3PLR – LONESSOME OKOI OFEM & ORS. V. PRESBYTERIAN CHURCH OF NIGERIA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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LONESSOME OKOI OFEM & ORS.

V.

PRESBYTERIAN CHURCH OF NIGERIA

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 3RD DAY OF JUNE, 2011

CA/C/51/2009

3PLR/2011/55 (CA)

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

JAFARU MIKA’ILU, JCA

MASSOUD ABDULRAHMAN OREDOLA, JCA

ISAIAH OLUFEMI AKEJU, JCA

 

BETWEEN

1. LONESSOME OKOI OFEM
2. EMMANUEL OKOI OFEM
3. SAMUEL OKOI OFEM
4. ANDREW OKOI OFEM
5. MISS GRACE OFEM ETENG – Appellants

 

AND

PRESBYTERIAN CHURCH OF NIGERIA – Respondents

 

REPRESENTATION

1. U. Ojukwa Esq. – For Appellant

 

AND

1. A. Obo Esq. – For Respondent

 

MAIN ISSUES

 

1. WORDS AND PHRASES – “SHALL”: The meaning of the word “shall” when used in an enactment

“Order 9 Rule 13 (2) of the Judgment (Enforcement) Rules reproduced above provides that the Registrar “shall issue a Notice in Form 49”. The relevant meaning of this word “issue” in the Oxford Advanced Learners Dictionary is “to start a legal process against somebody especially by means of an official document.” In other words, by issuance of Form 49, the Registrar is to set out a legal process of contempt proceedings against the Appellants. The common interpretation accorded the word “shall” when used in an enactment is that it commands obedience, it is mandatory not directory in which case failure to comply is fatal. In Amata vs. Omofuma (1997) 2 NWLR (Pt.485) 93 at page 110; Nsofor JCA stated thus on the implication of the use of the word ‘shall’: “Now the word “shall” in its ordinary sense is a word of command and one which has always or which must be given a compulsory meaning. It denotes an obligation. It has a peremptory meaning. It is generally imperative. It is mandatory. It has the invaluable significance of excluding the idea of discretion and the significance of operating to impose a duty which may be enforced. Thus, if a statute provides that a thing “shall” be done, the natural and proper meaning is that a peremptory mandate is enjoined. See Achineku vs. lshagba (1988) 1 SCNJ 427 (1988) 4 NWLR (Pt. 89) 411; Onyeyipo vs. Chief Oyinloye (1987) 1 NWLR (Pt.50) 356.” Per AKEJU, J.C.A. (Pp.14-15, Paras.F-F)

 

2. PRACTICE AND PROCEDURE – COURT – ABUSE OF COURT PROCESS: What an abuse of court process entails

“The abuse is however not the mere filing of two actions in court, See Ogoejeofo vs. Ogoejeofo (2006) All FWLR (Pt.301) 1793. The abuse accurs where the two matters concern the same parties and same subject-matter and to the annoyance or irritation of the opponent. See Savage vs. Uwechia (1972) 1 All WLR (Pt.1) 255; Utih v. Oroboko (1996) 3 NWLR (Pt. 434) 36.” Per AKEJU, J.C.A. (P.18, Paras.C-D)

 

3. PRACTICE AND PROCEDURE – CONTEMPT OR COMMITTAL PROCEEDING: Duty on the person setting up a contempt or committal proceeding

“A contempt or committal proceeding no doubt is quasi-criminal proceeding which has the likelihood of affecting the liberty of a citizen. The person setting up contempt proceedings must therefore ensure that every step that is necessary is taken and the entire requirements are complied with strictly, See Opobiyi vs. Muniru (2008) All FWLR (Pt. 408) 380; Nya vs, Edem (2005) All FWLR (Pt. 242) 576.” Per AKEJU, J.C.A. (Pp.15-16, Paras.F-A)

 

4. PRACTICE AND PROCEDURE – COURT – DUTY OF A REGISTRAR: Effect of a registrar’s failure to sign a document as strictly required by statute and also on an unsigned document in law

“The duty of the registrar has been well spelt out in the provisions of those rules, and where a statute or rule has spelt out a duty, that duty must be carried out in strict compliance with the statute. The issuance of Form 49 connotes that the Registrar should sign at the space which is adequately and conspicuously provided at the foot of the Form as in Schedule 1 to the Rules, That is the way to accord validity and authenticity to the document. A document that is not signed has no worth or value in law, See omega Bank (Nig.) plc vs. O. B. C. Ltd. (pt. 249) 1964; Kwara Investment co. Ltd. vs. Garuba (2000) 10 NWLR (Pt. 674) 251. The learned counsel for the Respondent had argued that the Respondent ought not to be visited with the sin of the Registrar, I accept this as good law which is supported by a long list of authorities including Duke vs. Akpabuyo Local Government Area (2005) 12 SCNJ 280; U.T.C. vs. Pamotei (1980) 2 NWLR (Pt.103) 244.” Per AKEJU, J.C.A. (P.16, Paras.A-F)

 

5. INTERPRETATION OF STATUTE – ORDER 9 RULE 13 (1) AND (2): Interpretation of Order 9 Rule 13 (1 and 2) of the Judgment (Enforcement) Rules as it relates to the purpose of the forms therein mentioned

“I earlier on in this judgment set out the full content and context of Order 9 Rule 13 (1 and 2) of the Judgment (Enforcement) Rules. The two Forms mentioned therein are meant to commence committal proceedings and to warn the person served about the risk he takes where he fails to obey the order of Court or consequences of his continuing the disobedience and they are required to be signed by the Registrar. See Odu vs. Jolaoso (2003) 8 NWLR (Pt.823) 547 (2005) All FWLR (Pt. 262) 428.” Per AKEJU, J.C.A. (P.14, Paras.D-F)

 

MAIN JUDGMENT

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):

The Respondent obtained an order of interim injunction from the High court of Cross River State sitting at Ugep (hereinafter called the lower court) on 7th August, 2006 upon the motion exparte filed in Suit No. HUG/MISC 23/2006. The Respondent thereafter commenced suit No. HUG/MISC/34/2006 as committal proceedings against the Appellants who had been restrained from entering into the Respondent’s Church building or doing anything therein. Upon service of Forms 48 and 49 on them, the Appellants filed a Motion on Notice on 20/11/2006 as preliminary Objection to the proceedings and after taking arguments of counsel, the lower court in the ruling of 27/1/2009 dismissed the objection. The Appellants felt dissatisfied with the ruling and appealed to this court through the Notice and Grounds of Appeal filed on 4/2/2009 with 5 grounds of appeal.

In the Appellants’ Brief of Argument settled by E.U. Ejukwa Esq., the learned counsel formulated four issues for determination as follows:

1. Within the terms of the provision of Order 9 Rule 13 (2) of the Judgment Enforcement Rules, whether the signing of Form 49 (notice to show cause why order of attachment should not be made) by the issuing registrar of court is unnecessary.
2. Whether endorsement within the contemplation of Order 9 Rule 13 (1) of the Judgment Enforcement Rules is synonymous with merely exhibiting or annexing.
3. Whether the contempt Proceedings in HUG/MSC.34/2006 taken out simultaneously with the criminal proceedings in exhibit K were not founded on the same facts and circumstances and if they were so founded, whether that does not constitute an abuse of the judicial process.
4. In committal proceedings, whether procedural steps including those constituting conditions precedent to the initiation of the proceedings are mere issues of technicalities and even if they are whether they are inconsequential to the competence of the proceedings.

In the Respondent’s Brief of Argument deemed by this court as properly field on 8/2/2011, the learned counsel, A. A, Obo Esq. did not specifically formulate new issues, but responded to the issues formulated by the Appellant.

At the hearing of the appeal, the two learned counsel adopted their respective Briefs of Argument and urged this court to allow, or dismiss the appeal as it was suitable to the parties.

On issue 1 in his Brief, the learned counsel for the Appellants argued that the manner of initiating the substantive committal proceeding after issuance of Form 48 as set out in Order 9 Rule 13 of the Judgment Enforcement Rules is that the Registrar, on the application of the judgment creditor will issue a Notice in Form 49 to be served on the judgment debtor. He submitted that to issue a process (Form 49 inclusive) is to officially send it out after signing and affixing official stamp and seal. He referred to the Black’s Law Dictionary 8th Edition page 850 for the word “indorse” or “indorsement” and argued that under Order 9 Rule 13 (2) the issuing authority must sign the process and the form must always conform with the law.

He submitted that in the instant case Form 49 was not signed by the issuing Registrar and this defect cannot be cured by the rule that sin of an officer of court cannot be visited on the litigant because this is a quasi criminal proceeding while the defect is a fundamental vice that has a nullifying effect on the proceedings, He submitted that the advantage of every blunder, inadvertence or mistake even if it is technical, must go to the Appellant citing First Bank Plc vs. Maiwada (2003) FWLR (Pt. 151) 2001; Olarinde vs. Olarinde (1993) 7 NWLR (Pt. 307) 629.

He submitted that the issuing officer has a peremptory duty to sign Form 49.

On issue 2, the learned counsel submitted that under the Judgment Enforcement Rules, the issuance of Form 48, Notice of Consequences of Disobedience to Order of Court, and service thereof on the judgment debtor are conditions precedent under order 9 Rule 13 (1) of the judgment (Enforcement) Rules, a copy of the order to be served must be endorsed with the notice in Form 48. He submitted that “endorse” according to the Black’s Law Dictionary 8th Edition page 789 means writing at the back of the form. He cited Brawal shipping (Nig) Ltd. vs. Onwadike (2000) FWLR (Pt. 23) 1254.

According to the learned counsel, Form 48 served in the instant appeal was not endorsed with the order sought to be enforced but the order was annexed to the form, which violates Order 9 Rule 13 (1) of the judgment Enforcement Rules. He submitted that non-compliance with Order 9 Rule 13 (1) of the Judgment Enforcement Rules has the effect of invalidating the proceedings, citing Ezeobi vs. Abang (2001) FWLR (Pt. 56) 652.

On issue no. 3, the learned counsel argued that the same facts and circumstances relied upon for the issuance of Form 49 were also the basis for the arraignment of the 2nd, 3rd and 4th Appellants in a four count charge in MUG/105C/06. He submitted that the focus of the criminal prosecution simultaneously with the contempt proceedings on the same facts and circumstance is to harass, intimidate and subject the 2nd, 3rd and 4th Appellants to multiple punishment and they therefore constitute an abuse of judicial process, citing NV Scheep vs. MVS Arag (2001) FWLR (Pt. 34) 543; Ceder Stationary products Ltd. vs. IBWA Ltd. (2002) FWLR (Pt. 25) 1710. He submitted that the consequence of abuse of the judicial process is a dismissal of that process, which has constituted the abuse, citing Arubo vs. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; ACB Plc vs. Nwaigwe (2000) 1 NWLR (Pt.640) 201.

On issue no. 4, the learned counsel submitted that in every penal proceedings every step taken must be founded upon the provisions of an enabling statute or rule which must be obeyed no matter how technical, citing Deduwa vs. State (1975) 1 All NWLR (Pt. 1) 1; Umeoro vs. COP (1997) 7 SC 13. He submitted that it is the duty of the applicant in a committal proceeding to ensure and prove that all steps are taken which are necessary to comply with the requirements of the law, citing Opobiyi vs. Muniru (2002) All FWLR (Pt, 408) 387. He submitted that where there is a failure to meet the requirement of the law, whether technical, substantive or procedural, that failure will be fatal to the proceedings, citing Abbas vs. Solomon (2001) FWLR (Pt. 67) 847; Agu vs. Anejalogu (2001) FWLR (Pt. 68) 1247; Akuneziri vs. Okenwa (2001) FWLR (Pt.35) 604. He urged this court to allow the appeal, set aside the ruling of the lower court and dismiss the committal proceedings.

The learned counsel for the Respondent in his own Brief opposed the above arguments and submitted on issue 1, that there is nothing in Order 9 Rule 13 (2) on the meaning of the word “issue” used therein which suggests that the Registrar must sign Form 49 since there is no provision at the base of that form as to who should sign the form and the implication is that the Registrar’s signature is not a sine qua non for its authenticity or validity.

According to the learned counsel, the operative word in Order 9 Rule 13 (2) of the Judgment (Enforcement) Rules is “issue” and submitted that the word does not mean more than to send out or distribute officially as interpreted in the Black’s Law Dictionary, 8th Edition at page 850. There is nothing in the Rules to suggest that the Registrar must sign what he is sending out and there is no provision at the base of Form 49 for the signature of the Registrar, and so it is not required .

The learned counsel further argued that of all the Forms in the Judgment (Enforcement) Rules, it is only Form 49 that has no indication as to where the Registrar will have to sign. So the Registrar’s signature is not a must. He argued that even where the Registrar needs to, but has failed to sign the form that failure should not be visited on the litigant, citing Aribisala vs. Ogunyemi (2001) FWLR (Pt. 31) 2867.

On the second issue, the learned counsel said a copy of the enrolled order of court was stapled to Form 48 and served on the Appellants as opposed to typing at the back of it. He submitted that the interpretation of “endorse” in the Blacks Law Dictionary is about negotiable instruments only, it is not applicable to court processes. He argued that the essence of Form 48 being served with the order of court is to ensure that the person affected is aware of the order, and this is satisfied by attaching the order. He submitted that the attachment of the order has not misled the Appellants and as such the court should not raise any eyebrow on the authority of Okpehi vs. COP Delta State (2001) FWLR (pt. 69) 1317. Rules of Court, according to learned counsel are aids and not masters of the court and the courts should not be slavish to the Rules, citing Progress Bank Plc vs. Contact Point Holding Plc (2001) FWLR (Pt. 52) 2093; Union Bank of Nig, Plc v. Ekulo Farms Ltd. (2001) FWLR (Pt. 67) 10; UBA Plc vs. Mode Nig. Ltd. (2001) FWLR (Pt. 40) 1664. He submitted that it will amount to leaning on technicality which the law now abhors if Order 9 Rule 13 (1), a rule of court is made to defeat the aim of justice.

On issue 3, the learned counsel submitted that for there to be an abuse based on multiplicity of suits, the applicant must show that the two suits touch on the same parties, while the subject matter and issues must also be the same and where it is not so, an applicant cannot complain.

He cited Christian Outreach Ministries Inc. vs. Cobham (2000) All FWLR (Pt.310) 1675; Ogoejeofor vs. Ogoejeofor (2006) All FWLR (Pt.301) 1792; A.G. Anambra state vs. UBA (2005) All FWLR (Pt. 277) 909.

He argued that the parties and subject matter in HUG/MISC34/00 are not the same as in MUG/MISC105C/06, while one is a contempt proceedings, the other is a trial for conspiracy, stealing, assault and conduct likely to cause breach of the peace. According to counsel, a process can only constitute an abuse where it is intended to pervert the system, vexatious, frivolous and wanting in bonafide and none of which exists in this case.

On issue no. 4, the learned counsel submitted that the learned trial judge was right in holding that the court order was appropriately exhibited by annexing it to Form 48 and that finding should not be disturbed since it satisfied the interest of substantial justice as opposed to technicality, citing Timothy vs. F.R.N. (2008) All FWLR (Pt. 402) 1136; Francis vs. Osunko (2000) FWLR (Pt. 14) 2469; Atum vs. Akinyele (2000) All FWLR (Pt. 337) 526. The learned counsel urged this court to dismiss the appeal and affirm the ruling of the lower court.

On issue no.1, the learned counsel for the Appellant had contended that the Registrar has a duty which requires him to issue a Notice in Form 49 to be served on the judgment debtor upon the application of the judgment creditor. Also issue 2 is the propriety or otherwise of attaching the enrolled order of court to Form 48 as against its being indorsed. For the purpose of clarity, I reproduce the provisions of Order 9 Rule 13 (1) and (2) of Judgment (Enforcement) Rules as follows:

“13 (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 any injunction at the time when the order was drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order so endorsed with a notice on Form 48, and the copy so indorsed 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 indorsed copy of the order, and the order shall be served on the judgment debtor in like manner as a judgment summons.”

The complaints in issues 1 and 2 in the Appellant’s Brief concern the validity of Forms 48 and 49 served on the Appellants in commencement of the committal proceedings, the complaint being that the enrolled order was not endorsed on Form 48 in the manner stipulated by Order 9 Rule 13 (1) but attached to the Form, while the Form 49 was not signed by the Registrar as stipulated by Order 9 Rule 13 (2).

I earlier on in this judgment set out the full content and context of Order 9 Rule 13 (1 and 2) of the Judgment (Enforcement) Rules. The two Forms mentioned therein are meant to commence committal proceedings and to warn the person served about the risk he takes where he fails to obey the order of Court or consequences of his continuing the disobedience and they are required to be signed by the Registrar. See Odu vs. Jolaoso (2003) 8 NWLR (Pt.823) 547 (2005) All FWLR (Pt. 262) 428.

Order 9 Rule 13 (2) of the Judgment (Enforcement) Rules reproduced above provides that the Registrar “shall issue a Notice in Form 49”. The relevant meaning of this word “issue” in the Oxford Advanced Learners Dictionary is “to start a legal process against somebody especially by means of an official document.” In other words, by issuance of Form 49, the Registrar is to set out a legal process of contempt proceedings against the Appellants.

The common interpretation accorded the word “shall” when used in an enactment is that it commands obedience, it is mandatory not directory in which case failure to comply is fatal.

In Amata vs. Omofuma (1997) 2 NWLR (Pt.485) 93 at page 110; Nsofor JCA stated thus on the implication of the use of the word ‘shall’:

“Now the word “shall” in its ordinary sense is a word of command and one which has always or which must be given a compulsory meaning. It denotes an obligation. It has a peremptory meaning. It is generally imperative. It is mandatory. It has the invaluable significance of excluding the idea of discretion and the significance of operating to impose a duty which may be enforced. Thus, if a statute provides that a thing “shall” be done, the natural and proper meaning is that a peremptory mandate is enjoined. See Achineku vs. lshagba (1988) 1 SCNJ 427 (1988) 4 NWLR (Pt. 89) 411; Onyeyipo vs. Chief Oyinloye (1987) 1 NWLR (Pt.50) 356.”

 

A contempt or committal proceeding no doubt is quasi-criminal proceeding which has the likelihood of affecting the liberty of a citizen. The person setting up contempt proceedings must therefore ensure that every step that is necessary is taken and the entire requirements are complied with strictly, See Opobiyi vs. Muniru (2008) All FWLR (Pt. 408) 380; Nya vs. Edem (2005) All FWLR (Pt. 242) 576.

The duty of the registrar has been well spelt out in the provisions of those rules, and where a statute or rule has spelt out a duty, that duty must be carried out in strict compliance with the statute. The issuance of Form 49 connotes that the Registrar should sign at the space which is adequately and conspicuously provided at the foot of the Form as in Schedule 1 to the Rules, That is the way to accord validity and authenticity to the document. A document that is not signed has no worth or value in law, See omega Bank (Nig.) plc vs. O. B. C. Ltd. (pt. 249) 1964; Kwara Investment co. Ltd. vs. Garuba (2000) 10 NWLR (Pt. 674) 251. The learned counsel for the Respondent had argued that the Respondent ought not to be visited with the sin of the Registrar, I accept this as good law which is supported by a long list of authorities including Duke vs. Akpabuyo Local Government Area (2005) 12 SCNJ 280; U.T.C. vs. Pamotei (1980) 2 NWLR (Pt.103) 244.

It is however clear to me that a committal proceeding is a quasi-criminal proceeding that may have its effect on the liberty of the citizen and in which injustice will be occasioned to the Appellant by glossing over the fundamental defects in the originating processes that may question the competence of the court or the proceedings before it.

The Forms 48 and 49 issued in commencement of the contempt proceeding were not issued as required by the   provisions of the Judgment (Enforcement) Rules and they  must perforce be set aside as it is true in law that no one can put something upon nothing and expect it to stand.

I resolve issues 1 and 2 in favour of the Appellants.

Issue no 3 is about whether there is abuse of process as a result of the existence of the action that led to this appeal and Charge No.MUG/105c/2006 a copy of which is Exhibit K in the record of appeal.

The affidavit in support of the motion of the Appellants at the lower court is sufficiently instructive about this issue.

Paragraph 6 of that affidavit states:

“6.     On the 12th day of October 2006, however, unaware that settlement efforts had broken down while I was on my way to Elder Ofem’s Memorial Secondary School, Mkpani, I made some enquiry from Rev. Etim which infuriated other members of his Church and while they sought to push me out this led to scuffle that attracted my brother – Emmanuel and Samuel who came in only to take me away.”

The above facts show beyond any equivocation that the circumstances of the two cases are not in anyway the same.

It is clear from Exhibit K itself that there are three accused persons therein while there are 5 Appellants in this appeal and the subject matter of the two cases are also not the same.
The law does not permit proliferation of cases or turning the courts into super markets to see where the best bargain lies and a litigant is also not permitted to maintain several actions against the same person or persons in respect of the same subject matter to the annoyance, irritation, harassment or embarrassment of an opponent. It is called an abuse of court or judicial process which the courts frown at. The abuse is however not the mere filing of two actions in court, See Ogoejeofo vs. Ogoejeofo (2006) All FWLR (Pt.301) 1793. The abuse occurs where the two matters concern the same parties and same subject-matter and to the annoyance or irritation of the opponent. See Savage vs. Uwechia (1972) 1 All WLR (Pt.1) 255; Utih v. Oroboko (1996) 3 NWLR (Pt. 434) 36. Exhibit K is a Criminal Process that was issued for prosecution of the offences therein separate and distinct from the case in this appeal and I cannot see any abuse of court process complained of.

The remaining issue is no. 4 which rather poses a question about the Appellants exploring technicalities in this case. The learned counsel is right in my view that it is no mere technicality for a man who faces a possibility or likelihood of being committed to employ or rely on any defence open to him. For a person faced with criminal or quasi-criminal process to be given the benefit of the law is not a mere technical matter, it is a matter of doing justice.

It needs to be stated for the umpteenth time that our courts have left the domain of technicalities for the province of substantial justice. The courts are created for the sake of administering justice among the citizens and not to adhere to technicalities.

From the above, the appeal records success on issues 1 and 2 and it is allowed upon the success of those issues.

The decision of the lower court in respect of issues 1 and 2 is vacated, and Forms 48 and 49 issued by the registrar of the lower court are set aside.

I make no order as to costs.

 

JA’FARU MIKA’ILU, J.C.A.:

I agree as in the lead judgment just delivered by my learned brother, Akeju, JCA, that the appeal succeeds on issues 1 and 2 but fails on issue 3 and 4. Thus, Forms 48 and 49 issued in commencement of the committee proceeding before the lower court are incompetent and they are set aside. The appeal is allowed. No order as to costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:

I have had the privilege of reading before now, the read judgment just delivered by my learned brother, Isaiah Olufemi Akeju, JCA. I have given consideration to the reasoning and conclusion reached therein and I agree entirely that the appeal should succeed from the positive resolution of the first and second issues in favour of the appellants.

I also wish to add by way of emphasis, that in Abbas v. Solomon (2001) FWLR (pt. 67) 847; (2001) 15 NWLR (pt. 735) 144/167 the supreme court per Iguh, JSC, held that:
“The Judgments (Enforcement) Rules have prescribed the procedure to the adopted by a judgment creditor who is applying to have the judgment debtor committed to prison for disobedience of court order or judgment. I need stress, however, that an application for such committal must strictly comply with the provisions set out in these rules” (Underlining added)

Thus, for the above and fuller reasons contained in the lead judgment, I also allow the appeal. I abide by the consequential orders made in the lead judgment, inclusive of the one on costs.