By Adebisi Onanuga
An Ogun State High Court sitting in Ifo has struck out an application by Larfarge African Plc contesting its jurisdiction to entertain a suit filed by the family of Pa Saka Magbadelo of Alaguntan Village of Ewekoro,.
The family, in the suit, is seeking an order of the court to commit the managing director of the company and another to prison for allegedly disobeying a July 22, 2016 order of the court.
Justice N.O. Durojaiye, while ruling on a Notice of Preliminary objection dated July 13, 2020 filed by the company Managing Director, Khaled Abde-Laziz el Dokan, and Larfarge African Plc through their counsel B. P. Ogundele, held that the application by the defendants/applicants failed.
The applicants had urged the court to among others strike out forms 48 and 49 arguing that the inclusion of the name of a deceased as a party makes the application for committal incompetent.
But Justice Durojaiye, citing relevant authorities in his ruling, dismissed all grounds of objection raised by the applicants and resolved all issues in favour of the respondents against the appellants.
The court held: “the inclusion of a deceased as a party does not make the action incompetent or rob the court of jurisdiction because the cause of action survives the death of a party, such action is not terminated by death.
“Thus, the cause of action succeeds the parties in this suit which is being prosecuted in a representative capacity.”
The court also dismissed the applicants arguments of having a pending appeal before the Court of Appeal and therefore lack jurisdiction to entertain committal proceedings.
Justice Durojaiye held that the applicant did not include or attach a notice of appeal carrying a substantive appeal number which would have indicated that there is a valid appeal pending before the appellate court.
The trial judge agreed with the submission of counsel to the claimants/respondents, Abayomi Omoyinmi that there was no proper appeal before the appellate court but that the applicants were “still seeking extension of time for leave to appeal. As such, there is no pending appeal before the Court of Appeal.”
The family of Pa Saka Magbadelo had filed an application before the court to commit Larfarge African Plc and two others to prison for allegedly disobeying a July 22, 2016 court order.
The order followed judgment by Justice B.A.A. Bakre in suit no: HCT/212/10 concerning possession of a parcel of land measuring 353.412 hectares at Akinbo village, covered by survey no OG/276/2012/092
The defendants/respondents in the suit are Larfarge Africa Plc, and the Managing Director of the company, Khale Abde-Laziz El Dorkant.
The Claimants/Applicants are Nojimu Magbadelo, Atanda Magbadelo and Jonathan O. Akintona, for themselves and on behalf of Pa Saka Magbadelo of Alaguntan Village of Ewekoro.
Nojimu Magbadelo , an automobile mechanic, in a 14-paragraph affidavit, maintained that it is in the interest of justice that the respondents are committed for continuing the act of trespass despite the order of the court unless they speedily purge themselves of their contemptuous acts.
Magbadelo averred that they went into the land to exercise their right of possession and ownership and that on getting to the land, they saw machinery and other equipment used for mining allegedly belonging to Larfarge African Plc.
He averred that despite being aware of the court judgment and order, the respondent have refused to vacate the land to enable them take possession.
They claimed that the respondents have continued to carry out mining activities on the land daily and that a visit to the land by the family on Saturday, March 23, 2019 revealed that the respondents were still on the land.
He said the development made them serve the respondents with Form 48 at their office on Gerrad Road, Ikoyi, Lagos.
But Larfarge African Plc and its Managing Director, Khaled Abde-Laziz el Dokan, in their Notice of Preliminary Objection, challenged the jurisdiction of the court to hear the civil contempt proceedings based on a Motion on Notice dated February 25, 2020 which they claimed was pending at the Court of Appeal for stay of execution or any issue pertaining to the contempt proceeding before the court and slated for hearing November 24.
They prayed the court for an order striking out forms 48 and 49 on grounds of incompetency and to stay proceedings on the execution of the June 22, 2016 ruling of the court delivered by Justice B.A.A. Bakre and contempt proceedings initiated by the claimant/respondent pending determination of the substantive appeal and Motion on Notice dated February 2020.
In their affidavit in support of their application for objection, they averred that forms 48 and 49 were issued against the 1st and 2nd defendants applicant by the 3rd claimant/respondent who is not a juristic person in view of his death since January 2018.
They averred “that a dead person like the 3rd claimant/respondent is not capable of initiating contempt proceedings as presently constituted even in representative capacity.”
They also averred that claimants/respondents has not obtained warrant of execution (Form O) granting legal possession to them to warrant initiating contempt proceedings.
But the claimants/respondents in their counter affidavit deny paragraph 3 d to h and j, m to o, p and q and stated that with reference for paragraph 3(d)(e) and (f) of the preliminary objection, forms 48 and 49 were issued by the respondents representing themselves and on behalf of Saka Magbadelo family, hence the action survives the death of the 3rd respondent.
They averred that the applicant do not have any valid appeal pending before the Court of Appeal as their application for leave to file notice of appeal out of time has not been heard.
They contended that paragraph 3(o) and (q) of the affidavit of the applicant confirm that the applicants are in contempt and that it is not mandatory that respondents obtain warrant of execution to initiate contempt proceedings.
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