3PLR – HH ELDER (ETUBOM) INYANG G.D. HENSHAW & ORS V. HH ETUBOM EKENG ABIA & ORS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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HH ELDER (ETUBOM) INYANG G.D. HENSHAW & ORS

V.

HH ETUBOM EKENG ABIA & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 6TH DAY OF NOVEMBER, 2012

CA/C/120/2010

3PLR/2008/45 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

MOHAMMED LAWAL GARBA, JCA

UZO I. NDUKWE-ANYANWU, JCA

JOSEPH TINE TUR, JCA

 

BETWEEN

1. HH ELDER (ETUBOM) INYANG G.D. HENSHAW
2. HH ETUBOM IGNATIUS E. ARCHIBONG
3. HH ETUBOM NYONG EFFIOM OKON
4. HH ETINYIN EWA BASSEY EKENG
5. HH ELDER (CHIEF) EFFIOM EWA MAGNUS HENSHAW Appellant(s)

 

AND

1. HH ETUBOM EKENG ABIA
2. HH ETUBOM EKENG EKPENYONG EWA
3. HH ETUBOM ALEX OUT EDEM
4. HH ETUBOM ANDEM BASSEY EWA
5. CHIEF EFFIOM ITA EFFIOM
6. CHIEF EFA EWA HENSHAW Respondent(s)

 

REPRESENTATION

Essien Andrew – For Appellant

 

AND

U.E. Eba & U. Etta – For Respondent

 

MAIN ISSUES

 

1. PRACTICE AND PROCEDURE – COMMITTAL PROCEEDINGS: How the jurisdiction to entertain committal proceedings by a Court of law is commenced

”Jurisdiction to entertain committal proceedings by a Court of law is commenced by an application to the Registrar of the court that issued the order for the issuance and personal service of Forms 48 together with a copy of the enrolled order of the Court. It is when the judgment debtor still refuses or neglects to obey that Form 49 is issued “…not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor(s) in like manner as a judgment debt summons.” See Order 9 rule 13(2) of the Rules supra. On the day named in the notice for hearing the Court has to be satisfied by evidence that the notice, Forms 48 and 49 and the enrolled order were personally served on the judgment debtor if the order had been made in his absence but he still refused or neglected to obey, before proceeding to determine and commit the judgment debtor/contemnor to prison upon a warrant of commitment. This strict procedures and conditions precedent must be complied with before the Court may exercise jurisdiction to entertain committal proceedings. See Hart vs. Hart (1990) 2 SCNJ 1; Kalejaiye vs. Sulemon (1973) 2 FNLR 16; Okwuosa vs. Okwuosa (1973) 5 ECSLR (pt.1) 75 at 76.” Per TUR, J.C.A (Pp. 27-28, paras. C-A)

 

2. PRACTICE AND PROCEDURE – FORMS 48 AND 49: The importance of personally serving Forms 48 and 49 on the judgment debtor/contemnor

”The importance of personally serving Forms 48 and 49 on the judgment debtor/contemnor was highlighted in the judgment of the Supreme Court in Odu vs. Jolaoso (2005) 4 SCNJ 80 per pats-Acholonu, JSC at page 89 to wit: “It is clear from the contents of the form 48, as set out above, that it is aimed at giving notice to anyone believed to be in contempt of an order of Court that unless he takes steps to comply with the court order in question he would be committed to prison for contempt of the said order of court. It follows therefore that if the person upon whom the form was served takes immediate step to comply with the said order of court, all he needs to do is merely to immediately inform the court that he had complied with the order. There would therefore be no need to proceed further with him. The forms 48 and 49 are required to be signed by the Registrar of the Court in which the application for committal is made.” His Lordship continued at page 91 lines 7-10 and 23-25 as follows: “The essence of forms 48 and 49 is to appraise and warn him that he risked being put in prison if he did not comply with the contents of the forms which show that he is a contemnor….The forms 48 and 49, when served, as in this case, afford the contemnor the opportunity to recant. These forms provide him with a chance to try and comply with the order of the Court.” At page 97 lines 14-30 of the same judgment appears the following statement of the law by Oguntade, JSC: “It is clear from a close perusal of order 9 rule 13 above that whilst the intention of the lawmaker is to afford a person whose committal is sought for a failure to obey a Court order a hearing before he is committed to prison, such hearing is not the equivalent of a criminal trial in the ordinary manner. It is rather a special procedure to expeditiously deal with a recalcitrant person, once the court is satisfied that an order was made which a person has refused to obey, he may be sent to prison once it appears that notice as in form 48 has been served on him and if the order was made in his absence that a copy thereof has been serve on him.” Per TUR, J.C.A (Pp. 28-29, paras. B-E)

 

3. PRACTICE AND PROCEDURE – APPEAL – GROUNDS OF APPEAL: Whether issue for determination must arise from the grounds of appeal

”The issues for determination must arise from the grounds of appeal – Ikenta Best (Nig.) Ltd. vs. Attorney-General, Rivers state (2008) 6 NWLR (Pt.1084) 612. They must be connected with the issue(s) in controversy between the parties Ikweki vs. Ebele (2005) 2 SC (pt.2) 96. In Atoyebi vs. Government of Oyo State (1994) 5 NWLR (Pt.344) 290 at 305 Iguh, JSC observed that “An appeal presupposes the existence of some decision which is appealed against on a given points. Where therefore, there is no competence in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate Court. The appellate jurisdiction of this Court inter alia is to review the decisions and/or judgments of the court of Appeal. If therefore, an issue neither arose nor called for the determination of the court of Appeal which therefore, did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the supreme court and a purported appeal to this court on such an issue will be incompetent and may be struck out.” See also Odubeko vs. Fowler (1993) 7 NWLR (pt.308) 637 at 653.” Per TUR, J.C.A (Pp. 18-19, paras. F-D)

 

4. PRACTICE AND PROCEDURE – INTERLOCUTORY PROCEEDINGS: Whether appellate Courts can comment on issues that are yet to be determined in a Pending suit

”The Supreme Court has enjoined appellate courts not to comment on issues that are yet to be determined in a Pending suit when exercising appellate or supervisory jurisdiction in interlocutory or intermediate appeals or applications. See Motune vs Gambo (1983) G.L.R. 237 at 242; Kufeji vs. Kogbe (1961) 1 All NLR (Pt.1) 113/114; Iweka v. SCOA (2000) 3 SC 21 at 24-25.” Per TUR, J.C.A (P. 36, paras. E-F)

 

5. PRACTICE AND PROCEDURE – APPEAL – NOTICE OF APPEAL: Whether an appellant can be heard in support of a ground of appeal not mentioned in the Notice of Appeal

”An appellant is not permitted to argue or be heard in support of any ground of appeal not mentioned in the Notice of Appeal without leave of the Court. But the Court may grant leave to allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just. The court has power to strike out a notice or ground of appeal when either or both are incompetent or for any other sufficient reason, see order 6 rule 2(1)-(4), 3, 4 and 6 of the court of Appeal Rules, 2011.” Per TUR, J.C.A (P. 18, paras. A-D)

 

6. WORDS AND PHRASES – PRELIMINARY OBJECTION: The meaning of a ”preliminary objection”

”A preliminary objection is one that if upheld, would render further proceedings before the Court or tribunal impossible or unnecessary. An objection to the Court’s jurisdiction to entertain a suit, an application, or an appeal is an example of a preliminary objection that if successful, the remedy would be for the Court to decline jurisdiction and strike out the proceedings or if permitted by statute or a law, transfer same to the Court or tribunal with jurisdiction. The word “Preliminary” means “coming before and usually leading up to the main part of something.” See Blacks Law Dictionary, 8th edition, page 1218. Where preliminary objection is upheld, power is conferred on the Court of Appeal to strike out any ground of appeal that is vague or general in terms or which discloses no reasonable ground of appeal or any part thereof or which is not permitted under the Rules of the Court of Appeal.” Per TUR, J.C.A (Pp. 17-18, paras. E-A)

 

MAIN JUDGMENT

JOSEPH TINE TUR, J.C.A (Delivering the Leading Judgment):

This is an appeal by the appellants who are described as ‘Contemnors” in the Notice of Appeal filed by them on 23rd March, 2010 against the ruling of the High Court of Justice, Calabar, cross River state, delivered by Hon. Justice E.E. Ita in suit No.HC/17/2006 on 29th day of July, 2009. The Respondents are on the other hand described as “Applicants”. There are seven grounds of appeal challenging the ruling of the learned trial Judge. The appellant/contemnors’ Brief of argument filed on 26th May, 2011 was deemed as duly filed and served on the Respondents/applicants on 25th April, 2012.

The Respondent’s brief was filed on 28th May, 2012 and a deeming order made on 4th October, 2012. Upon receipt of the Respondents’ brief the learned Counsel to the appellants filed a Reply Brief on 11th June, 2012. When the appeal came up for determination on 4th October, 2012 both Counsel adopted their respective briefs of argument.

While the learned Counsel to the appellants sought that the appeal should be allowed and the ruling of the learned judge set aside, learned Counsel to the Respondent urged this Court to dismiss the appeal.

Before I consider the issues for determination may I recapitulate the facts in dispute that led to the institution of the suit before the lower Court which eventually culminated into this appeal.

The contemnors and the Respondents were members and principal officers of Henshaw Town Council in Calabar, Cross River State. Due to crisis that had erupted within the Town council a committee was set up to investigate the crisis and make recommendations that if implemented peace may be maintained. Upon completion of the assignment the committee submitted her report to the then Obong of Calabar described as “the Grand patriarch of Efik Nation” (see p.144 lines 3 of the printed records). At that time the Obong of Calabar was also the head of the Etubom Traditional Council though not a member of Henshaw Town council. Acting on this report the Obong removed some of the members of the council. Those aggrieved challenged their removal in the High court of Justice, Calabar, Cross River State. After a hearing Ita J., granted relief on 28th day of February, 2007 by quashing their letter of removal as members or executives of the Town Council. His Lordship further made the following consequential orders at page 145 to 146 of the printed record:

“Having declared letter dated 13th December, 2005 null and void and of no effect whatsoever I make the following consequential orders:

 

1. All officers and members of Henshaw Town Council remain as they were before the issue of the nullified letter. Council is not suspended.

 

2. 1st and 2nd defendants are hereby restrained from interfering in the affairs of Henshaw Town Council henceforth.

 

3. 3rd – 8th defendants are hereby restrained from parading themselves as or acting as members of any Caretaker Committee ever Henshaw Town Council pursuant to the nullified letter.

 

Members should return to their Council and conduct their affairs with the experience built on this Island over many centuries. In our traditional society a member steps down and does not take part in deliberations concerning him. The fear that one person or a group in the minority may influence matters adversely, as stated on defendants counter Affidavit, cannot justify throwing our Constitution and ways of life overboard. Your constitution says you must solve your problems yourselves. Go and do that. But even if you need help from outside of you, then that help has to be rendered in accordance with your constitution and not otherwise.

I make no order as to costs the parties being brothers of the same family.”

The judgment and consequential orders of the learned trial Judge were affirmed by the court of Appeal in Appeal No.CA/C/175/2007 of 18th day of March, 2009. The Court held at page 53 to 54 0f the printed record as follows:

“I have studied the relevant provisions of the constitution of the Henshaw Town council, 1980. From the affidavit the 1st and 2nd appellants are not members of that council.

The Etubom’s council is not a member of the Henshaw Town council. The constitution of the council has no provision for a non-member to intervene, even in a crisis situation, in the affairs of the council. If there is a threatened breakdown of law and order it is the duty of the law enforcement agents to intervene to keep peace. Even if there was a vote of no confidence on the Respondents by members of the council, the constitution did not vest in the 1st and 2nd Respondents or any other non-member of the council power to enforce it, whether or not the Henshaw Town council is a voluntary association or a traditional institution its constitution does not permit an outsider to remove and/or appoint any member of its executive or principal officers. See Section 6 and 7 of the constitution of the council on pages 11 and 13 of the records.
The single issue in the appeal is resolved against the appellants.

The appeal is dismissed. Appellants are to pay the sum of N10,000.00 as costs to the Respondents.”

 

The effect of the orders of His Lordship in the Court of trial as affirmed by the judgment of the court of Appeal was that all members of Henshaw Town Council that had been either suspended or removed in whatever capacity should go back to their various positions as either members or principal officers. Those appointed in their stead should stop parading themselves contrary to what they were before the crisis in the Town council. On 8th June, 2009 the plaintiffs/Respondents brought an application before Ita J., praying that the Defendants should be committed for contempt for refusing to obey the orders made in the judgment of 28th February, 2007. The applicants/Respondents alleged that there had been no compliance with the above consequential orders by the contemnors hence the filing of the committal proceedings.

In paragraph 27 of the affidavit in support of the committal proceedings it was alleged that the contemnors were served with Forms 48 and 49 through a bailiff of the High Court. But the contemnors denied ever been personally served Forms 48 or 49 in paragraph 32 of their Counter-Affidavit. This is because the bailiff served all the processes on the 1st respondent on behalf of the 2nd-5th Respondents. Form 49 was personally served on the 1st, 2nd-5th Respondents/contemnors but not the 3rd Respondent, who deposed to the counter affidavit on 30th June, 2009. It was further deposed that the bailiff had served the forms by leaving them with members of the Council for absent respondents at a Town Council meeting. The learned trial Judge did not hear the application for committal nevertheless he held on 29th July, 2009 that:

 

“By this application the applicants are saying that the 1st contemnor since the judgment herein had since returned to the council and to his position as chairman of council. That was in the line with consequential order (a) in the judgment. The applicants say the 1st contemnor as chairman of council would not allow them attend council meetings.

That was not in tine with the same consequential order (a). An order of court cannot be obeyed in part and disobeyed in part. If the 1st contemnor wants to disobey consequential order (a) in the judgment.
Then he himself must leave council because it was the same order which returned him to the council.

At the end of that judgment I expressed the hope that the consequential orders shall restore peace to the Henshaw Town council, but as yet it has not. That will not make me throw away the baby with the bath water. I will not decide this application now. I will rather make peace keeping orders in the hope that a determination of the application will become unnecessary.”

 

The learned trial Judge declined to determine the committal proceedings but embarked on a voyage of making peace keeping orders in the hope that a determination of the committal application will be unnecessary. However, the learned trial Judge went ahead to decree as follows:

I hereby order the 1st contemnor, as chairman of council, to enforce consequential order (a) in the judgment which made him return to council as chairman fully by allowing the 5 applicants on this application to attend Henshaw Town Council meetings.

 

Specifically, 1st contemnor shall hold 2 meetings of council before the next adjourned date, and file the attendance register duly signed by all attendees together with their minutes to show the holding of the meetings in court before the adjourned date. Whether or not they have something to deliberate upon they should go there and chat and laugh with themselves and file the attendance and minutes as ordered. I trust that by this we have heard the end of this matter and that I will not have cause to determine this application.”

See page 110 lines 6 to 15 of the printed record. Aggrieved by the procedure adopted by the learned trial Judge and the decisions/orders made against the contemnors has culminated into this appeal. The Respondents filed a Notice of Preliminary Objection to the hearing of this appeal on 28th May, 2012 on the grounds that:

 

“(a)- The ground of Appeal is incompetent because the ground of appeal does not attack the decision of the lower Court delivered on 29th July, 2009.

 

(b)     The appeal is wholly incompetent, the grounds of appeal and issue raised on matters outside the decision of the lower Court.”

 

Learned Counsel to the Respondent drew this Court’s attention to the orders made by the learned trial Judge at page 110 of the printed record and to the Grounds of Appeal at pages 113 to 116 of the records. Counsel cited Omotosho vs. Ojo (2008) 42 WLR 187 at 194 and CCB vs. Nwokocha (1998) 1 NWLR (Pt.564) 98 which held that grounds of appeal must attack the decision of the lower Court else they ought to be struckout. Similarly would the issues formulated based on incompetent grounds of appeal be struck out, citing Kano Textile Plc vs. G & H (Nig.) Ltd. (2002) 7 WRN 78; Akuchie vs. Nwamadri (1992) 1 NWLR (Pt.258) 214: Oluwole vs. Co-operative Bank Plc (2008) 13 WRN 72; Ajibaye vs. Ajibaye (2008) 1 WRN 121. Counsel contended that the appeal is based on the false premise that the learned trial Judge had determined the substantive application for committal which was not the case. Counsel referred to Alakija vs. Abdullahi (1998) 6 NWLR (Pt.582) 1. Moreover, the appellants should not raise on appeal any question which was not raised at and considered by the trial Court. Any issue so raised on appeal was incompetent and should be struckout. Counsel cited Haruna vs. Modibbo (2004) 16 NWLR (pt.900) 487. The Respondents finally urged the Court to dismiss the appeal and direct the trial Court to determine the application for contempt as there is no competent ground upon which this Court can hear the appeal.

In the Reply brief filed by the appellants on 11th June, 2012 and deemed adopted on 4th October, 2012 learned Counsel drew this Court’s attention to Ground One (1) in the Notice of Appeal as challenging the jurisdiction of the High Court to entertain the application the subject of this appeal. That it was not necessary for a ground of appeal complaining about lack of jurisdiction of a Court to arise directly from the judgment or ruling of the Court. This is because the issue of jurisdiction can be raised at any stage and in any manner even for the first time before an appellate court. Reference was made to BOB vs. Akpan (2010) All FWLR (pt.501) 896 at 942 paragraphs “A”-“B”.

Learned counsel referred to the dispute regarding the service of Forms 48 and 49 on the appellants which the learned trial Judge had ignored. That this could be raised at the appeal stage, citing Asks Property Investment Co. Ltd. vs. Akpan (2008)) All FWLR (pt.411) 990; MU Gongola Hope vs. Smurfit cases Ltd. (2007) All FWLR (pt.388) 1005. Learned Counsel referred to the appellants’ brief to show that ground 2 of the Notice of Appeal had been abandoned.

Counsel drew the Court’s attention to Grounds 3 to 7 in the Notice of Appeal and submitted that they attacked the merit of the ruling of the High Court and were therefore competent. The Court was referred to the holding of the lower Court at pages 109-110 of the printed record which showed that His Lordship had considered order (a) in suit No.HC/17/2006 the subject matter in the committal proceedings as enforceable. The Court then ordered the 1st appellant/contemnor as Chairman of Council to enforce the consequential orders and allow the respondents to attend the meeting of the Council. But it was after making these orders that the learned trial Judge declined entertaining the substantive application. Learned Counsel submitted that the approach of the learned trial Judge was not only unusual but uncommon citing Ogunlana vs. Dada (2009) All FWLR (pt.473) 1404 at 1425-1426 paragraph “H”-“A”. On the whole learned Counsel urged that the preliminary objection should be dismissed and the appeal be allowed.

A preliminary objection is one that if upheld, would render further proceedings before the Court or tribunal impossible or unnecessary. An objection to the Court’s jurisdiction to entertain a suit, an application, or an appeal is an example of a preliminary objection that if successful, the remedy would be for the Court to decline jurisdiction and strike out the proceedings or if permitted by statute or a law, transfer same to the Court or tribunal with jurisdiction. The word “Preliminary” means “coming before and usually leading up to the main part of something.” See Blacks Law Dictionary, 8th edition, page 1218.

Where preliminary objection is upheld, power is conferred on the Court of Appeal to strike out any ground of appeal that is vague or general in terms or which discloses no reasonable ground of appeal or any part thereof or which is not permitted under the Rules of the Court of Appeal.   An appellant is not permitted to argue or be heard in support of any ground of appeal not mentioned in the Notice of Appeal without leave of the Court. But the Court may grant leave to allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just. The court has power to strike out a notice or ground of appeal when either or both are incompetent or for any other sufficient reason, see order 6 rule 2(1)-(4), 3, 4 and 6 of the court of Appeal Rules, 2011.

Order 18 rule 3(1) of the court of Appeal Rules enjoins the briefs that they must contain inter alia, “…what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.” Where Counsel have not complied with the above provisions the issues formulated for determination shall also be struck out. The issues for determination must arise from the grounds of appeal – Ikenta Best (Nig.) Ltd. vs. Attorney-General, Rivers state (2008) 6 NWLR (Pt.1084) 612. They must be connected with the issue(s) in controversy between the parties Ikweki vs. Ebele (2005) 2 SC (pt.2) 96. In Atoyebi vs. Government of Oyo State (1994) 5 NWLR (Pt.344) 290 at 305 Iguh, JSC observed that “An appeal presupposes the existence of some decision which is appealed against on a given points. Where therefore, there is no competence in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate Court. The appellate jurisdiction of this Court inter alia is to review the decisions and/or judgments of the court of Appeal. If therefore, an issue neither arose nor called for the determination of the court of Appeal which therefore, did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the supreme court and a purported appeal to this court on such an issue will be incompetent and may be struck out.”

See also Odubeko vs. Fowler (1993) 7 NWLR (pt.308) 637 at 653.

When the Notice and Grounds of Appeal together with the issues set down for determination are challenged by the Respondent, it is the duty of the appellant to show that both the grounds of appeal and issues for determination emanated from the decision of the learned trial Judge. The argument of the learned Counsel to the Respondents and the response by counsel to the appellants calls for an examination of the Grounds of appeal and the issues formulated for determination. The appellants have set down the following issues for determination:

 

“i.      Whether the committal proceeding against the appellants was initiated by due process of law.

1. Whether in the circumstances of this case the learned trial Judge was right to hold that the 1st appellant was in contempt of Court.”

In my humble view issue One (1) is covered by Ground 1 and 3 in the Notice of Appeal. They read as follows:

GROUND ONE:

The trial Court erred in law when it assumed jurisdiction to hear the application to commit the appellants for contempt in this case when statutory conditions precedents to such an application had not been fulfilled.

PARTICULARS OF ERROR:

(i)      The 2nd to 5th appellants were not served with Forms 48 and 49 in the manner required by law.

(ii)     The respondents had neither sought nor obtained leave to apply for the committal of the appellants as required by the Cross River State High Court Civil Procedure Rules of 2008.

(iii)    The failure to fulfill the above statutory conditions precedents robbed the trial Court of jurisdiction to entertain the application.

(iv)    The trial Court completely ignored and fail to comment in anyway whatsoever on the appellants’ objection to the incompetent service of Form 48 and Form 49 which was a fundamental condition precedent to the competence of the action.

GROUND THREE:

The trial Court erred in law when it failed to resolve the conflicting affidavit evidence of  the parties before holding that the respondents have proved their allegation of contempt of Court against the respondents.

PARTICULARS OF ERROR

(i)      There were conflicting affidavit evidence as to whether the appellants were served with Form 48 and 49 personally.

(ii)     There were also conflicting affidavit evidence as to whether the respondents were prevented by the appellants from returning to the Council.

(iii)    A contempt proceeding being a quasi criminal action the respondents had the burden to prove their allegation against the appellant beyond all reasonable doubt.

(iv)    The trial Court should have called for the cross-examination of witnesses to resolve the conflicting affidavit evidence before reaching a decision on those issues.

(v)     The trial Court in this case made no attempt to resolve the conflicts either by parole evidence or by reference to the documents before the Courts in coming to its decision that the 1st appellant was in contempt.

(vi)    The trial court arbitrarily believed the respondents and disbelieved the appellants without giving any reason for doing so.”

 

Issue two (2) is covered by grounds 4 and 6. They read as follows:

GROUND FOUR:

The learned trial Judge erred in law when he held the 1st appellant in contempt of a declaratory order that “all officers and members of Henshaw Town Council remain as they were before the nullified letter.

PARTICULAR OF ERROR:

(i)      The relevant order allegedly contempted merely proclaimed a legal status and was consequently declaratory in nature.
(ii)     The said order being declaratory in nature was not an order enforceable by contempt proceedings.

(iii)    The judgment alleged contempted and the consequential orders made therein did not deprive Henshaw Town council of its powers to effect necessary changes in the membership and officers of the Council.”

 

GROUND SIX:
The trial court erred in law when it held that the appellants, particularly the 1st appellant, disobeyed the judgment of the court by preventing the respondents from returning to Henshaw Town Council.

PARTICULAR OF ERROR:

(i)      The learned trial Judge did not state how the 1st appellant prevented the respondent from returning to the Henshaw Town council in disobedience of the court order.

(ii)     The 1st respondent as stated in his affidavit refused to return to Henshaw Town Council except as Chairman of the Council contrary to the judgment of the High Court.

 

(iii)    It was also in evidence that the 3rd respondent was not a constitutional member of the Henshaw Town Council.

(iv)    The other respondents were withdrawn from the Council by their own House after they had ignored every appeal made to them to return to the Council since 2007.

(v)     The that Judge did not consider these extenuating facts and circumstances and did not give any reasons why ne disbelieved or ignored them.”

 

The result is that ground two (2) having being abandoned is struckout. Grounds five (5) and seven (7) in the Notice of Appeal are not covered by issues One (1) or Two (2) for determination hence they are struckout. The preliminary objection partially succeeds. Grounds 1, 3, 4, and 6 are covered by issues One and Two. They have arisen from the decision of the learned trial Judge.

I shall now determine the substantive appeal based on the argument proffered in the appellants’ brief of argument alone as no argument has been canvassed by the learned Counsel to the Respondents in respect of the substantive appeal.

APPELLANTS’ ARGUMENT

ISSUE ONE:

Learned Counsel to the appellants drew this Court’s attention to the fact that no affidavit of service of Forms 48 and 49 was exhibited by the bailiff who claimed to have served the processes in the lower Court. Learned Counsel referred to paragraph 27 of the affidavit in support of the contempt proceedings and paragraph 32 of the counter affidavit deposed to by the 3rd Respondent. Counsel submitted that the learned trial Judge should have resolved the conflict relating to the service of Forms 48 and 49 before determining the contempt proceedings.

Reference was made to order 9 rule 13 of the Judgment Enforcement procedure Rules and Igbonekwu vs. Eronini (2008) All FWLR (pt.409) 521 at 537. Counsel argued that in the absence of personal service of Forms 48 and 49 on the alleged contemnors the entire proceedings in the trial court should be declared a nullity.

ISSUE TWO:

Learned counsel contended under issue two that the orders of the learned trial Judge that “All officers and members of Henshaw Town Council remain as they were before the issue of the nullified letter. Counsel is not suspended” made on 13th December, 2005 being merely declaratory but not executory was unenforceable, citing Okoya vs. Santili (1990) 2 NWLR (pt.131) 172 at, 196; Government of Gongola State vs. Tukur (1989) 1 NWLR (Pt-117) 592 at 606. The Respondents’ Council could not be ordered to enforce the declaratory orders or declaration by committal proceedings. Besides, being in contempt of the orders of the Court, the applicants/respondents were not entitled to invoke the  jurisdiction of the Court to initiate contempt proceedings, citing Obikoya vs. Wema Bank Ltd. (1992) 5 NWLR (Pt.239) 122 at 127.

It was further argued by learned Counsel that as contempt proceedings are quasi-criminal in nature they have to be proved beyond reasonable doubt, citing Igbonekwu vs. Eronini supra; Opobiyi vs. Muniru (2008) All FWLR (Pt.408) 380. In the face of conflicting affidavit evidence, it was contended that the contempt was not proved beyond reasonable doubt. Reference was made to Kabiru vs. Ibrahim (2005) All FWLR (Pt.240) 94 at 114.
Counsel urged the Court to allow the appeal.

REASONS FOR JUDGMENT:

ISSUE ONE:

Application to commit the applicants/appellants for contempt was initiated by a motion on notice on 8th June, 2009 before the lower Court under Section 72 of the Sheriffs and Civil Process Act, Cap. S6 Laws of the Federation of Nigeria, 2004 which provides as follows:

“72. COMMITTAL FOR REFUSAL TO COMPLY WITH ORDER:

If any person refuses or neglects to comply with an order made against him, …the Court, … may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the Court thinks fit to obey the other parts of the order, if any, at the future times, thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the Court directs.”

Order 1 rule 13 of the Judgments (Enforcement) Rules made pursuant to the substantive Act supra prescribes the conditions precedent to be fulfilled before judgment Creditors may commence committal proceedings against judgment debtors/contemnors. The provisions read as follows:

”13. APPLICATION FOR COMMITTAL WARRANT UNDER SECTION 72:

(1)     When an order enforceable by committal under Section 72 of the Act has been made, the registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 48 and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.

(2)     If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as a judgment summons.

(3)     On the day named in the notice the Court, on being satisfied that the judgment debtor has failed to obey the order and, if the judgment debtor does not appear:-

(a)     that the notice has been served on him; and

(b)     if the order was made in his absence, that the endorsed copy thereof has also been served on him.

may order that he be committed to prison and that a warrant of commitment may issue.”

Jurisdiction to entertain committal proceedings by a Court of law is commenced by an application to the Registrar of the court that issued the order for the issuance and personal service of Forms 48 together with a copy of the enrolled order of the Court. It is when the judgment debtor still refuses or neglects to obey that Form 49 is issued “…not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor(s) in like manner as a judgment debt summons.” See Order 9 rule 13(2) of the Rules supra. On the day named in the notice for hearing the Court has to be satisfied by evidence that the notice, Forms 48 and 49 and the enrolled order were personally served on the judgment debtor if the order had been made in his absence but he still refused or neglected to obey, before proceeding to determine and commit the judgment debtor/contemnor to prison upon a warrant of commitment. This strict procedures and conditions precedent must be complied with before the Court may exercise jurisdiction to entertain committal proceedings. See Hart vs. Hart (1990) 2 SCNJ 1; Kalejaiye vs. Sulemon (1973) 2 FNLR 16; Okwuosa vs. Okwuosa (1973) 5 ECSLR (pt.1) 75 at 76.

The importance of personally serving Forms 48 and 49 on the judgment debtor/contemnor was highlighted in the judgment of the Supreme Court in Odu vs. Jolaoso (2005) 4 SCNJ 80 per pats-Acholonu, JSC at page 89 to wit:

“It is clear from the contents of the form 48, as set out above, that it is aimed at giving notice to anyone believed to be in contempt of an order of Court that unless he takes steps to comply with the court order in question he would be committed to prison for contempt of the said order of court. It follows therefore that if the person upon whom the form was served takes immediate step to comply with the said order of court, all he needs to do is merely to immediately inform the court that he had complied with the order. There would therefore be no need to proceed further with him. The forms 48 and 49 are required to be signed by the Registrar of the Court in which the application for committal is made.”

His Lordship continued at page 91 lines 7-10 and 23-25 as follows:

“The essence of forms 48 and 49 is to appraise and warn him that he risked being put in prison if he did not comply with the contents of the forms which show that he is a contemnor….The forms 48 and 49, when served, as in this case, afford the contemnor the opportunity to recant. These forms provide him with a chance to try and comply with the order of the Court.”

 

At page 97 lines 14-30 of the same judgment appears the following statement of the law by Oguntade, JSC:

“It is clear from a close perusal of order 9 rule 13 above that whilst the intention of the lawmaker is to afford a person whose committal is sought for a failure to obey a Court order a hearing before he is committed to prison, such hearing is not the equivalent of a criminal trial in the ordinary manner. It is rather a special procedure to expeditiously deal with a recalcitrant person, once the court is satisfied that an order was made which a person has refused to obey, he may be sent to prison once it appears that notice as in form 48 has been served on him and if the order was made in his absence that a copy thereof has been serve on him.

The appellant in this case was brought before the High Court for committal for failure to obey a Court Order in accordance with the procedure prescribed under Order 1 rule 13(1) and (2) above. There was evidence that forms 48 and 49 had been served on the appellant There was also an assertion that the appellant had not obeyed the order to exhume his father’s body from the land in question. It would appear that the stage was set for appellant’s committal to prison.”

In this appeal the question of personal service of Forms 48 and 49 was a live issue in the lower Court. This is to be as seen in the conflicting affidavits of the applicants and the contemnors to wit:

“26.   The Judgment Creditors have, contrary to the judgment and orders made on 28th February, 2007, replaced genuine Henshaw Town Council members with non-members as well as removed Etubom Alex Out Edem of Etinyin Edet Nsa House from Henshaw Town Council as punishment for daring to indict them in the panel report he chaired in total disregard of the judgment.

27. The Contemnors/Respondents were served with statutory Form 48 and 49 personally by bailiff of Court. Despite this notices they have not invited the applicants back to the Henshaw Town council. The statutory Form 48 and 49 and affidavit of service by the bailiff are hereto attached and marked Exhibits “F” and “G” respectively.
28. I make this affidavit in good faith believing the contents to be true and in accordance with the oaths Act, 2004.”

Paragraphs 32-33 of the counter affidavit of HH Etubom Nyong Effiom Okon read as follows:

“32.   Paragraph 27 of the applicants, affidavit is denied. The 2nd to 5th respondents were not served personally with Form 48 because the bailiff served all processes on the 1st respondent on behalf of the other respondents. Form 49 was served personally on the respondents except me because the Court bailiff took the process to the Council meeting venue and served the members present at the venue at that time. My copy was left with the secretary for me.

33. Our Solicitor, Essien H. Andrew Esq. later informed as and we verily believe him that the bailiff’s manner of service of the Form 48 and 49 on absent members by leaving them with other members of Henshaw Town Council was not a proper service in law.”

The manner of resolving this conflict was to call for Oral evidence. See Ehoh vs. Oki (1974) 1 SC 179 at 189-190; Falobi vs. Falobi (1976) 9 & 10 SC 1 at 15; Akinsete vs Akindutan (1966) 1 All NLR 147 at 148 and Olu-Ibukun vs. Olu-Ibadan (1974) 4 U.I.L.R. (pt.3) 361.

Alternatively, the learned trial Judge could have examined the conflicting affidavit evidence in the light of the bailiff’s affidavit of service Exhibits “F” and “G” to resolve the conflict. See Nwosu vs. Imo state Environmental sanitation Authority & Ors. (1990) 4 SCNJ 97 at 115; Fashanu vs Adekoya (1974) 6 SC 83; Kimdey vs. Milad (1988) 2 NWLR (Pt.77) 445 at 473. This is because where the affidavits materially conflict as to whether there was service or proper service of processes on any party, oral evidence should be called to determine and resolve the issue. see also Mark vs. Eke (2004) 5 NWLR (pt.865) 54 at page 79 paragraphs “B” to “D” where the supreme court held per Musdapher, JSC (as he then was) that:

“Now where a process has been served, it is necessary for the Court to have before it evidence of that fact. Service of the process especially the originating process is an essential condition for the Court to have the competence or the jurisdiction to entertain the matter. Further failure to comply with this condition would render the whole proceedings, including the judgment entered, and all subsequent proceedings based therein, wholly irregular, null and void. That is why the proof of the service of the process on a defendant is very fundamental to the issue of the jurisdiction and competence of the court
to adjudicate.”

 

In this case the issue of whether Forms 48 and 49 were personally or properly served on the contemnors so as to clothe the lower Court with jurisdiction was never attended to by the learned trial Judge before he proceeded to make the following order against the 1st appellant/contemnor:

 

“…I hereby order the 1st contemnor, as Chairman of Council, to enforce consequential order (a) in the judgment which made him return to Council as Chairman fully by allowing the 5 applicants on this application to attend Henshaw Town Council meetings.”

In Olajide Olaore & Ors. vs. Titus Adigun Oke (1987) 12 SC 1 Craig, JSC held at page 8 that:

“In its basic form, an order issued by a Judge is usually a positive command directing a party to perform certain acts, (or to refrain from doing some acts) and specifying the mode and time within which such acts shall he performed…”

In my humble view the order was made without jurisdiction; without the learned trial Judge hearing and deciding the committal proceedings. The learned trial Judge put the cart ahead of the horse; and rolled backward rather than forward the wheel of justice to the medieval ages.

Having made an enforceable order the learned trial Judge have even held that:

“…I will not decide this application now and I trust that by this we have heard the end of this matter and that I will not have cause to determine this application.”

See page 110 lines 3 and 14 to 15 of the printed record.

His Lordship declined jurisdiction to entertain the committal proceedings having made orders capable of enforcement by committal proceedings if violated in the future. The order was made without hearing the 1st appellant/contemnor. The appellants were entitled to fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. They should have been heard before the orders would have been made against them. Their civil rights and obligations were not determined before the offensive orders were made against them. This gave the contemnors the right to appeal against the decision/orders of the High Court by virtue of Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The word “decision” in section 241(1)(a) is defined under section 318(1) of the Constitution supra to mean, “in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.” The appellants were again entitled to appeal to this Court when without a prior hearing the learned trial Judge determined and ordered that, “specifically, 1st contemnor shall hold 2 meetings of Council before the next adjourned date, and file the attendance register duty signed by all attendees together with their minutes to show the holding of the meetings in court before the adjourned date.”

In my opinion, none of these reliefs were prayed for in the committal proceedings; neither did they form part of the orders His Lordship made in suit No. HC/17/2006. See Ekpenyong vs Nyong (1975) 2 SC 71 at 80; Atolagbe vs. Shorun (1985) 4 SC 250 at 256; Ochonma vs. Unosi (1965) NMLR 321 at 323 and commissioner for Works Vs. DDC Ltd- (1988) 7 SCNJ 1 at 10-12, Besides, his Lordship ordered that, “Whether or not they have something to deliberate upon they should go there and chat and laugh with themselves and file the attendance and minutes as ordered.”

Can warring or litigating parties sit together, chat and laugh in a scenario his Lordship also admitted his efforts to broker peace had so far failed? If they do not comply with this order can it be enforced in a court of law by committal proceedings? I do not think so. The order made by his Lordship is akin to Jewish captives sitting by the rivers of Babylon and weeping for their dear land but nevertheless being ordered by their Babylonian captors/masters to sing their love songs in a strange land!

When a court is seised of any suit or an application, one of the essential requirements that must be proved before the Court proceeds to exercise jurisdiction is to ensure that “(3) the case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.” See Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 595; Adeigbe & Ors. vs. Kusimo & Ors. (1965) NMLR 284 at 287. Once there is a challenge to jurisdiction the issue should at once be determined so as to prevent the Court and the parties embarking into a fruitless exercise. Without jurisdiction no Court can make binding orders. Jurisdiction must be vested in a Court or tribunal before the rights of the parties can be determined. See Kalu vs. Odili (1992) 6 SCNJ (pt.1) 76; Nyarko vs. Akowuah 14 WACA 426 and Ede vs. Commissioner for works and Housing (1980) 1 PLR 319 at 326. In Ajayi vs. Adebiyi (2012) 11 NWLR (pt.1310) 137 Adekeye, JSC held at page 192 paragraphs “E’-“G” that:

“In effect, where there is a challenge to the jurisdiction of a court, the court must first assume jurisdiction to consider whether it has or lack jurisdiction. In this case, the defect in the competence of the trial court to entertain the suit was fatal – white the entire proceedings before the Court was a nullity no matter how well conducted or decided or the level of industry put into the trial and judgment by the learned Counsel  for the plaintiff/respondent and the learned trial Judge. The absence of jurisdiction is irreparable in law and the only procedural duty of a court is to strike out the case. In view of the fact that the proceedings and judgment of the trial court was a nullity –  the matter ends there – the court of Appeal has nothing in to consider and affirm. The rule  U.A.C vs. Macfoy (1961) 3 WLR pg.1405 becomes operative as you cannot put something on nothing.”

In the absence of ensuring proper and personal service of Forms 48 and 49 and determining the committal proceedings on the merit, the learned trial Judge lacked the jurisdiction to make the orders complained of against the contemnors. The orders being nullities, I resolve issue one in favour of the appellants.

I am not oblivious of the fact that the learned trial Judge declined to entertain the committal proceedings. The substantive application is still pending. Whether the order made by Ita J., which forms the subject of Issue two in this appeal is declaratory or executory, enforceable or not will be determined when the substantive application is considered by another trial Judge. The Supreme Court has enjoined appellate courts not to comment on issues that are yet to be determined in a Pending suit when exercising appellate or supervisory jurisdiction in interlocutory or intermediate appeals or applications. See Motune vs Gambo (1983) G.L.R. 237 at 242; Kufeji vs. Kogbe (1961) 1 All NLR (Pt.1) 113/114; Iweka v. SCOA (2000) 3 SC 21 at 24-25.

On the whole, this appeal is allowed. The decision/orders of the lower Court complained of are set aside. The committal proceedings are to be assigned to another Judge of the High Court of Justice by the Chief Judge of Cross River State for hearing. Parties to bear their costs.

 

MOHAMMED LAWAL GARBA, J.C.A.:

A draft of the read judgment written by my learned brother Joseph Tine Tur, JCA, was read by me.

The Respondents to this appeal had commenced committal proceedings against the Appellants for alleged contempt of the High court orders contained in a judgment delivered on 28/2/2007 in the suit No. HC/17/2006, between them.
After hearing arguments in the proceedings, including an objection challenging the competence thereof, the High court reserved ruling to be delivered on the 29/7/2009. On the 29/7/09, the High court delivered the ruling giving rise to the present appeal in which after reference to the judgment delivered on 28/2/2007, it stated thus:

“At the end of that judgment I expressed the hope that the consequential orders shall restore peace to the Henshaw Town council, but as yet it has not. That will not make me throw away the baby with the bath water. I will not decide this application now. I will rather make peace keeping orders in the hope that a determination of the application will become unnecessary. I hereby order the 1st contemnor, as chairman of council, to enforce consequential order (a) in the judgment which made him return to council as chairman fully by allowing the 5 applicants on this application to attend Henshaw Town council meetings. Specifically 1st contemnor shall hold 2 meetings of council before the next adjourned date, and file the attendance register duly signed by all attendees together with their minutes to show the holding of the meetings in court before the adjourned date.

Whether or not they have something to deliberate upon, they should go there and chat and laugh with themselves and file the attendance and minutes as ordered. I trust that by this we have heard the end of this matter and that I will not have cause to determine this application.”

Not satisfied with the above decisions by the high Court, the Appellants brought the appeal vide the notice of appeal filed with the leave of the court, on the 23/3/2010.

In line with the Rules of the court, learned counsel for the parties filed briefs of argument as indicated in the lead judgment.

A notice of preliminary objection challenging the competence of all the grounds of appeal was filed along with the “RESPONDENTS’ BRIEF OF ARGUMENT” settled by Ukpong Eba, Esq.

As usual, the notice of the preliminary objection was moved at the hearing of the appeal on the 4/10/12 and the briefs of argument adopted by the learned counsel for the parties.

As pointed out by my learned brother in the lead judgment, the preliminary objection was the only subject argued in the Respondent’s brief and no submissions were made or offered in respect of the issue that were raised in the Appellants’ brief in the alternative in the event that the preliminary objection did not succeed. I must say that it is enormously risky for a Respondent to an appeal to wholly and totally rely on a preliminary objection in arguing the appeal and choose not to offer submissions on the issues raised in the Appellants’ brief or issue which in any event would require decision in the appeal in his view. The implication of such an option in judicial practice is that a Respondent has no answer or response to the submissions on the issues canvassed in the Appellants’ brief in the event that the preliminary objection fails and was dismissed. In such a situation, the appeal as far as the issues canvassed in the appellants’ brief are concerned, would be uncontested since there would be no submissions to be considered for the Respondent who is deemed to have conceded to them in law. See Okongwu v. NNPC (1989) 4 NWLR, 115; Fregene v. A.C. NIG. LTD (1997) 3 NWLR (493) 359; Akanbi v. Alatede (2000) FWLR (11) 1928; Obike Int’l v. Ayi Electronics (2005) ALL FWLR (256) 1369 at 1378. The initial judicial attitude in uncontested suits or appeals was that in the absence of evidence or arguments to be placed on the side of the imaginary scale of justice, the case automatically tilted on the side with evidence or arguments on it and so is entitled to judgment. See for instance the cases of Imene v. Robinson (1979) 1 ALL NLR, 1; Nwabuoku v. Otti (1961) ALL NLR, 467; Oguma v. Ibwa (1988) 1 NWLR (73) 658 at 682; Balogun v. UBA (1992) 7 SCNJ, 61; Egwuke v. ACB (1995) 2 SCNJ 68. However by the authorities such as John Holt Ventures v Oputa (1996) 9 NWLR (470) 101; UBN v. Oki (1999) 8 NWLR (614) 244 at 251; Akas v. Manager (2001) 8 NWLR (715) 436 at 442; Ebe v. Ebe (2004) 3 NWLR (860) 215; Echere v. Ezirike (2006) ALL FWLR (323) 1597 at 1608, the success of an appeal is not automatic even where it was uncontested and the court still has a duty to consider whether it was sustainable in law.

I am in complete agreement with the views expressed and the conclusion reached on the preliminary objection in the lead judgment. By way of emphasis, I wish to point out that the High Court would appear, with due respect to it, to have approbated and reprobated in respect of the committal proceeding, at the same time. In the first instance, the High Court said it was not going to determine the application before it. In the second instance, it went ahead to make orders to the effect that its orders contained in the judgment delivered on the 28/2/2007, were not complied with and should be complied with in the manner specified by it. Practically, the orders made by the High Court in the ruling appealed against have effectively determined that the persons at whom they were directed had disobeyed the earlier orders in the judgment delivered on the 28/2/2007, which was the substratum of the committal proceedings before it. The grounds of appeal challenging such orders therefore enure, and derive from the decisions, by the High Court in the ruling appealed against.
On the issues raised by the Appellants, in the absence of proof that the Appellants were duly and properly served with the FORMS 48 and 49 as required by law, the High Court lacks the requisite jurisdiction to proceed with the committal proceedings and make any advisory, directory, declaratory or executory orders except to regularize the defect of non service. For that reason, and the fuller reasons set out in the lead judgment, I also allow the appeal and abide by the consequential order made therein.

 

UZO I. NDUKWE-ANYANWU, J.C.A.:

I had the privilege of reading in draft form the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I am in total agreement with his reason and final conclusions. I also allow this appeal and abide by all the other consequential orders contained in the lead judgment.