In The Supreme Court of Nigeria
On Friday, the 2nd day of February 1990
SC 52/1983
Between
Louis B. Ezekiel Hart ...... Appellant
And
Chief George I. Ezekiel Hart ....... Respondent
Judgment of the Court
Delivered by
Wali. J.S.C.
The present 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 of Nigeria in the Port Harcourt Judicial Division claiming as follows-
PARTICULARS OF CLAIM
1. A declaration that he is entitled to the possession or custody and control of all property real and personal of the said Chief Ezekiel Hart (deceased).
2. Delivery up to the plaintiff by the defendant of:-
(a) the keys of the family house at Bonny and of the family house at Creek Road, Port Harcourt. together with the family property in the said houses contained, which keys and property together with inventory were handed over by the plaintiff to the defendant for safe custody on or about 5th January, 1975, following the death of Chief Benoni Ezekiel Hart.
(b) Deed Box containing deeds, indentures or instruments in respect of 41 Creek Road, Port Harcourt aforesaid, and of the family lands situate at Obigho, Komkom, Azuama and B. Dere, all in the Bori Local Government Authority Area, which box, together with the deeds, indentures or instruments, was also handed over by the plaintiff to the defendant on or about the date aforesaid.
3. N2,000.00 general damages for the detention of the said keys, property and deed box, deeds indentures or instruments despite demands.
Later, on the application of other persons, namely, Louis Benoni Ezekiel Hart and Estella Benoni Ezekiel Hart for themselves and other children of Ezekiel Hart and Benoni Ezekiel Hart] were joined as second set of defendants.
Pleadings were ordered, filed and exchanged and issues joined. At the end of the proceedings, judgment was given in the plaintiff/respondent's favour with the following orders by the learned trial Judge -
1. I grant the plaintiff the declaration he seeks that as Chief or Head A of the Ezekiel Hart House he is entitled to the custody and control of all property real and personal of the said Chief Ezekiel Hart (Deceased).
2. I give judgment for plaintiff for the delivery up to him by the 1st defendant of the keys of the family Houses at Bonny and the family house known as No.41 Creek Road, Port Harcourt, together with the family property in both houses contained.
3. I am unable to make an order in respect of the Deed Box, as the claim for its return is based on Exhibit 'H' knowledge of which 1st defendant denies, and which in fairness to him, I find he did not sign.
Plaintiff has also claimed N2,000.00 general damages for detention of the said keys, property and deed box etc. I think the mention of property and deed box is superfluous, for only the keys were given to 1st defendant. The other items were supposed to be in the House. An action in detinue will lie at the instance of a plaintiff from whom the defendant has received a chattel but fails to return it when demand is made. From the evidence I believe that the keys were net handed to 1st Defendant by plaintiff alone. I believe they were handed to him collectively by the members of the House present at the time. If they all had demanded the keys back from him and he had refused to surrender them, he would have been liable in detinuc. In the present case as the demand was made by plaintiff alone, I do not find 1st defendant liable in detinue.
Aggrieved by the judgment of the trial court, the defendants appealed to the Court of Appeal. They also applied in the High Court for a stay of execution of its judgment pending the determination of the appeal which was refused on 29th April 1982. As a result they applied to the Court of Appeal, Enugu Division for the same relief which was granted on 13th October 1982.
The plaintiff also cross appealed against the refusal of the trial court to grant him relief of N2,000.00 general damages for detinue as contained in his Statement of Claim.
On 3rd September l984 both the main appeal and the cross appeal were heard by the Court of Appeal and judgment delivered on 29th November I984. in the lead judgment delivered by Phil-Ebosie, J.C.A., [with which both Aseme and Aikawa JJ.C.A. agreed], the main appeal by the defendants was dismissed while the plaintiff's cross appeal was allowed.
Still dissatisfied with the judgment of the Court of Appeal, the defendants files Notice of Appeal to this Court dated 11th January 1985.
Following the judgment of the Court of Appeal supra, the plaintiff, in l986, started committal proceedings against the defendants in the Port Harcourt Division of the Rivers State High Court for contempt of court in that notwithstanding the judgment of the Court of Appeal in the matter, the 1st defendant refused to hand over to the plaintiff the vacant possession of the two houses in dispute and their respective keys.
The learned trial Judge who dealt with the application for committal, found in his Ruling dated 12th June 1986 as follows
On the whole therefore I find that both defendants, in defiance of the courts, have refused or avoided to carry out the order of the courts (High Court, 24th September, 1981; Court of Appeal 29th October 1984) and have further, attempted to undermine or frustrate their effectiveness If a person who is required to obey a court order deliberately sets to do an act to frustrate the effectiveness of the order he is holding the courts in contempt.
He then issued out the following interim orders -
.that the 1st defendant within 7 days from today, do hand over to the plaintiff all items of property he removed from the Opuwari of Ezekiel Hart House, Bonny; and the 2nd defendant do move out of 41 Creek Road, Port Harcourt, within 7 days from today, failing which, appropriate orders would be made to compel them to carry out these orders made to satisfy the order of this court of 24th September, 1981 and confirmed by the Court of Appeal.
and adjourned further proceedings to 25th June 1986. And when the matter came up on 25th June 1986, the report was that both the 1st and the 2nd defendants had failed to comply with court's orders given on 12th June 1986. They were then committed to prison until they obeyed the order of the court.
On 2nd July 1986, the learned trial Judge heard an application by the 1st and the 2nd defendants for an order -
(I) allowing a stay or suspension of the order made by this Honourable court on 25th June 1986 committing the applicants for contempt of court for an indefinite period in that the 1st defendant failed to deliver to the plaintiff a deed box within 7 days as ordered by the court, and that 2nd defendant refused to vacate 3 rooms he occupies at No.41 Creek Road, Port Harcourt as ordered by the court on 12th June, 1986;
(II) Granting the applicants bail, pending the determination of their appeal to the Court of Appeal against the order of committal .
After considering the application, the learned Judge dismissed it on 7th July 1986 but adjourned the matter to 11th July 1986 to afford the contemnors further opportunity of purging themselves of the contempt.
From what appeared in the Record of Proceedings, defendant, James E. P. Hart complied with the order of the court and abandoned his appeal against the order of the learned trial Judge that dealt with the contempt proceedings and as such his appeal was struck out by the Court of Appeal on 27th October 1986 when an application by the 2nd defendant, Louis Ezekiel Hart for
(1) an extension of time within which to appeal for a stay of execution of the Ruling of Okara, J., dated 12th June 1986, and
(2) An interim order staying all further proceedings relating to the said Ruling pending the hearing of the substantive motion for a stay of execution
was considered and granted. He also, as shown in paragraph 3 of his further A affidavit sworn to on 24th October 1986, had complied with order of the court by "vacating the premises in dispute", that is by vacating and handing possession of the three rooms at No.41 Creek Road, Port Harcourt. The substantive application was however taken and granted by the Court of Appeal same having not been opposed by learned counsel for the respondent/plaintiff.
The appeal against the order of committal bearing identification No. FCA/E/54/82 was heard by the Court of Appeal, Enugu on 24th June, 1987 and judgment reserved.
In a well considered judgment of the Court of Appeal written by Abdullahi, J.C.A. [as he then was], with which both Ol