is criminal when it consists of

interference with the administration of law thus impeding and preventing the

course of justice; it is civil when it consists of disobedience to the judgments, 5

orders or other processes of the court resulting or involving private injury.

In the instant case, the court gave an order for the appellant to deliver up to the

respondent the keys of the family houses at Bonny and the family house at 41

creek Road, Port Harcourt. Thus, from the date the judgment was given, he was

fully bound by it. when he refused to comply with the order, he became a 10

trespasser in No. 41 Creek Road as regards the three rooms he unlawfully

continued to occupy.

2.

It is contempt to disobey a judgment or order for the giving up of possession of

land and such order can be enforced by means of a committal. Where an

individual is enjoined by an order of the court to do or to refrain from doing a 15

particular act he has a duty to carry out that order. The court has a duty to commit

that individual for contempt of its orders where he deliberately fails to carry out

such orders. S. 71 of the Sheriffs and Civil Process Law, Cap 118, Laws of old

Eastern Nigeria, applicable to Rivers State provides that a party who fails to

comply with the order of a court may be committed to prison and detained in 20

custody until he has obeyed the order. The judgment creditor will also issue a

copy of the order endorsed with a Notice in Form 48 and the endorsed copy shall

be served on the judgment debtor. If the judgment debtor still fails to obey the

order, the registrar, on the application of the judgment creditor, shall issue a notice

in form 49, not less that two clear days after service of the endorsed copy of the 25

order.

In the instant case, a copy of the orders of Pepple J as modified by the Court of

Appeal endorsed with a notice in Form 48 of the Judgment (enforcement) Rules

was served on the defendant/appellant under order 9 Rule 13(1) of the rules. Later

when it appeared to the plaintiff/respondent that the defendant/appellant failed 30

to obey the order in question, the former caused a notice in form 49 of the rules

to be issued and served on the latter. The plaintiff/respondent has, therefore,

followed a correct procedure in the initiation of committal proceedings against

the defendant/appellant under s. 71 of the Sheriff and Civil Process Law.

3.

A part cannot raise an issue for the first time in the Supreme Court. If this happens, 35

it will be struck out. In the instant case, ground 2 of the grounds of appeal was

struck out because the issue was raised for the first time in the Supreme Court.

This is provided for by Order 8 Rule 2 (5) of the Supreme Court Rules, 1985.

[As to

determining whether a party is in contempt of court,

see

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Atake v. A.G. of Federation & Anor.

[1982] N.S.C.0 (Vol. 13) page 444.

Awosanya v. Board of Customs and Excise

[1975] N.S.C.C. [Vol.9] 70.

Olufodun & Ors. v. Toye & Ors.

[1972] N.S.C.C. [Vol. 7] 669.

Deduwa & Ors. v. The State

[1975] N.S.C.C. [Vol.9] 33.]

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[As to

whether issues not raised in the lower court can be raised on appeal,

see

Yakassai v. Incar Motors (Nig.) Ltd.

[1975] N.S.C.C. [Vol.9] 284.

British India Gen. Ins.

Co.

(Nig.) Ltd. v. Thawardas

[1978] N.S.C.C. [Vol.11] 205.

Orogan & Ors v. Soremekun & Ors.

[1986] N.S.C.C. [Vol. 17] (pt.11) 1231.]

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[As to

whether the plaintiff/respondent employed the correct procedure in

bringing the Defendant/Appellant to court for committal,

see

Atake v. A.G.

Federation & Anor.

[1982] N.S.C.C. [Vol. 13].]

CASES REFERRED TO IN JUDGMENT:

1.

ldika and Ors v. Ebiri and Ors.

(1988) 55 S.C.N.J. 28.