In The Supreme Court of Nigeria

On Friday, the 6th day of April 1990

SC 42/1989

Between

Alhaji Sulaiman Mohammed     ......   Appellants

Saminu Saliu

(For themselves and the entire members of Ado Family)

And

Lasisi Sanusi Olawunmi   .......   Respondents

Tesilimi Sanusi Olawunmi

Alhaji Fatai Balogun

Kehinde Lawal Emiabata

Alhaji Muyibi Balogun

Alhaji Rufai Jubril

Alhaji Adisa Oseni

Momodu Jubril

Alhaji Yinusa Bisiriyu

Mr. Yekini Agbebeji

Mr. Ishawa Tanmilo

Alhaji Jimoh Rashidi

Judgement of the Court

Delivered by

Kayode Eso. J.S.C.

 

The point arising in this appeal could, conveniently be taken to commence from the order made by the Supreme Court on 8th July, 1981. There the Court while dismissing the appeal of the defendants/Appellants made the following remarks -

 

Mr. B.A. Augusto for the appellants did not object to a suggestion by Mr. Abraham Adesanya learned counsel for the Respondents that a plan ought to be filed. We thereupon ordered a plan to be filed. Mr. Augusto also agreed that the injunction granted by the Court should be tied to the plan.

 

It was upon this concession that in dismissing the appeal of the appellants it is ordered that the injunction granted by the trial Court be tied to the area edged red in Plan No. GP/1150 made by G.P. Okusanya as a certified true copy of Plan No. AB 1381 B which was originally made by one A.B. Apatira licensed surveyor on 13th August, 1962.

 

With this order incorporated as part of the judgment of the trial court, the appeal of the appellants is hereby dismissed.

 

What followed was a complaint that the defendants were, not-withstanding the order, in flagrant disregard of the order of the Supreme Court. An application for committal of these defendants was brought before the Lagos High Court (Fernandez, J.). After hearing the parties, Fernandez,J held -

 

This order was made in Suit No. LD/1213/76 Appeal No. FCA/L/95/78SC/61/1980. It follows therefore that there is a valid order of injunction which is enforceable by committal proceedings. What then are the interference of the Respondents? Paragraphs 4-10 of the affidavit in support give the details of the interference by the Respondents and the reaction of the Applicants. These interferences varies. While some are institution of legal proceedings in Court others are selling and building on the Applicants' land. In proof of these allegations, the Plaintiffs' only Exhibits 7, 8 and 9 attached to the further Affidavit speak directly by showing interference of the Respondents. There is no evidence of any selling or building any part of the Plaintiffs' land before me. The Respondent did not offer any reasonable explanation to Exhibit 7, 8 and 9. Exhibit 7 is a letter from the Lagos State Government in which the State Government informed the Ado Family that the families of Emiabata, Gejere and Gashinbaki on behalf of Odan Family through a Solicitor requested the Government not to pay any compensation to the Ado Family. The letter was dated 25th June, 1984. Exhibit 8 is the letter informing the Badagry Local Government of the appointment and recognition as Bale of Abule Ado Village. Exhibit 9 was a letter asking for similar appointment and recognition of Alhaji Rufai Jubril as Bale of Gejere Town. Gejere Town is within the land of the Applicants. Exhibits 8 and 9 were written on the 12th and 19th December 1985 respectively. These steps as I have earlier said are conclusive acts of contempt and (before and after Forms 48 and 49 were issued and served) which the Applicants put forward without any answer from the Respondents. Though this is a Civil Contempt nonetheless the breach of the order must be proved beyond all reasonable doubt as in criminal prosecution. Thus apart from the Affidavit of both parties there must be further evidence to incriminate him. Conversely the slightest interference once proved is punishable for the requirement is not the gravity of the act but the actual commission of the act. The Respondents therefore committed an act of Contempt as regards Exhibits 7, 8 and 9.I therefore found the Respondents guilty of contempt of the Order of this Court confirmed by Court of Appeal and the Supreme Court in Suit No. LD/1213/76; FCA/L/95/78 and SC.61/1980.

 

Having found the Defendants guilty of contempt and after hearing the learned counsel for the parties on the issue of sentence, the learned Judge suspended the sentence until the Respondents were able to purge them-selves of the following within fourteen days, and that is

 

1.     That the Respondents and their agents move away from the land of Ado Family as shown in Exhibit '1' (i.e. the Plan).

 

2.     The Respondents are hereby ordered to withdraw the letters Exhibits 7, 8 and 9 attached to the affidavit in support dated 20th June, 1986.

 

3.     That the Respondents do produce in Court copies of letters of withdrawal of the said Exhibits 7, 8 and 9 attached to the said Affidavit, and also to confirm to the Recipient of these letters that they have no authority to do what they did in accordance with the Supreme Court Order as aforesaid.

 

He concluded -

 

In default of this purge within the time stipulated, I will pronounce my sentence in accordance with the law taking into consideration the gravity of the offence.

 

In the meantime, the 1st - 12th Respondents are to be on bail in the sum of N1,000.00 (One thousand Naira) and one surety in like sum. Each surety is to undertake to produce the Respondents bailed, by 9 a.m. on the 3rd October, 1988.

 

The Chief Registrar shall have power to approve the sureties. A surety can take two of the accused persons on Bail.

 

This was on 21st September, 1988.

 

An appeal was filed against the decision to the Court of Appeal by a notice dated 26th September, 1988. On 27th September, learned counsel filed notice of motion seeking a stay of any further proceedings pending the determination of -

 

(a)     The Appeal already filed with the Leave of the Lagos High Court No.6 by Hon. Justice E. Akin Fernandez against the Ruling dated 30/6/1988 of the Court by Hon. Justice E. Akin Fernandez.

 

(b)     The Appeal filed against the Rulings/Orders dated 2Oth and 21st September, 1988.

 

These dates have been mentioned above. It is the ruling dated 20th September that extended till 21st September. As for the ruling dated 30th June, " 1988, Fernandez, J., granted leave to appeal. The order was made on 13th September, 1988.

 

On 4th October, 1988, the 8th Respondent came to court and alleged a purge of his contempt. He was there and then cautioned and discharged.

 

As regards the appeal filed in the Court of Appeal, that Court on the application of the appellants granted an interim stay of the orders of the High Court, pending the hearing of the appeal by the Court.

 

Meanwhile on 22nd February, 1989 by a motion for leave to raise a preliminary objection the Respondents' counsel Mr. M.A. Bashua applied to the Court of Appeal seeking -

 

(1)    That the Notice of Appeal filed by the Appellants be dismissed or struck out for the Notice of appeal is in breach of section 25(2)(a) & (3) of the Court of Appeal Act of 1976.

 

(2)    That the Order for leave to appeal granted by Hon. Justice Akin Fernandez dated 13th September 1988 is invalid for the Court lacks jurisdiction to grant the leave:-

 

(a)    the leave granted was against the principles laid down by the Supreme Court in the judgments of these cases:- Tunji Bowaje v. Moses Adediwura (1976) 6 S.C. 143 and Madam Oni Amudipe v. Chief Ogunleye Arijodi (1978) 9 and 10 S.C. 27.

 

(b)    the Notice of Appeal filed against the rulings of 20th and 21st September, 1988 was filed without the leave of the Court hence the Notice is incompetent.

 

(3)    That the suits No. ID/155/82, ID/551/88, ID/1346/87, ID/1201/87 and ID/1416/87 quoted and relied upon in the Grounds of Appeal filed by the Appellants amount to an invitation to the Courts to review the decisions of the Supreme Court in SC. 61/1980 (FCA/L/95/78 dated 8th July, 1981 and SC. 24/1979 (FCA/L/158/77 in violation of section 215 of the Constitution which puts finality on the decision of the Supreme Court.

 

(4)    That the Order for stay of proceedings made by this Honourable Court on 4th October, 1988 be discharged in compliance with the principles set down by the Supreme Court in Mobil Oil (Nig.) Ltd.v. J.O. Agadaigho (1988) 4 S.C.N.J. 174; (1988) 2 N.W.L.R. (Pt.77) 383.

 

(a)     there is no proper appeal pending before this Honourable Court.

 

(b)     the Notice of Appeal offends Order 3 Rule 4(1) & (2) of the Court of Appeal Rules of 1981.

 

The Court of Appeal made a painstaking examination of the issues before it. Adenekan Ademola, J.C.A., delivering the judgment of the Court of Appeal separated the two rulings. In regard to the Order by Fernandez., made on 13th September, 1988, Adenekan Ademola, J.C.A., said that the notice of appeal was filed ever before the Court granted leave to appeal. Of course, the order for leave to appeal could not operate retrospectively. The time within which to file notice to appeal was extended by the Judge. The learned Justice of the Court of Appeal ruled that it was only the Court of Appeal that could enlarge its own time. This cannot be faulted. It is trite that the time to appeal to a Court of Appeal which includes the Supreme Court could only be enlarged by that court. The Court upheld the preliminary objection asraised by Mr. Bashua of counsel.

 

With regard to the ruling dated 20th and 21st September, 1988 Adenekan Ademola, J.C.A.'s view was that there was conviction of the Appellants. It would affect their liberty. That comes under S.220(1)(g)(1) of the 1979 Constitution which provides

 

An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right ..........

 

(i)     "where the liberty of a person is concerned."

 

Again the order of conviction is a final order.

 

It is against the decision of the Court of Appeal that the Appellants have lodged an appeal to this Court relying on four grounds of appeal. In his Brief Mr. M.A. Bashua reduced the issues to three but they are so cornprehensively worded that they cover the grounds of appeal. The issues are best set out in this judgment. They are:

 

Issue One

 

(a)    Did the findings of the trial Judge in the Ruling of 21st September, 1988 bring the trial for contempt of court to a final trial in view of the fact that the Court imposed conditions to be fulfilled, by the respondents, and also suspended further action pending the fulfilment within 14 days of conditions imposed on the Respondents after which the Court would decide what to do, pages B19.

 

(b)    Whether the Court of Appeal in deciding that the Respondents need no leave to appeal in respect of the ruling of 21st September 1988, failed to follow the judicial interpretation made by the Supreme Court on Section 220(i)(g)(ii) of the Constitution in a recent decision in the case of James G. Orubu vs. National Electoral Commission (1988)5 N.W.L.R. (Pt.94) page 323 at 354 per Nnamani J.S.C.

 

Issue Two

 

Whether having held that the High Court had no jurisdiction to grant extension of time to appeal as it did on 13th September1988 and that the appeal so filed was invalid and incompetent, the Court of Appeal ought not to have made consequential orders of striking out the said appeal and all orders made thereon.

 

Issue Three

 

(a)    Was the Court of Appeal right as it did in granting a stay of proceedings simply because it found that the appellants had a right to appeal and had filed such appeal. Alternatively, does the mere filing of an appeal automatically entitle the appellants without more, to a grant of stay of proceedings or execution, without hearing arguments and making a decision on the merits based on principles of law guiding the making of such an order?

 

(b)    Whether the Court of Appeal judicially and judiciously exercised its discretion in granting the stay of proceedings. Whether the action of the Court of Appeal in making the order for stay of proceedings without hearing the respondents, does not constitute a violation of the right of the respondents to fair hearing under Section 33 of the Constitution of the Federal Republic of Nigeria 1979.

 

Mr. Bashua's argument on the first issue was that until the High Court, before whom the contemnors were brought, decided what to do with the contemnors, the matter was not final. Learned counsel said in that Brief that on 4th October 1988, the Court of Appeal granted an interim stay of further proceedings. If the proceedings were final then stay could not be granted. This action must be a contradiction in terms. A findings of guilty is not final as certain conditions had to be fulfilled before the Court decided what to do with the contemnors.

 

As regards the issue of liberty of the subject under S.220 (1)(g)(ii) of the Constitution, it was an error, learned counsel argued, to equate this with appeal without leave as S.220(1)(g)(ii) presupposes that an individual had been wrongly held or illegally deprived of his liberty.

The convicts were not appealing against the conditions imposed upon them but against their conviction. Finally, in this issue, counsel submitted that as a stay of execution presupposes that there is a sentence of the court to be carried out a stay of execution could not have been granted in this case where no sentence has been passed.

 

On Issue 2, learned counsel referred to the decision of the Court of Appeal which declared wrong the order of Fernandez, J., granting extension of time to appeal to the Court of Appeal against a decision of the High Court. Counsel argued that the Court of Appeal having so held ought to have struck out the appeal; that is the appeal lodged against the ruling of 3Oth June, 1988.

 

The third issue raised the question of fair hearing and the complaint was that the Respondents in the Court of Appeal [Appellants in this Court] were not called upon to address the Court whether a stay of further proceedings and stay of execution should or should not be granted. A stay, counsel further submitted, is not automatic.

 

Mr. Adigun Ogunseitan learned counsel for the 1st to 3rd Respondents submitted that once there was a conviction the Respondents' fate was sealed and only an appeal court could, after that, intervene. He contended that the order was final. Again Respondents could only be convicted once.

 

Mr. Oyagbola represented the 4th, 5th, 6th, 7th 9th and 12th Respondents, contended on the first issue that once there is a conviction, there is a change in the Respondents' status. He then added -

 

The fact that the High Court suspended this sentence for fourteen days does not render the committal/conviction as interlocutorv.

 

On section 220(1)(g) ii of the 1979 Constitution there is no doubt that the liberty of the Respondents is concerned, and in S.220(1)(g)(ii) the order is one of mandatory injunction.

 

The oral arguments expatiated on the Briefs.

 

I think the real issues for determination herein are as follows -

 

1.    Is the order made by Fernandez, J., on 21st September 1988 to wit-

 

a finding of guilty of contempt against the Respondents followed by an order to suspend sentence until the Respondents were able to purge themselves of contempt by

 

(a)     moving away from the land;

(b)     withdraw letters Exhibits 7, 8, 9 and

(c)     production in court of copies of such letters of withdrawal……..

 

a final or interlocutory order? If it is final then the Respondents could appeal against it as of right, but if interlocutory, they would require leave to appeal.

 

2.     How does the application of S.220(1)(g)(i) & (ii) of the 1979 Constitution affect right of Respondents to appeal as of right or with leave.

 

3.     With regard to the order of the Court made on 30th June, 1988 and the subsequent order made on 13th September, should the appeal against the first order be struck out?

 

These, I think are all the issues. I will take the 3rd issue first. The Court of Appeal held.

 

First, let me take the order of Fernandez, J., made on the 13th of September, 1988 in respect of the ruling dated 30th June, 1988. Clearly, the notice of appeal was filed before the order for leave was granted. This should not be so.

 

The notice of appeal must be filed after leave have been given and within the period prescribed by Act. Any notice filed outside that period must be incompetent; See the decision of this court in Russell V. Russell reported in (1987) 2 N.W.L.R. (Pt.57) at page 437 at page 441. Nor could the period to file such notice be extended by any other court as it was purported to have been done by the learned trial Judge in his order made on the 13th of September, 1988.

 

Therefore the preliminary objection succeeds as regards the purported appeal lodged in respect of the ruling of Fernandez, J., made on the 30th June, 1988.

 

Having held thus the consequential order that should follow is one of striking out the notice of appeal against the ruling made by Fernandez, J., on 30th June, 1988. The Notice of appeal filed against that decision of 30th June, not having been struck out, as it should have been struck out, is hereby, struck out.

 

Now, to the important issues. That is, whether the order of the trial Court made on 21st September was interlocutory or final. There is a serious misconception of the law by both learned counsel and with respect also by the Court of Appeal. The Court of Appeal simply, without any authority or argument, contended that the order is final. All the learned counsel in this case seem to rely on W.A. Omonuwa v. Oshodin & Anor. (1985)2 SC 1; (1985)2 NWLR (Pt.10) 924 SC. Mr. Oyagbola made no reference whatsoever to the case of Akinsanya v. U. B.A. Ltd. (1986) 4 NWLR (Pt.35) 273 where Omonuwa v. Oshodin was exhaustively discussed. Mr. Adigun made no reference to either Omonuwa v. Oshodin or U.B.A. v. Akinsanya. Mr. Bashua made reference to both as authority for the point that the decision was interlocutory without expatiating on the reasons.

 

The first thing to note in Akinsanya v. U. B.A. Ltd. is that the Supreme Court, in that case, made it known tltat Omonuwa v. Oshodin was no authority for decisions of Courts of first instance in regard to whether the dcci- A sion is final or interlocutory.

 

Eso, J.S.C., in that case [See page 290] said -

 

Let me say straight away that I am in full agreement with Chief Williams [learned counsel in that case], that the ratio in Omonuwa v. Oshodin did not touch the age long distinction set tied in this country, between final and interlocutory decision in courts of first instance.

 

What then is the test applicable in the Courts of first instance? The judgment laid it down (p.249) -

 

I have no difficulty in agreeing with Chief Williams at this stage therefore that in this country insofar as the court of first instance is concerned the nature of the order test should be adhered to.

 

If the learned counsel and the Court below have appreciated this, all they would have done is to examine the nature of order made. I have already set this out (supra). The order made has not finally disposed of the matter. The Court is still to wait for fourteen days to determine what final order to make. Upon that alone, subject however to the Constitution, and this is not a matter before us, there is no doubt that the Appellant would require leave to appeal.

 

How about the Constitutional provisions?

 

S. 220(1)(g)(1)

 

An appeal shall lie from the decision of a High Court to the Court of Appeal as of right

 

(i )    Where the liberty of a person……is concerned.

 

Is liberty of the Respondents concerned herein.

 

That is the question. They were, after the order, though convicts, still free, awaiting the final order of the Court to be made after 14 days. The Judge would not determine on their liberty vel non until that period of 14 days!

 

S. 220(J) (g) (ii)

 

where an injunction……is granted or refused." What is the injunction granted here? The answer is None. What has happened is that the Judge convicted the Respondents, and suspended sentence for 14 days. If and it is if the Respondents and the agents move away from the land, withdraw Exhibits 7, 8 and 9 and produce the withdrawal in court, the trial court might be favourably influenced towards the Respondents in passing sentence. I do not think that is granting or refusing an injunction. The original judgment which went up to the Supreme Court was one of injunction, not the order of Fernandez, J., made on 21st September.

 

On the whole, save for the fact that the notice of appeal against the order of 30th June, 1986 is struck out the appeal is allowed, the Respondents require leave to appeal to the Court of Appeal. They have failed to obtain leave and therefore there is no appeal before the Court of Appeal. The order of the Court of Appeal is hereby set aside, and the notice of appeal filed is hereby struck out.

The Appellants are entitled to costs in this Court assessed at N500.00 and in the Court of Appeal assessed at N 400.00.

 

 

Judgement delivered by

Obaseki. J.S.C.

 

I have had the privilege of a preview of the judgment delivered a short while ago by my learned brother, Eso, J.S.C. I agree with him and adopt his opinions on all the issues for determination in this appeal as my own.

 

The respondents in this matter were at the High Court convicted of civil contempt when they flagrantly disobeyed the order of injunction made by the court. But no sentence was passed. The issues for determination in this appeal are:

 

1.     Is the order made by Fernandez, J., on 21st September, 1988 to wit -

 

a finding of guilty of contempt against the respondents followed by an order to suspend sentence until the respondents were able to purge themselves of contempt by

 

(a)    moving away from the land

(b)    withdraw letters Exhibits 7, 8, and 9; and

(c)    production in court of copies of such letters of withdrawal………..

 

a final or interlocutory order. If it is final, then the respondents could appeal against it as of right but if interlocutory, they would require leave to appeal.

 

2.     How does the application of section 220(1)(g)(i) and (ii) of the 1979 Constitution affect right of respondents to appeal as of right or with leave;

 

3.     With regard to the order of the court made on 30th June, 1988 and the subsequent order of 13th September should the appeal against the first order be struck out.

 

Before examining these issues, it is necessary to refer briefly, howbeit, to the historical sequence of the progress of the proceedings from the date of conviction which was 21st September, 1988. It is on record that 'sentence was suspended’ but as I consider that this statement does not correctly represent what happened, I would say that the case was adjourned for sentence to be pronounced. This is because no sentence was passed and the court in that event suspended no sentence. This is clear from the order made by the learned trial Judge which reads:

 

1.     That the respondents, their agents move away from the land of Ado family as shown in Exhibit '1' (i;e. the Plan).

 

2.     The respondents are hereby ordered to withdraw the letters Exhibits 7, 8 and 9 attached to the affidavit in support dated 20th June, 1986;

 

3.     That the respondents do produce in court copies of letters of withdrawal of the said Exhibits 7,8 and 9 attached to the said affidavit, and also to confirm to the recipient of these letters that they have no authority to do what they did in accordance with the Supreme Court order as aforesaid.

 

In default of this purge within the time stipulated I will pronounce my sentence in accordance with the law taking into consideration the gravity of the offence.

 

In the meantime, the 1st to 12th respondents are to be on bail in the sum of N l,000.00 (one thousand Naira) and one surety in like sum. Each surety is to undertake to produce the respondents bailed by 9 a.m. on the 3rd October, 1988.

 

The Chief Registrar shall have power to approve the sureties. A surety can take two of the accused persons on bail.

 

The respondents appealed against this decision by a notice of appeal dated 26th September, 1988. On the 27th September, i.e. the following day, learned counsel on their behalf filed a notice of motion seeking a stay of any further proceedings pending determination of

 

(a) the appeal already filed with the leave (of Lagos High Court No.6) by Hon. Justice E. Akin Fernandez against the Ruling dated 30/6/88 of the court by Hon. Justice E. Akin Fernandez.

 

(b) The appeal filed against the orders dated 20th and 21st September, 1988.

 

Leave to appeal against the order/ruling dated 30th June, 1988 was granted by Fernandez, J., on the 13th day of September, 1988. On the 4th of October, 1988, the 8th respondent came to and appeared before the court and alleged a purge of his contempt. He was there and then cautioned and discharged.

 

In view of the appeal pending in the Court of Appeal, that Court, on the application of the appellants therein, granted an interim stay of the orders of the High Court pending the hearing of the appeal by the court. To that appeal, the respondents' counsel, Mr. M.A. Bashua, by motion on notice, sought and obtained leave to raise a preliminary objection wherein he objected and applied.

 

1.     that the Notice of Appeal filed by the appellants be dismissed or struck out for being filed in breach of section 25(2)(a) and (3) of the Court of Appeal Act of 1976;

 

2.     That the order for leave to appeal granted by Hon. Justice Akin Fernandez dated 13th September, 1988 is invalid for the court lacks the jurisdiction to grant the leave;

 

(a)     the leave granted was against the principles laid down by the Supreme Court in the judgments of these cases:-

          Tunji Bowaje v. Moses Adediwura (1976) 6 SC. 143; and Madam Oni Amudipe V. Chief Ogunleye Arijodi (1978)9 & 1OSC.27.

 

(b)   The notice of appeal filed against the Rulings of 20th and 21st September, 1988 was filed without the leave of the court hence the notice is incompetent.

 

3.     That the suits No. ID/155/82; 1D/551/88; ID/1346/87; 1D/1201/87 and ID/1416/87 quoted and relied upon the grounds of appeal filed by the appellants amount to an invitation to the courts to review the decisions of the Supreme Court in SC.61/1980 (FCA/L/95/78) dated 8th July, 1981 and SC.24/1979 (FCA/L/158/77) in violation of section 215 of the Constitution which puts finality on the decision of the Supreme Court.

 

4       That the order for stay of proceedings made by this Honourable Court on 4th October, 1988 be discharged in compliance with the principles set down by the Supreme Court in Mobil Oil (Nig.) Ltd. v. J.O. Agadaigho (1988) 4 SCNJ 174; (1988) 2 N.W.L.R. (Pt.77) 383.

 

(a)     there is no proper appeal pending before this Honourable Court;

 

(b)     The notice of appeal offends Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 1981."

 

In regard to the order made on 13th September by Fernandez, J., granting leave to appeal, the court upheld the preliminary objection as raised by Mr. Bashua, counsel to the respondents, the grounds being that

 

(i)     the Notice of Appeal was filed before the court granted leave;

 

(ii)     the time within which to file Notice of Appeal was extended by the Judge which the Judge had no jurisdiction to do as such jurisdiction is vested only in the court to which appeal lay, i.e. either the Court of Appeal or the Supreme Court.

 

With regard to the Rulings dated 20th and 21st September, 1988, the Court of Appeal (per Ademola, J C. A.) held that there was a conviction and that the order of conviction was a final order and that the appellants could appeal as of right since it comes within the provision in section 220(1)(g)(1) of the Constitution -

 

decisions made or given by the High Court where the liberty of a person is concerned or the custody of an infant is concerned.

 

It is against the decision of the Court of Appeal that the appellants have now brought this appeal to this Court relying on four grounds of appeal.

 

Three main issues were formulated by the appellants as questions raised determination in this appeal. The issues formulated by my learned brother, Kayode Eso, J.S.C., which I set out earlier bring the questions for determination into sharper and better focus.

 

The first question to be asked is as regards the leave granted. What was the purpose of the leave granted? If it is to enable the appellants to appeal on questions other than questions of law alone, the application was proper. But as the time in which to apply for the leave had expired, the High Court had no jurisdiction to grant the extension of time to apply for leave. It has no jurisdiction to grant leave after expiration of the time in which to appeal and it has no jurisdiction to extend time in which to appeal or file notice of ap peal. See Section 221(1) and (2) of the 1979 Constitution and the Court of Appeal Act 1976 section 25(4). Whatever the circumstances, the notice of appeal filed to initiate the appeal and appeal itself must be struck out and it is hereby struck out.

 

With regard to the conviction, is the order of conviction interlocutory or final? If it is final, the contemnors can, by virtue of section 220(1)(a) of the 1979 Constitution, appeal as of right If it is interlocutory, they can only appeal as of right if the ground of appeal involves questions of law alone (see section 220(1)(b) of the 1979 Constitution). If the grounds of appeal involve questions other than questions of law alone, leave of the High Court or the Court of Appeal is necessary and leave not having been obtained, the appeal is incompetent.

 

I have to examine the grounds of appeal to determine whether they involve questions of law alone or questions of mixed law and facts. To determine whether the order of conviction was final or interlocutory, the nature of the order is the predominant factor.

 

If the order finally determines the rights of the parties, it is final. If it does not, the order is interlocutory. In this case the question of sentence which is an integral part of the process of adjudication in contempt cases has yet to be decided and passed. As I said earlier, sentence was not suspended. It had not been passed to be suspended. The case was merely adjourned to give opportunity to the contemnors to produce evidence to show that they had purged their contempt before deciding what sentence to pass. The conviction at that stage is interlocutory, the trial had not been concluded.

 

Being interlocutory, the times ordered by the Rules or Act in which to appeal is severely reduced and limited to 14 days. If there is an appeal within the 14 days and the ground of appeal involves question of law alone, the appeal is competent as the Constitution enables the appellant to appeal as of right in such circumstances. (See section 220(1)(b) of the 1979 Constitution).

 

If the grounds of appeal involve questions of fact or questions of mixed law and fact, the appeal can only be competent if the appellants obtained the leave of either the High Court or the Court of Appeal to appeal on those grounds. (see section 221(1) of the 1979 Constitution).

 

If there are many grounds of appeal filed and only one of the grounds is a ground of law alone, that ground is sufficient to sustain the appeal if no leave is obtained. The other grounds are incompetent and will be struck out.

 

However, these are not the issues argued before this Court. They were not the points of contentions before the Court of Appeal. Before the Court of Appeal, it was argued that the appellants needed no leave because they could appeal as of right under section 220(1)(g)(1) of the 1979 Constitution of the Federal Republic of Nigeria which limits the right to decisions made or given by the High Court - where the liberty of a person or custody of an infant is concerned.

 

The matter in the instant appeal has not reached the stage where the liberty of the respondents is concerned. This fact is graphically brought out in the judgment of Ademola, J.C.A., when he said:

 

In so far as such conviction is a final order made by the Judge, there is no denying the fact that the sentence which is to be passed later on the applicants may, in the first place, be term of imprisonment or a monetary fine. In so far as it could affect their liberty, the applicants thus have the right of appeal as of right under section 220(1)(g)(1) of the Constitution of 1979

 

Since sentence has not been passed, there can be no question of the decision (finding respondents guilty of contempt) affecting the liberty of the contemnors and it is premature to appeal under that provision of the Constitution.

 

A conviction is a finding of guilt. It is not an order of incarceration affecting the liberty of the contemnor. It is only a custodial sentence that affects the liberty. In my opinion, the respondents-contemnors have no constitutional right under section 220(1)(g)(1) of the 1979 Constitution to appeal as of right. The decision as stated earlier is interlocutory and not final and whether contemnors can appeal as of right or with leave depends on whether the grounds of appeal are of law alone or of facts or mixed law and fact. Those points have not been argued before us and there has been no respondents' notice to contend that the decision be affirmed on other ground to wit: that the grounds of appeal involve questions of law alone.

 

The appeal succeeds and is allowed. The decision of the Court of Appeal is hereby set aside and the appeal to that Court is struck out.

Costs to the appellants is fixed at N 500.00 in this Court and N 400.00 in the Court of Appeal.

 

 

Judgement delivered by

Belgore. J.S.C.

 

I had the pleasure of reading in advance the lead judgment of my learned brother, Eso, J.S.C. I agree with it and I have nothing to add as he has covered all the grounds I had in mind. I adopt his reasoning and conclusions as mine.

 

 

Judgement delivered by

Nnaemeka-Agu. J.S.C.

 

This is an appeal by the plaintiffs against the ruling of the Court of Appeal, Lagos Division, delivered on the 30th day of January, 1989 In that ruling the Court of Appeal stayed any further proceedings in the Lagos High Court before Fernandez, J., pending the determination by that Court of two appeals, namely:

 

(i)    Appeal against the ruling of Fernandez, J., dated 30/6186; and

 

(ii)   The appeal filed against the ruling/order of the same Judge made on the 20th and 21st of September, 1988.

 

The Court of Appeal found that the order comprising the first of these appeals was made without jurisdiction, but made no consequential order It also granted the stay of further proceedings prayed for and of execution; hence this appeal.

My learned brother, Eso, J. S. C., has admirably set out the facts leading up to this appeal and the issues that arise for determination therein. I do not intend to repeat them.

 

I also agree that as the Court of Appeal, in the lead ruling of Ademola, J.C.A., to which Akpata and Babalakin, JJ.C.A., concurred, came to the conclusion that the ruling of the learned trial Judge of the 30th day of June, 1988, whereby he granted leave and extension of time to appeal to the defendants (respondents herein) after time to appeal had expired was made without jurisdiction and is therefore null and void, the Court should have proceeded to strike out the appeal. This disposes of the second issue in the appeal.

 

I shall now consider the other issues raised by the appeal against the stay of further proceedings and of execution of the contempt proceedings. A very important question is whether there was yet any conviction in the case, as the learned trial Judge merely found that the respondents were in contempt of obedience of the order of injunction granted by this Court and postponed sentence to 14 days hence. if certain conditions were not fulfilled. The respondents, save the 8th who fulfilled the conditions and was cautioned and discharged, all appealed before the 14 days elapsed.

 

Part of the problems in this appeal appears to be that it does not seem to have been realized how equivocal the term "conviction" is and how relevant that equivocation is in this case. In ordinary parlance to convict means simply to find guilty. But in law, a person is "convicted" when he has been found guilty and sentenced for an offence: Burgess v. Boetefeur, 13 L.J.M-C 126; and "sentence" includes ordering the person found guilty to be bound over to enter into recognizance to be of good behaviour or to come for judgment if ,called upon Jephson V. Barker, 3 T.L.R. 40; R. v. Blaby (1894) 2 Q.B. 170. But where, as in this case, a person has been found to be in contempt but the court retains its discretion as to whether or not a committal should be ordered and carried out until the expiration of a fixed period, the court can, when the day arrives, pass a reasonable sentence, or may pass none at all: see – Re. W.(B) (An Infant) (1969)2 Ch.50.

 

Respondents argue that the word "decision" is widely defined in section 277 of the Constitution; that every such decision is appealable under section 220; and so, they had a right to appeal against the decision of the 21st of September. 1988, whereby they were pronounced guilty of contempt of court. Now, "decision" is defined in section 277 of the Constitution as meaning -

 

……in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.

 

Two aspects of this definition appear to me to run counter to the argument of the respondents. First as the section says it is - relevantly - a conviction or a sentence that is an appealable decision. On my view of the meaning of conviction above, that is, that it includes both a finding of guilty and a sentence it follows that there was yet no conviction or a sentence that could be appealed against. Secondly, as the section says, before a decision could be appealable it must amount to a determination. In this case there was yet no determination. In the case of (1972) 2 S.C. 26, where a Judge found the appellant guilty of murder but failed to pass sentence as required by law, this Court, before dismissing the appeal, directed that the matter be brought to the attention of the learned trial Judge with a view to his passing appropriate sentence. The Court took the view that although there was a finding of guilty the conviction was not yet complete according to law. My clear view is that it is not the intendment of the definition that every decision in the progress of a criminal trial that could be appealed against. It is not intended, for an example, that if a Judge decides that a particular piece of evidence was admissible, the person aggrieved by the ruling may halt the proceedings and appeal against the ruling. It is only when there is determination resulting in a conviction (or not) that he can appeal against the conviction and/or sentence. It follows from this state of the law that at the time when, on the 21st of September, 1988, the learned trial Judge found that the appellants were in contempt but retained their sentence for 14 days and made its being passed subject to their non-fulfillment of certain conditions, the proceedings were not yet completed. There was yet no determination. It was yet open to him to discharge them if the conditions were fulfilled. Indeed the 8th defendant fulfilled the conditions and was cautioned and discharged. Hence the conviction was yet inchoate - in the making - on September, 21, 1988.

 

I am of the view that such an order as was made on the 21st of Septernber, 1988, cannot be a final order on the criteria enunciated by this Court in the case of Akinsanya V. U. B.A. Limited (1986) 4 N.W.L.R. (Pt.35) 273. For one thing, one common incidence of all final judgments is that as far as that particular issue or judgment goes, the Judge who decided it becomes functus officio. Conversely, when the order made is such that the Judge undoubtedly shows that he has not yet completed the order/judgment, it cannot be final. Moreover, it appears to me that there is force in the argument of learned counsel for the appellants that the fact that the respondents had to apply for a stay of proceedings, and not a stay of execution, is an admission that the decision was not yet final, it was interlocutory. Leave would be necessary to appeal against it unless it comes under any of the cases created by the Constitution for appeal as of right. Also appeal therefrom should be within 14 days: the instant appeal was filed in six days.

 

I agree that there was no longer any issue of injunction before the court, the final order of injunction having been made by the Supreme Court on the 8th of July, 1981. What was before the court was the disobedience of that order of injunction. Section 220(1)(g) (ii) of the Constitution is, therefore, not relevant.

 

The Court of Appeal proceeded on the premises that the liberty of a person was concerned, and so, the respondents, as appellants, were entitled to appeal as of right under section 220(1)(g)(i) of the Constitution of 1979. The present appellants, as the respondents, contended that no question of liberty of the subject was concerned at all, the matter being a question of a civil contempt and, if the respondents fulfilled the conditions set out by the High Court, there might be no question of committal or imprisonment at all.

 

On the face of the above conflicting stances of the parties it becomes imperative that I must consider the true import of the expression "Liberty of a person" as used in Section 220(1)(g)(i)of the 1979 Constitution. It is not disputed that the application for committal for disobedience to an order of injunction is a proceeding for civil contempt. Nor that such a procedure, although civil in nature, can lead to a committal to prison to compel obedience. Indeed in the present case the respondents, as contemnor, had been found guilty and their sentence postponed by fourteen days within which they would fulfil certain conditions before they would return for appropriate sentence. They were released on bail. That sentence might result in a discharge, a fine, an imprisonment or any other sentence. They had been found guilty of contempt of court but not yet convicted. I believe it is right to say in the circumstances that on the facts, there is only a potential chance of imprisonment. Such cases as those of the contemnors involved in this case differ from those of a person arrested and detained directly, say, for reasons for which they are denied bail. The question, therefore, is: does the provision under section 220(1)(g)(i) apply to the contemnor who are respondents in this case?

 

This question involves a consideration of the principle of interpretation of the Constitution. I believe it is right to say that that provision of the Constitution, like any other, ought to be interpreted on the principle of ut res magis valeat quam pereat - that is liberally. In Nafui Rabiu v. Kano State (1980) 8-11 S.C.130, Udoma, J.S.C., expressed the approach thus:

 

My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.

 

This principle has been followed by this Court in many cases. I intend to apply it in the interpretation of section 220(1)(g)(i) in this case. It appears to me that while the expression "liberty of a person" under that provision includes both a person whose liberty is directly in danger such as one who is imprisoned or detained and refused bail as well as other persons charged with crimes, it does not apply to contemnor in cases of civil contempt until they have been convicted and the proceedings against them determined. So the respondents in this case could not claim a right of appeal as of right under section 220(1)(g)(i) of the Constitution, the court of appeal was in error to have held that they had that right.

 

I also believe that the respondents have no answer to the appellants complaint of breach of the rule of fair hearing and rules of procedure. The gist of the complaint is that the Court of Appeal merely dismissed the preliminary objection raised before it by the appellants and, without considering the application for stay on the merits, granted it. In my respectful opinion, this was in error. It is not correct, as the respondents contend, that by filing a preliminary objection to the application, the appellants had opted to sink or swim on the result; and so, as the objection failed, the learned Justices of Appeal were right to have granted the application. I am of the clear view that a person who files a preliminary objection does not thereby submit himself to such an option. Rather, by the preliminary objection, he is saying that the suit or motion before the court ought not be heard at all because it is incompetent or is bedevilled by some other fundamental vice. If the court, by its ruling, decides that the objection is not well-founded, that does not necessarily mean that the suit or motion before the court must succeed. The court is then bound to consider the suit or motion on its merits. The court is quite capable of coming to the conclusion that although the preliminary objection fails, the suit or motion also fails on the merits, depending upon the materials put before the court. Now the principles upon which a court can grant a stay of execution or a stay of proceedings are perfectly settled. None can be granted unless some special circumstances have been shown. Also, although an appellate court has an undoubted power and discretion to grant either of them, that discretion must always be exercised judicially and judiciously. See on these: Okafor v. Nnaife (1987) 4 N.W.L.R. (Pt.64) l29) at 136. Whether, in the instant case, the necessary materials were placed before the court, whether any special circumstances were shown, and whether the undoubted discretion of the Court of Appeal was exercised judicially and judiciously will ever remain unknown. Above all it is equally settled that the right to fair hearing entrenched in section 33(1) of the 1979 Constitution also entails not only hearing a party on any issue which could be resolved to his prejudice but also ensuring that the hearing is fair and in accordance with the twin pillars of justice, namely: audi alteram partem and nemo judex in causa sua. When the application was granted without a hearing at all the appellants were entitled to complain that they were not given a hearing; much less a fair one.

 

On the last issue, 1 would have remitted the appeal for a retrial before another panel of the Court. But because of the view I have expressed on their right to appeal at all, I must allow the appeal.

For the above reasons and the fuller reasons contained in the judgment of my learned brother, Eso, J.S.C.,which I adopt as my own, I also allow the appeal and set aside the decision of the Court of Appeal. I award N 500.00 costs to the appellants.

 

 

Judgement delivered by

Wali. J.S.C.

 

The appellants applied to the Registrar of High Court of Lagos State to issue Form 48 and to cause the same to be served on the Respondents in respect of Perpetual Injunction granted by the High Court of Lagos State in Suit No. LD/1213/76 which order was confirmed on appeal by the (Federal) Court of Appeal and the Supreme Court in FCA/L/95/'78 and SC.61/1980 respectively. After serving Forrn 48 on the Respondents. they were served with Form 49. Before the hearing of the appellants’ application under Form 49, the Respondents brought an application in which they challenged the appearance of the appellants' solicitor on the ground that he had earlier appeared for Odan Parapo Family. The learned trial Judge, Fernandez in a ruling delivered on 30th June 1988 over-ruled the objection and dismissed the application. About three months thereafter, i.e. on 10th September 1988, Fernandez, J., granted respondents extension of time to appeal against the Ruling of 30th June 1988.

 

Before the grant of extension of time and leave to appeal by the trial court on 10th September 1988 it had already heard arguments on the appellants’ application under Form 49 and adjourned Ruling to 20th September 1988. The Respondents then filed a Motion to arrest the ruling to be delivered by the trial court. Learned Counsel for the respondents demanded that the court should postpone the delivery of the ruling until the motion for the arrest of judgment fixed for 26th September 1988 was heard and disposed of. The learned trial Judge refused to postpone the delivery of the ruling until the disposal of the motion fixed for 26th September 1988 was disposed of, since doing so would render the ruling null and void as it would be delivered outside the statutory period provided. The ruling was delivered on the 21st September 1988 instead of 20th September 1988. The respondents appealed against the ruling of refusing to postpone the delivery of the Ruling and the ruling itself.

 

Before hearing the appeal and on the application of the respondents, the Court of Appeal granted an order for interim stay of further proceedings and stay of execution of the Rulings of 30th June, 1988 and 21st of September 1988 respectively.

 

In the Court of Appeal, learned counsel for the present appellant filed notice of preliminary objection in respect of Notice of appeal on ruling of 30th June 1988 on the ground that it was incompetent as the leave to so appeal was granted without jurisdiction. On the Ruling of 21st September 1988 learned counsel also submitted that the Notice of appeal was incompetent as it was filed without leave of either the trial court or the Court of Appeal as the decision in that Ruling is interlocutory.

 

In the Ruling of the Court of Appeal on the objections supra; Ademola J.C.A. (with whom Akpata and Babalakin JJ.C.A. concurred) he ruled as follows:

 

First, let me take the order of Fernandez, J., made on the 13th day of September 1988 in respect of the ruling dated 30th June 1988. Clearly the notice of appeal was filed before the order for leave was granted. This should not be so.

 

The notice of appeal must be filed after leave have been given and within the period prescribed by Act. Any notice filed outside the period must be incompetent; see the decision of this court in Russell v. Russel reported in (1987) 2 N.W.L.R. (Pt.57) 437 at page 441. Nor could the period to file such notice be extended by any other court as it was purported to have been done by the learned trial Judge in his order made on the 13th of September 1988.

 

Therefore the preliminary objection succeeds as regards the purported appeal lodged in respect of the ruling of Fernandez, J., made on the 30th June, 1988.

 

In respect of the rulings dated 20th and 21st of September 1988 a different consideration arises ……….

 

On the 21st day of September, the learned Judge made two orders, one in respect of some documents and other things which the learned Counsel for the applicants has stated tantamount to orders of injunction in this case. Without wanting to go into any argument about whether these orders or directions of the judge amounted to injunctions, I would rather let the matter stay as they are. Since on the same day and within the same judgment the learned Judge made an order of conviction of Applicants before him.

 

In so far. as such conviction is a final order made by the Judge, there is no need denying the fact that the sentence which was to be passed later on the applicants may in the first place be term of imprisonment or a monetary fine. In so far as it could affect their liberty the Applicants thus have the right of appeal as of right under section 220(1)(g)(i) of the Constitution of 1979.

 

It is against the Ruling of the Court of Appeal dated 20th January 1989 that the appellants have now appealed to this Court.

 

Learned Counsel on both sides filed and exchanged briefs of argument on which they orally elaborated upon. Issues for determination were formulated by learned counsel in their respective brief. However my learned brother, Eso, J.S.C., in the lead judgment has ably summarised the issues as follows -

 

1.     Is the order made by Fernandez, J., on the 21st September 1988 to wit -

 

a finding of guilty of contempt against the Respondents followed by an order to suspend sentence until the Respondents were able to purge themselves of contempt by

 

(a) moving away from the land;

(b) withdrawal letters Exhibit 7,8,9 and

(c) production in court of copies of such letters of withdrawal………

a final or interlocutory order? If it is final then the Respondents could appeal against it as of right, but if interlocutory, they would require leave to appeal.

 

2.     How does the application of S.200(1)(g)(i) and (ii) of the 1979 Constitution affect right of respondents to appeal as of right or with leave?

 

3.     With regard to the order of the court made on 30th June, 1988 and the subsequent order made on 13th September, should the appeal against the first order be struck out?

 

On the order of Fernandez, J., of 13th September 1988 in respect of the ruling of 30th.June 1988 the Court of appeal held:

 

…….Clearly the notice of appeal was filed before the order for leave was granted. This should not be so.

 

The notice of appeal must be filed after leave have been given and within the period prescribed by Act. Any notice filed outside that period must be incompetent; see the decision of this court in Russell v. Russell reported in (1987)2 N.W.L.R. (Pt.57) 437 at page 441. Nor could the period to file such notice be extended by any other court as it was purported to have been done by the learned trial Judge in his order made on the 13th of September, 1988.

 

Therefore the preliminary objection succeeds as regards the purported appeal lodged in respect of the ruling of Fernandez, J., on the 30thJune 1988.

 

I entirely agree with my learned brother, Eso, J.S.C., when, in regard to the findings and conclusions supra, he said -

 

Having held thus, the consequential order that should follow is one of striking out the notice of appeal against the ruling by Fernandez, J., on 30th June 1988. The Notice of appeal against that decision of 30th June not having been struck out, as it should have been struck out, is hereby struck out.

 

I endorse the conclusion and the consequential order that follows. As stated by my learned brother, Eso, J S.C., in his lead Judgment that the main and important issue for determination in this appeal is whether the conclusion by the learned trial Judge in the Ruling of 21st September 1988 that -

 

The Respondents therefore committed an act of contempt as regards Exhibits 7, 8 and 9. I therefore found the Respondents guilty of contempt of the order of this court confirmed by the Court of Appeal and the Supreme Court in suit No. LD/1213/76; FCA/L/95/78 and SC.6I/l98O;

 

Which was followed by -

 

The Respondents not being correct before me, and in the interest of justice, and in line with paragraphs 13 and 14 of the further affidavit filed by the applicant, I will suspend sentence until the Respondents were able to purge themselves of the following within fourteen [14] days:

1.      have the Respondents and their agents moved away from the land of Ado Family as shown in Exhibit 'I' (i.e. the Plan);

2.     that the Respondents are hereby ordered to withdraw the letters Exhibits 7,8, and 9 attached to the affidavit in support dated 26^th June, 1986;

3.     that the Respondents do produce in court copies of letters of withdrawal of the said Exhibits 7, 8 and 9 attached to the said affidavit, and also to confirm to the recipient of these letters that they have no authority to do what they did in consonance with the Supreme Court order as aforesaid.

In default of this purge within the time stipulated, I will pronounce my sentence in accordance with the law taking into consideration the gravity of the offences.

In the meantime that the 1st - 12th Respondents are to be on bail in the sum N 1,000 [one thousand Naira and one surety in like sum. Each surety is to undertake to produce the Respondents bailed by 9 a.m. on 3rd October 1988.

is a final order to enable the Respondents to appeal to the Court of Appeal as of right under section 220(1)(b) of the 1979 Constitution, or is it an interlocutory order when they can only appeal with the leave of the trial court or the Court of Appeal, as the case may be.

My learned brother, Eso, J.S.C., has put down in an adequate precise form, the arguments of learned counsel for and against the issues raised on this crucial point in this appeal. I therefore see no compelling reason for repeating them.

The contempt proceedings in this case resulted from a refusal by the Respondents to obey and comply with the previous orders of the High Court in a civil case, which orders were subsequently confirmed on appeal by the Court of Appeal and the Supreme Court respectively. It is therefore a civil contempt, which is a contempt in procedure consisting of disobedience to the judgments, orders or other process of court. See Scott v. Scott (1913) A.C. 417 at 456.

Although there is a finding of guilty by the learned trial Judge, he decided to suspend pronouncing sentence on those contemnors that were present before him to a date when those who were absent were both brought together before him. The learned trial Judge then gave all of them another chance to purge themselves of the contempt before the next adjourned date. And before the next adjourned date, the respondents appealed to the Court of Appeal and applied for a stay of proceedings in the trial court which was granted.

The fact that respondents were released on bail pending their next appearance did not put their liberty in jeopardy as they were yet to be convicted by the learned trial Judge. The learned trial Judge only recorded a finding of guilty. See the decision in Eyo Ekpo V. The State (1972)1 All N.L.R (Pt.1) 89 at 91.

It is for this and the fuller reasons given in the lead judgment of my learned brother, Eso, J.S.C., that I would also allow this appeal. I abide by the consequential orders contained in the lead Judgment.

Appeal allowed.

Counsel

M. A. Bashua

With S. A. Bashua  ........   For the Appellants

Mr. Adigun Ogunseitan  ........  For the 1st - 3rd Respondents

Chief T. A. Oyagbola  ........For the 4th , 7th, 9th and 12th Respondents

Holding the brief of T. O. Kabiawu   ........  For the 10th and 11th Respondents