NOAH & ORS v. WILLIAMS & ORS (2020)

NOAH & ORS v. WILLIAMS & ORS

(2020)LCN/14405(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/149/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ETEIDUNG NTIENSE S. JOB NOAH 2. CHIEF AKPAN AMOS UDOFIA 3. CHIEF EKPO ABRAHAM ITINA 4. CHIEF FRIDAY THOMAS ESSIET 5. CHIEF WILLIE MATTHEW UMONTUEN 6. CHIEF OKON LUKE EKWERE APPELANT(S)

And

ETEIDUNG UKPONG WILLIAMS 2. ETEBOM MAXWELL BEN UMOREN 3. THE SECRETARY, ONNA TRADITIONAL RULERS COUNCIL 4. THE HONOURABLE COMMISSIONER, MINISTRY OF LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS, AKWA IBOM STATE RESPONDENT(S)

RATIO

PROCEDURE FOR COMMENCEMENT OF COMMITTAL PROCEEDINGS

The decided cases which explained the procedures for commencement of committal proceedings can be divided into two categories even when their explanations or ratio decidendi do not extend to classifying or categorizing the nature of the procedure envisaged under Rules of Court such as the provision of Order 42 Rule 9 of the Akwa Ibom State High Court (Civil Procedure) Rules.
The first category of decided cases such as OMOPENA v. ADELAJA (1950) 19 NWLR 71; BOYO v. STATE (1970) 1 NLR 318’ @ 320; OLOFA v. MOGAJI (1960) WNLR 193 @ 198; DOHERTY v. DOHERTY (1964) LLR 776 specifically referred to at page 345 of the book “Injunctions and Enforcement of Orders” by Afe Babalola and perhaps also the cases of OGAJI v. IGONIKON DIGHANI (2010) 10 NWLR (Pt. 1202) 309; OKOJIE v. UHUMAWAGHO (1987) 3 NWLR (Pt. 62) 653 explained that:
If after the service of the order of injunction and Forms 48 and 49 with the mandatory endorsements thereon on the Defendant, the Defendant persists in the breach of the order of injunction made against him, the Plaintiff applies to the Court by Motion on Notice for the committal of the Defendant to prison for contempt. The Plaintiff is required to state the grounds on which the committal application is based on the motion paper.
The affidavit in support of the Motion for Committal must in addition to any other relevant facts contain facts showing the personal service of the order of injunction of Forms 48 and 49 with the requisite endorsements on it…
The second category of decided cases are those that have explained the committal proceedings as specifically related to disobedience of Court orders. The first of such is the case of ODU v. JOLAOSO (2004) 8 NWLR (Pt. 823) Page 547 @ 560 where Akintan JCA (as he then was) said inter alia:
The position in the instant case was that Form 48 was served on the Appellant. This was followed by the service on him of Form 49 after he failed to obey the order of the Court of which he was in breach after having been served with Form 48. He was therefore brought before the Court in compliance with the directive on Form 49. The reason why he was therefore brought to the Court was not for the purpose of his being tried for contempt of Court. It was solely for him to show cause why an order for his committal to prison for contempt should not be made…
Similarly, the Supreme Court per Iguh JSC in ABBAS v. SOLOMON held inter alia:
The general rule fully reflected in the provisions of Order 9 Rule 13(1) of the Judgment (Enforcement) Rules… Where the judgment debtor still fails to obey the order after two clear days of service on him of the order and the notice, the judgment creditor may pursuant to the provisions of Order 9 Rule 13 (2) of the Judgment (Enforcement) Rules apply to the Registrar for the issuance of a notice in Form 49 for the service on the judgment debtor for an order for the said judgment debtor to appear in Court and show cause why he should not be committed to prison for failure to obey the order…
Clearly, the cases of ODU v. JOLAOSO (2004) 8 NWLR (Pt. 823) 547 @ 560 and ABBAS v. SOLOMON (2001) 15 NWLR (Pt. 735) Page 144 @ 167-168 were specifically concerned with committal proceedings based on disobedience of Court orders as envisaged by Order 9 Rule 13 of the Judgment (Enforcement) Rules made underSection 72 of the Sheriffs and Civil Process Act.
On the other hand, the cases of OMOPENA v. ADELAJA (supra); BOYO v. STATE (supra); OLOFA v. DOHERTY (supra); OGAJI v. IGONIKON DIGHANI (supra); OKOJIE v. UHUMAWAGHO (supra); and EBONG v. EFFIONG (2007) 17 NWLR (Pt. 1062) 92 are concerned with committal applications in the course of proceedings. PER OWOADE, J.C.A.

WHETHER OR NOT THERE IS A NEED FOR STRICT COMPLIANCE WITH THE PROCEDURAL RULES OF A COURT
The majority of our reported contempt of Court cases including those cited by the parties in this appeal relate to the need for strict compliance with the procedural rules especially as to service on the contemnor bearing in mind that contempt proceedings are quasi-criminal in nature. See OGAJI v. IGONIKON DIGHANI (2010) 10 NWLR (Pt. 1202) 309; EBONG v. EFFIONG (2007) 17 NWLR (Pt. 1062) 92; AKPAN v. AKPAN (1996) 7 NWLR (Pt. 462) 620 @ 626; NZIDEE v. KOOTU (2007) 1 NWLR (Pt. 1014) 99; FCDA v. KORIPAMO AGARY (2010) 14 NWLR (Pt. 2013); GREMA v. JANYUN (2001) 6 NWLR (Pt. 709) 414 @ 424-425; ODU v. JOLAOSO (2004) 8 NWLR (Pt. 823) Page 547 @ 560. PER OWOADE, J.C.A.

PROCEDURE FOR COMMITTAL IN THE COURSE OF PROCEEDINGS
Meanwhile, the provision of Order 42 Rule 9 of the Akwa Ibom State (Civil Procedure) Rules 2009 provides for procedure for committal in the course of proceedings and at the same time preserves the procedure for committal for disobedience to Court orders as contained in Order 9 Rule 13 of the Judgment (Enforcement) Procedure Rules made under the Sheriffs and Civil Process Act. It reads:
ATTACHMENT FOR CONTEMPT
9. (1) The procedure in applications for attachment for contempt of Court in cases to which this Rule applies shall be the same as for application for an order for judicial review underOrder 40as far as may be applicable.
(2) The Notice of Motion shall be personally served unless the Judge dispenses with such service.
(3) This Rule applies to cases where the contempt is committed:
(a) in connection with the proceedings to which this order relates.
(b) in connection with criminal proceedings
(c) subject to the provisions of the Sheriffs and Civil Process Act, any proceedings in the High Court or where the contempt consists of disobedience to an order of the Court.
(d) in connection with the proceedings in an inferior Court.
Provided that this Rule shall not apply where the contempt is committed in facie curiae.
It seems to me that the implication of the provision of Order 42 Rule 9 (2) and (3) are as follows:
1. Where the contempt is committed ex-facie curiae, in the course of proceedings, the service of Forms 48 and Form 49 shall be accompanied by a Motion on Notice.
This is because, for contempt in the course of proceedings, there is the dual applicability of the requirement of a Motion on Notice as provided for under Rule 9 (2) of Order 42 and also the requirement of service of Forms as prescribed under the Sheriffs and Civil Process Act.
2. Where however, the contempt relates to disobedience of Court order (when proceedings have been concluded) as in the instant case an order for stay of execution, all that would be required from the judgment debtor is the strict proof of service of Forms 48 and 49.
First, Notice of consequences of disobedience to Order of Court (48). Second, Notice to show cause why order of attachment should not be made (49). The reason why service of motion is unnecessary under this head is that Section 72 of the Sheriffs and Civil Process Act under which the provision of Order 9 Rule 13 of the Judgment (Enforcement) Procedure Rules was made is not only superior in legislative hierarchy to Rules of Court, but has previously covered the field in respect of “committal for refusal to comply with order”. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision (Ruling) of the Hon. Justice Winifred I. A. Effiong of the High Court of Akwa Ibom State, Uyo, delivered on the 14th day of June 2017.

The facts of this case are that following the judgment of the trial Court in Suit No. HEK/22/2008 dated 24th February, 2014 which was delivered by Honourable Justice Theresa Obot in favour of the Appellants declaring the 1st Appellant the village head of Nung Oku Ekanem Village, the 1st Respondent appealed against the said judgment to the Court of Appeal, Calabar on the 22nd May, 2014 and later applied before the trial Court for an Order Staying Execution of the judgment of the trial Court dated 24th February, 2014 in the said suit No. HEK/22/2008. Upon hearing from the parties, the trial Court made an Order on the 5th August, 2014 staying execution of its judgment of the 24th February, 2014 pending the hearing and determination of its appeal in Appeal No. CA/C/362/2014. Although parties and their counsel were in Court when the Order of the trial Court was made on the 5th day of August, 2014 Staying Execution of its

judgment of 24th February, 2014, the 1st Respondent through his Counsel caused this Order of 5/8/2014 to be served on the parties concerned. See pages 23-39 of the record of appeal.

Not-with-standing the service of the Order on the Appellants including the (now 2nd, 3rd and 4th Respondents), they (Appellants and 2nd-4th Respondents) disobeyed the Order Staying the Execution of the judgment made by the trial Court on the 5th of August, 2014 by proceeding to procure the Certificate of Recognition in favour of the 1st Appellant which Certificate is dated the 2nd March, 2015 and was presented on the 16th July, 2015 to the 1st Appellant by the Late Paramount Ruler of Onna who was initially joined in the main suit No. HEK/22/2008 by the 1st Appellant and the 2nd defendant; Edidem (Dr.) A. U. Ukpa (of blessed memory).

Following the Appellants’ and 2nd-4th Respondents’ disobedience to the lawful Court Order of 5th August, 2014 in suit No. HEK/22/2014, the Respondent commenced Committal proceedings against them before the trial Court by firstly applying for the issuance and service of Form 48 on them. See pages 2-13 of the record of appeal. This

was followed by his application for the issuance and service of Form 49 on the Appellants and 2nd-4th Respondents which Form was duly issued by the Registrar of the trial Court on the 3rd day of August, 2015 and served on them accordingly. See pages 40-49 of the record of appeal.

The service of Forms 48-49 on the Appellants notwithstanding, they (Appellants and 2nd Respondent) filed a Notice of Preliminary Objection to the hearing of the application for committal in suit No. HEK/Misc.49/20125 as according to them the process to commit them was grossly and incurably defective and incompetent. The 1st Respondent filed his response to the said objection and after its hearing, the learned trial judge dismissed the objection. The ruling of the learned trial judge is at pages 95-103 of the record of appeal.

It is against the ruling of the trial Court dismissing the Appellants’ and 2nd Respondent’s Objection that this appeal is brought by them with 2 (two) grounds, contained in their Notice of Appeal of 28/6/2017.
The relevant briefs of Argument for this appeal are:
1. Appellants brief of Argument filed on 17/6/2019 and deemed filed on

28/5/2020. It is settled by Christian O. Ezeibe.
2. 1st Respondents brief of Argument filed on 7/10/2019 and deemed filed on 28/5/2020. It is settled by Jerry Akpan Esq.
3. Appellants Reply brief of 28/5/2020. It is settled by Christian O. Ezeibe.

Learned Counsel for the Appellant nominated a sole issue for the determination of the appeal. It is:
Whether the learned trial judge was right to hold that the commencement of contempt proceeding without a Motion on Notice is proper.

Learned Counsel for the 1st Respondent similarly formulated a sole issue for the determination of the appeal, to wit:
Whether the contempt proceeding was properly and competently commenced against the Appellants and 2nd Respondent at the trial Court as required by law (Grounds 1 & 2).

On the sole issue, Learned Counsel for the Appellant submitted relying on the provision of Order 42 Rule 9 (1) (2) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009to say that for a contempt procedure to be commenced, an application must be made for the judge by way of Motion on Notice.

He submitted that there are plethora of authorities including

but not limited to the cases of OGAJI v. IGONIKON DIGHANI (2010) 10 NWLR (Pt. 1202) 309; EBONG v. EFFIONG (2007) 17 NWLR (Pt. 1062) 92 that have clearly decided the fact that the use of Motion on Notice in the commencement of contempt proceedings is mandatory.

Learned Counsel for the Appellants further quoted from the Learned Author of Injunctions and Enforcement Of Orders, Afe Babalola OFR, CON, SAN at page 345 to have stated that
If after the service of the Order of judgment and Forms 48 and 49 with the mandatory endorsements taken on the Defendant, the Defendant persists in the breach of the Order on injunction made against him, the Plaintiff applies to the Court by Motion on Notice for the committal of the Defendant to prison for contempt. The Plaintiff is required to state the grounds on which the committal application is based on the Motion paper.

Learned Counsel reminded us that the Appellants are not disputing whether Forms 48 and 49 were issued or not. Rather that their contention is that the conditions provided for under the rules of Court requiring an application by way of Motion on Notice was not complied with.

Learned Counsel

for the Appellants submitted further that the learned trial judge erred in law when she applied the provisions of Order 9 Rule 13 of the Judgment Enforcement Rules to the instant case, thus overruling the preliminary objection of the Appellants.

Learned counsel for the Appellants further submitted that because of the intricate nature of contempt proceedings, that is being of a quasi-criminal nature, caution should be applied by Courts while dispensing with the proceedings to ensure that all the rules of Court are complied with.

He referred on this to the cases of NZIDEE v. KOOTU (2007) 1 NWLR (Pt. 1014) 99; F.C.D.A v. KORIPAMO AGARY (2010) 14 NWLR (Pt. 1213); GORDON v. GORDON (1946) ALL E R 250.

He added that the 1st Respondent would have tread on the side of caution by filing a Motion on Notice after the service of Forms 48 and 49 on the Appellants. He urged us to resolve the issue in favour of the Appellants.

Learned counsel for the 1st Respondent submitted that the High Court Rules of Akwa Ibom State 2000 makes provision in its Order 42 Rule 9 for committal proceedings but since the disobedience by the Appellant and the 2nd Respondent

of the trial Court’s Order of the 5th August, 2014 is a restraining order of the Court Order 42 Rule 9(3)(C) of the said Rules of Court comes into play. He submitted that by the provision of the above sub-rule 3(C) of the Order 42 Rule 9 (supra), the 1st Respondent is enjoined to commence the proceeding for the committal of the Appellants and 2nd-4th Respondents in the manner provided for in the Sheriff and Civil Process Act, Cap 56, Laws of the Federation of Nigeria, 2004 and under Order 9 Rule 13 of the Judgment (Enforcement) Rules made under the Sheriff and Civil Process Act, respectively.

He argued that the provision of Order 42(9)(3)(C) of the High Court Rules of Akwa Ibom State, 2009 states that the proceedings under that Order should be commenced subject to the provisions of Sheriffs and Civil process Act (supra); the 1st Respondent was duty bound to comply with the procedure for the enforcement of the trial Court’s restraining or restrictive order of 5th August, 2014 in the manner provided for by the Sheriffs and Civil Process Act (supra) and Order 9 Rule 13 of the Judgment Enforcement Rules made under the Act (supra).

He submitted that Order 42 Rule 9(3)(C) ousted the applicability of the provision of the Akwa Ibom State High Court (Civil Procedure) Rules where the contempt of Court is in the nature of disobedience to the Order of the Court where it provides as follows:
Subject to the provisions of the Sheriffs and Civil Process Act, any proceedings in the High Court or where the contempt consists of disobedience to an order of Court.

Learned Counsel for the 1st Respondent submitted that by the above provision which is made subject to another enactment, the legal implication is that the other statute to which it is made subject to shall strictly govern what follows in the provision as the provisions of the one which are made “subject to” becomes subordinate and subservient to that other statute and in this case, the Akwa Ibom State High Court Rules (supra) becomes subservient to the Sheriffs and Civil Process Act (supra).

Learned Counsel for the 1st Respondent referred to the cases of TUKUR v. GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) Page 512 @ Page 579-580 per Nnaemeka – Agu JSC; N.D.I.C v. OKEM ENT. LTD. (2004) 10 NWLR (Pt. 880) Page

107 @ Page 183 per Uwaifo JSC; OBI v. INEC (2007) 11 NWLR (Pt. 1046) 565; LABIYI v. ANRETIOLA (1992) 8 NWLR (Pt. 258) Page 139.

For the view that “subject to” introduces a condition, a restriction, a limitation, a proviso: And, that the expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provision to which it is subject to conditional upon compliance with or adherence to what is prescribed in the provision referred to.

He submitted that by introducing the phrase “subject to” at the beginning ofOrder 42 Rule 9 sub-rule 3(C) of the Rules, the High Court (Civil Procedure) Rules of Akwa Ibom State under the subject intended that the provisions of the Sheriffs and Civil Procedure) Rules of Akwa Ibom State under the subject intended that the provisions of the Sheriffs and Civil Process Act should govern and control the proceeding where it involves disobedience to an Order of Court.

Learned Counsel for the 1st Respondent reasoned that the contempt proceeding now on appeal arose as a result of the

failure of the Appellants and the 2nd Respondents (on record) to obey the order of the trial Court dated the 5th day of August 2014 staying the execution of the judgment of the Court in Suit No. HEK/22/2018 dated the 22nd day of February, 2014 pending the hearing and determination of the appeal in Appeal No. CA/C/362/2014.

He added that the proceeding therefore falls under the provision of Order 42 Rule 9 Sub-Rule 3(C) of the Akwa Ibom State High Court Rules and which proceeding must be brought under the provision of the Sheriff and Civil Process Act relating to the enforcement of the disobedience to the Court Order.

He submitted that the basis for the commencement of the committal proceeding in the instant case is Section 72 of the Sheriffs and Civil Process Act, Cap S6 LFN 2004. And, that Order 9, Rule 13 of the Judgment (Enforcement) Rules made pursuant to S-72 of the Sheriffs and Civil Process Act makes provision for the way and manner it should be prosecuted and enforced.

After reproducing the provision of Order 9 Rule 13 of the Judgment (Enforcement) Procedure Rules, 1st Respondent’s Counsel submitted that the contempt proceeding

brought by the 1st Respondent against the Appellants and 2nd-4th Respondents requires no application or use of Motion on Notice as contended by the Appellants but the issuance and service of Forms 48 and 49 on the Appellants and 2nd-4th Respondents.

The 1st Respondent (on record) said counsel had upon the disobedience to the order of the trial Court by the Appellants and the 2nd-4th Respondents (on record) caused Forms 48 and 49 to be issued and served upon them; notice of consequences of interference with the administration of justice and notice to show cause why the order committing them to prison should not be made. With the proof of service of form 49 on the Appellants and 2nd respondent before the Court, the Appellants and 2nd Respondent’s invitation to the Court was for their committal to prison custody as the stage for their trial had passed; they not having filed any counter-affidavit challenging the depositions in the affidavit of the 1st Respondent in support of Form 49. He referred to the case of ODU v. JOLAOSO (2003) 8 NWLR (Pt.823) 547 @ Page 560, paras. E-H, per Akintan, JCA (as he then was).

He submitted that having disobeyed the

order of the trial Court of 5th August 2014 and without denying same, the Appellants and 2nd Respondent were upon the service of Form 49 on them ”required to show cause why order for their committal should not be made”. They did not require any other Court process(s) to be issued and served on them before the Order for their committal is made. This he said is the requirement of the Judgment Enforcement Rules made pursuant to the provision of the Sheriff and Civil Process Act, 2004. In further support of this position said counsel, is the case of ODU v. JOLAOSO (supra) @ pages 561-562, Paras. G-D, per Akintan, JCA (as he then was), where the learned law lord had this to say:
The position in the instant case was that Form 48 was served on the Appellant. This was followed by the service on him of Form 49 after he failed to obey the order of the Court of which he was in breach after having been served with Form 48. He was therefore brought before the Court in compliance with the directive on Form 49. The reason why he was therefore brought to the Court was not for the purpose of his being tried for contempt of Court. It was solely for him to show

cause why an order for his committal to prison for contempt should not be made. The question then is upon his appearance before the Court on that day, whether the step taken by the learned trial judge was right having regard to the request from the Appellant’s counsel for an adjournment on the ground that he (counsel) was not fit enough to take the application he filed for a preliminary objection in the case. The application before the Court which the Appellant’s counsel could not move, was not that Appellant has complied with the order of the Court in question. The fact that the Appellant was still in contempt of the order of the Court was not disputed or denied as at the time the Court made the order which is the subject of the present appeal.

He submitted that the position of the law in this regard was re-affirmed in the case of EBONG v. EFFIONG (2007) 17 NWLR (Pt. 1062) Page 92 where issuance and service of Forms 48 and 49 on the Respondent was the issue before the Court of Appeal as the ones (Forms 48 & 49) issued and served on him were in a different suit altogether and did not comply with the Judgment (Enforcement) Rules to the

extent of non-service of Forms 48 and 49. It was held per Owoade, JCA at page 110, paras. D-F as follows:
First, it must be emphasized that contempt of Court is quasi-criminal in nature and for this and other reasons, the question of the issuance and service of Form 48, that is notice of consequences of interference with the administration of justice and Form 49, that is notice to show cause why the order of attachment should not be made, under the Judgment (Enforcement) Rules made pursuant to Section 72 of Sheriffs and Civil Process Act, Cap 407, LFN, 1990 must be resolved before any committal orders are made against a contemnor.

It is instructive to note said the Counsel that in EBONG v. EFFIONG (supra) this Court did not decide that an applicant in a contempt proceeding should file and serve a Motion on Notice on the contemnors once Forms 48 and 49 have been issued and served on them. This is because, the Judgment Enforcement Rules does not make provision for such. The reason for the dismissal of the Appellant’s appeal was that there was no proof of service of Forms 48 and 49 on the Respondent as “the Forms 48 and 49 were in respect of

a different case and not in respect of the committal proceeding”. That in the same case; EBONG v. EFFIONG (supra) @ Page 108, Paras. B-D, Ngwuta, JCA (as he then was) made the following observations:
I have scrutinized exhibit F (Form 48) and exhibit G (Form 49) Suit No. FHC.UY/CS/144/03 in which it is sought to punish the Respondent for interfering in the administration of justice is not mentioned in any of the forms. Even if the forms are not necessary, as the Appellant argued and were exhibited to show that the Respondent had habitual disdain for Court orders, contempt on the facts before the Court cannot be committed in vacuo. There must be a proceeding in relation to which the contempt is committed. Exhibits meant to show that the Respondent habitually disobeyed Court orders may be relevant after the respondent has been adjudged guilty of contempt in a particular case. The respondent cannot be convicted for contempt merely because he had disobeyed Court orders previously.
Learned counsel for the 1st Respondent submitted that the cases of OGAJI v. IGONIKON DIGHANI (2010) 10 NWLR (Pt. 1202) 309; EBONG v. EFFIONG (2007) 17 NWLR (Pt. 1062) 92;

OKOJIE v. UHUMAWAGHO (1987) 3 NWLR (Pt. 62) 653; AKPAN v. AKPAN (1996) 7 NWLR (Pt. 462) 620 @ 626; NZIDEE v. KOOTU (2007) 1 NWLR (Pt. 1014) 99; F.C.D.A v. KORIPAMO AGAARY (2010) 14 NWLR (Pt. 1213); GORDON v. GORDON (1946) ALL ER 247 @ 250, GREMA v. JANYUN (2001) 6 NWLR (Pt. 709) 414 @ 424-425 cited by the Appellants counsel in support of his argument that the requirement by the 1st Respondent to file and serve a Motion on Notice on the Appellants is mandatory after the service on them of Forms 48 and 49 are cited out of context as the decisions in the above cases do not support his case.

He added that the common thread that runs through these decisions is the mandatory issuance and service of Forms 48 and 49 and the committal of the Appellants for disobeying the order of the Court on the day they are being heard and why they should continue to disobey the order of the Court and not the issuance and service of Motion on Notice on them.

Learned counsel for the 1st Respondent then submitted that his position had since been affirmed by the Supreme Court in the case of ABBAS v. SOLOMON (2001) 15 NWLR (Pt. 735) Page 144 @ Pages 167-168, were Iguh JSC

said:
The general rule is fully reflected in the provisions of Order 9 Rule 13 (1) of the Judgment (Enforcement) Rules. Before committal proceedings are instituted therefore, the judgment creditor shall ensure that the judgment debtor, if the order was made in his absence, is served with a copy of the order proposed to be enforced with a notice in the appropriate form, to wit, Form 48 informing the person on whom the copy is served that if he neglects to obey the order, he will be liable to be committed to prison to compel him to obey it. See STOCKON FOOTBALL CO. v. GASTON (1985) 1 QB 453. Where, however, an order requires a person to abstain from doing an act, it would seem that the same may be enforced, notwithstanding that service of a duly endorsed copy of the order has not been served on the judgment debtor if the Court is satisfied that, pending such service, the person against whom enforcement is sought has had notice of the terms of the order either by being present when the order was made. See HUSSON v. HUSSON (1962) 3 ALL ER 1056 or by being notified in terms of the order. Such notice however must be proved beyond reasonable doubt. See

CHURCHMAN v. JOINT SHOP STEWARDS’ COMMITTEE OF THE WORKS OF THE PORT OF LONDON (1972) 3 ALL ER 603 @ 606. Where the judgment debtor still fails to obey the order after two clear days of service on him of the order and the notice, the judgment creditor may pursuant to the provisions of Order 9 Rule 13 (2) of the Judgment (Enforcement) Rules apply to the Registrar for the issuance of a notice in Form 49 for service on the judgment debtor for an order for the said judgment debtor to appear in Court and show cause why he should not be committed to prison for failure to obey the order. If on the hearing date, the judgment debtor appears, the Court may hear him and if the Court is satisfied that he has failed to obey the order and that he was duly served with a copy of the said order together with the prescribed notice, an order to commit him to prison may be made. Such are the rules surrounding and regulating proceedings in respect of committal to prison for disobedience of the judgment or order of Court.

Learned counsel for the 1st Respondent concluded that the Appellants and the 2nd-4th Respondents were not entitled to be served with any Motion on Notice as the

Judgment (Enforcement) Rules do not, in its Order 9 Rule 13 make provision for the issuance and service of such Motion on Notice. He urged us to resolve the issue in favour of the 1st Respondent.

RESOLUTION OF SOLE ISSUE
The summary of the Appellants argument in this appeal is that under and by virtue of the provision ofOrder 42 Rules 9(1)and (2) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009, every committal proceeding must be accompanied by a Motion on Notice.
The 1st Respondent on the other hand insisted that a committal proceeding consequent on disobedience of a Court order as in this case (that is the order of stay of execution), the procedure is governed by the provision of Order 9 Rule 13 of the Judgment (Enforcement) Procedure Rules made pursuant to Section 72 of the Sheriffs and Civil Process Act Cap. 56 LFN 2004.
A careful digest of the various cases cited by the parties makes me to come to the conclusion that though seemingly straight forward, the particular question raised by the learned counsel for the Appellants, that is whether a motion on Notice is necessary in all committal proceedings have not caught the

attention of the Courts.
The decided cases which explained the procedures for commencement of committal proceedings can be divided into two categories even when their explanations or ratio decidendi do not extend to classifying or categorizing the nature of the procedure envisaged under Rules of Court such as the provision of Order 42 Rule 9 of the Akwa Ibom State High Court (Civil Procedure) Rules.
The first category of decided cases such as OMOPENA v. ADELAJA (1950) 19 NWLR 71; BOYO v. STATE (1970) 1 NLR 318’ @ 320; OLOFA v. MOGAJI (1960) WNLR 193 @ 198; DOHERTY v. DOHERTY (1964) LLR 776 specifically referred to at page 345 of the book “Injunctions and Enforcement of Orders” by Afe Babalola and perhaps also the cases of OGAJI v. IGONIKON DIGHANI (2010) 10 NWLR (Pt. 1202) 309; OKOJIE v. UHUMAWAGHO (1987) 3 NWLR (Pt. 62) 653 explained that:
If after the service of the order of injunction and Forms 48 and 49 with the mandatory endorsements thereon on the Defendant, the Defendant persists in the breach of the order of injunction made against him, the Plaintiff applies to the Court by Motion on Notice for the committal of the

Defendant to prison for contempt. The Plaintiff is required to state the grounds on which the committal application is based on the motion paper.
The affidavit in support of the Motion for Committal must in addition to any other relevant facts contain facts showing the personal service of the order of injunction of Forms 48 and 49 with the requisite endorsements on it…
The second category of decided cases are those that have explained the committal proceedings as specifically related to disobedience of Court orders. The first of such is the case of ODU v. JOLAOSO (2004) 8 NWLR (Pt. 823) Page 547 @ 560 where Akintan JCA (as he then was) said inter alia:
The position in the instant case was that Form 48 was served on the Appellant. This was followed by the service on him of Form 49 after he failed to obey the order of the Court of which he was in breach after having been served with Form 48. He was therefore brought before the Court in compliance with the directive on Form 49. The reason why he was therefore brought to the Court was not for the purpose of his being tried for contempt of Court. It was solely for him to show cause why an order

for his committal to prison for contempt should not be made…
Similarly, the Supreme Court per Iguh JSC in ABBAS v. SOLOMON held inter alia:
The general rule fully reflected in the provisions of Order 9 Rule 13(1) of the Judgment (Enforcement) Rules… Where the judgment debtor still fails to obey the order after two clear days of service on him of the order and the notice, the judgment creditor may pursuant to the provisions of Order 9 Rule 13 (2) of the Judgment (Enforcement) Rules apply to the Registrar for the issuance of a notice in Form 49 for the service on the judgment debtor for an order for the said judgment debtor to appear in Court and show cause why he should not be committed to prison for failure to obey the order…
Clearly, the cases of ODU v. JOLAOSO (2004) 8 NWLR (Pt. 823) 547 @ 560 and ABBAS v. SOLOMON (2001) 15 NWLR (Pt. 735) Page 144 @ 167-168 were specifically concerned with committal proceedings based on disobedience of Court orders as envisaged by Order 9 Rule 13 of the Judgment (Enforcement) Rules made underSection 72 of the Sheriffs and Civil Process Act.
On the other hand, the cases of OMOPENA v. ADELAJA

(supra); BOYO v. STATE (supra); OLOFA v. DOHERTY (supra); OGAJI v. IGONIKON DIGHANI (supra); OKOJIE v. UHUMAWAGHO (supra); and EBONG v. EFFIONG (2007) 17 NWLR (Pt. 1062) 92 are concerned with committal applications in the course of proceedings.
The majority of our reported contempt of Court cases including those cited by the parties in this appeal relate to the need for strict compliance with the procedural rules especially as to service on the contemnor bearing in mind that contempt proceedings are quasi-criminal in nature. See OGAJI v. IGONIKON DIGHANI (2010) 10 NWLR (Pt. 1202) 309; EBONG v. EFFIONG (2007) 17 NWLR (Pt. 1062) 92; AKPAN v. AKPAN (1996) 7 NWLR (Pt. 462) 620 @ 626; NZIDEE v. KOOTU (2007) 1 NWLR (Pt. 1014) 99; FCDA v. KORIPAMO AGARY (2010) 14 NWLR (Pt. 2013); GREMA v. JANYUN (2001) 6 NWLR (Pt. 709) 414 @ 424-425; ODU v. JOLAOSO (2004) 8 NWLR (Pt. 823) Page 547 @ 560.
Meanwhile, the provision of Order 42 Rule 9 of the Akwa Ibom State (Civil Procedure) Rules 2009 provides for procedure for committal in the course of proceedings and at the same time preserves the procedure for committal for disobedience to Court orders as contained in

Order 9 Rule 13 of the Judgment (Enforcement) Procedure Rules made under the Sheriffs and Civil Process Act. It reads:
ATTACHMENT FOR CONTEMPT
9. (1) The procedure in applications for attachment for contempt of Court in cases to which this Rule applies shall be the same as for application for an order for judicial review underOrder 40as far as may be applicable.
(2) The Notice of Motion shall be personally served unless the Judge dispenses with such service.
(3) This Rule applies to cases where the contempt is committed:
(a) in connection with the proceedings to which this order relates.
(b) in connection with criminal proceedings
(c) subject to the provisions of the Sheriffs and Civil Process Act, any proceedings in the High Court or where the contempt consists of disobedience to an order of the Court.
(d) in connection with the proceedings in an inferior Court.
Provided that this Rule shall not apply where the contempt is committed in facie curiae.
It seems to me that the implication of the provision of Order 42 Rule 9 (2) and (3) are as follows:
1. Where the contempt is committed ex-facie curiae, in

the course of proceedings, the service of Forms 48 and Form 49 shall be accompanied by a Motion on Notice.
This is because, for contempt in the course of proceedings, there is the dual applicability of the requirement of a Motion on Notice as provided for under Rule 9 (2) of Order 42 and also the requirement of service of Forms as prescribed under the Sheriffs and Civil Process Act.
2. Where however, the contempt relates to disobedience of Court order (when proceedings have been concluded) as in the instant case an order for stay of execution, all that would be required from the judgment debtor is the strict proof of service of Forms 48 and 49.
First, Notice of consequences of disobedience to Order of Court (48). Second, Notice to show cause why order of attachment should not be made (49). The reason why service of motion is unnecessary under this head is that Section 72 of the Sheriffs and Civil Process Act under which the provision of Order 9 Rule 13 of the Judgment (Enforcement) Procedure Rules was made is not only superior in legislative hierarchy to Rules of Court, but has previously covered the field in respect of “committal for

refusal to comply with order”.
Section 72 of the Sheriffs and Civil Process Act provides thus:
72. COMMITTAL FOR REFUSAL TO COMPLY WITH ORDER
If any person refuses or neglects to comply with an order made against him, other than for payment of money, the Court , instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph (f) of Section 66 of this Act, 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.
Furthermore, to execute this, Order 9 Rule (13) of the Judgment (Enforcement) Rules made pursuant to the above provision provides as follows:
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 for the

delivery of goods without the of paying their value or is in the nature of an injunction, 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 reserved on the judgment debtor in the 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 notice in Form 49 not less than two clear days after the service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in the 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.
In the instant case as was in the cases of ODU v. JOLAOSO (2004) 8 NWLR (Pt. 823) 547 @ 560 and ABBAS v. SOLOMON (2001) 15 NWLR

(Pt. 735) 144; 167-168, I agree with the learned trial Judge and the learned Counsel for the 1st Respondent in this appeal that the proceedings for committal for disobedience to the Court’s Order for stay of execution by the Appellants and the 2nd-4th Respondents was sufficiently fulfilled by the service of Forms 48 and 49 as provided for under Section 72 of the Sheriffs and Civil Process Act.
Finally, I would like to note in further agreement with the learned trial Judge that where the committal proceeding as in the instant case relates to disobedience of Court order, a judgment creditor – Applicant may in addition to the service of Forms 48 and 49 and perhaps Ex Abundante Cautella also file a motion for committal, but clearly the service of forms 48 and 49 as required by the Judgment (Enforcement) rules is sufficient and acceptable.

In the circumstance, the only issue in this appeal is resolved against the Appellants. This appeal lacks merit and it is accordingly dismissed.

Parties to the appeal are to bear their respective costs.

HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading in draft the judgment of my

learned brother Mojeed Adekunle Owoade, JCA in draft.

I totally agree with the reasoning and resolution of the sole issue, and accordingly dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother Mojeed A. Owoade, JCA just delivered. I am in agreement with the reasoning therein and concision arrived thereat, that the appeal is bereft of any merit and should be dismissed, I too dismiss the unmeritorious appeal. I abide by the consequential orders.

Appearances:

Christian O. Ezeibe, Esq. For Appellant(s)

Jerry Akpan, Esq. For Respondent(s)