CHIEF KALADIKIBO SAMUEL DIKIBO & ORS. V. CHIEF DANIEL ALLISON IBULUYA & ORS.
(2006)LCN/2163(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of July, 2006
CA/PH/282/2004
RATIO
COURT PRACTICE: WHERE AN APPELLATE COURT WOULD BE RELUCTANT TO INTERFERE WITH THE FUNCTION OF A TRIAL COURT
Ordinarily it is the exclusive preserve of the trial Judge to listen, watch and determine the credibility or otherwise of the witnesses who testify before it. Equally exclusive to the trial Judge is the evaluation and ascription of probative value to adduced evidence at the trial. An appellate court must be very reluctant indeed to interfere with these sacred and primary functions of the trial court unless it is shown unequivocally that the functions were carried out injudiciously, in a pervasive manner. Where however, the functions of the court includes or rests squarely on the consideration of documentary evidence which same documents are also placed before the appellate court, then the appellate court is in as good a position as the trial court to evaluate the documentary evidence.PER DONGBAN-MENSEM, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
Between
CHIEF KALADIKIBO SAMUEL DIKIBO & ORS. Appellant(s)
AND
CHIEF DANIEL ALLISON IBULUYA & ORS. Respondent(s)
DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 04/02/04, His Lordship T. K. Osu, J. of the High Court of Rivers State holden at Port Harcourt, upheld a preliminary objection to strike out the committal proceedings initiated oy the appellants against the respondents.
The committal proceedings were taken out to enforce the judgment of Gabriel-Whyte (of blessed memory), pronounced on the 09/05/88. The appellants had, on the 18/06/01 and 27/06/01 respectively filed and served on the respondents, forms 128 and 129. Thereafter, the appellants filed on the 25/07/01, a motion seeking to commit the respondents to prison for disobeying the orders made in the judgment pronounced on the 09/05/88.
Upon being served, the respondents filed a preliminary objection on the 27/07/01. Also filed was a counter-affidavit in opposition of the motion for committal. After taking oral arguments from both sides, the learned trial Judge upheld the preliminary objection for non-compliance with the relevant provisions of the law.
The appellants have come to this court urging us to set aside the decision of the trial court striking out the committal proceedings.
Three grounds of appeal were filed from which three issues for determination were formulated by the appellants.
The respondents formulated one issue for determination after incorporating a notice of preliminary objection to strike out ground three of the notice of appeal as incompetent.
I shall dispose of the preliminary objection instantly.
Ground three of the notice of appeal is hereby reproduced for the ease of reference:-
“iii Error in law:-
The learned trial Judge erred in law in holding that counsel for the plaintiffs/appellants was put to an election of choosing the procedure laid down in the High Court (Civil Procedure) Rules, 1987 of Rivers State of Nigeria or the Sheriff and Civil Process Law, 1963″.
The particulars is brief and is also reproduced for ease of reference:”
Particulars of error:-
If, this Honourable Court upholds, as it is been respectfully urged to do, the 1st and 2nd grounds of appeal supra this ground of appeal succeeds.”
It is the submission of the learned counsel for the respondents that the particulars of error is incompetent for failing to demonstrate the error contained in the part of judgment complained against in the said grounds of appeal.
I agree. Several decisions of this court and those of the apex court abound to the effect that the particulars of a ground of appeal must state with sufficient clarity, the error in the judgment which one complains about.
Why the prolixity of grounds of the appeal; why the extra ground if the appeal can be determined on the first two grounds? The particulars are incompetent and consequently the said ground three is hereby struck out as it cannot stand without a supporting particular. (Refer generally to Agbonkpolor v. Adubor (2001) 6 NWLR (Pt. 710) p.716 at 725 and B.C.C.I. v. D. Stephens Industrial Ltd. (1992) 3 NWLR (PI. 232) p. 772 at 784.
The appellants’ issues are now two as follows without the third premised on the ground three which has been struck out:
Issue One
Was the learned trial Judge not wrong in failing to consider, in his ruling, whether it was necessary or not to serve on the respondents Forms 128 & 129 in the Schedule to the Rivers State High Court (Civil Procedure) Rules, 1987 when the respondents and their counsel where present in court when the judgment of late Chief the Hon. Justice B. G. Whyte was delivered at the Port Harcourt High Court and whether this failure did not occasion a miscarriage of justice?
Issue Two
Was the service of Forms 128 and 129, in the circumstances of this case, not a mere surplausage?
The respondents formulated a sole issue to wit:-
“Was the learned trial Judge right in upholding the preliminary objection and striking out the committal proceedings on the ground that the antecedent acts of the appellants were vitiated by non-compliance with the mandatory provisions of Order 9 rule 13(1) and (2) of the Judgment (Enforcement) Rules and was there a miscarriage of justice occasioned thereby?”
I find the issue formulated by the respondents as more comprehensive and representative of the thorny issue in this appeal. The appeal shall be determined on the said sole issue of the respondent.
The grouse of the appellants with the decision of the trial court is that the learned trial Judge failed to consider and rule on the fact that the presence of the respondents and their counsel in court when the order sought to be enforced was made rendered unnecessary, the service on them of the enrolled order for the purposes of a committal proceedings. In order words, it was an unnecessary act, an underserved indulgence, a “surplausage”, as the appellants term it, to have served forms 128 and 129 on the respondents. Cited in support of this submission are the cases of Abii v. Ezewiro (2001) 8 NWLR (Pt. 715) p. 364 and Abbas v. Solomon (200 l) 15 NWLR (Pt. 735) 144.
The learned counsel to the appellants posits that had the learned trial Judge averted its mind to this point and considered the case of Abbas v. Solomon (supra) which is a decision of the Supreme Court it would have decided differently. It is the submission of the learned counsel that the decision in Abbas v. Solomon would have disposed of the preliminary objection raised by the respondents. The failure of the trial Judge to avert its mind to the said decision occasioned a miscarriage of justice in that the appellants’ right to a fair hearing was thereby breached.
Responding on this issue, the learned counsel to the respondents concedes that the learned trial Judge inadvertently omitted to address the issue. Counsel however contends that the trial Judge considered the merits of the submissions of both counsel and upheld the objection. Cited in support is the case of Umoh v. I.T.G.C. (2001) 4 NWLR (Pt. 703) p. 281 at 299, the counsel for the respondents maintains that it is only when the mistake of the trial Judge is so substantial and occasions a miscarriage of Justice that the appellate court is bound to interfere. This, contends counsel, the appellants have not convincingly established.
It is further the submission of the learned counsel for the respondents that the preliminary objection was heard and disposed of on the basis of documents filed before the court. No oral evidence was led as evidence was by way of affidavit depositions with documents attached. These documents are all in the records compiled for this appeal. This court is therefore in as good a position as the trial court to examine the documents placed before the trial court. No injustice has therefore been meted out to the appellants, argues the learned counsel to the respondents.
This issue may well dispose of this appeal and I should therefore address it instantly.
Ordinarily, it is the exclusive preserve of the trial Judge to listen, watch and determine the credibility or otherwise of the witnesses who testify before it. Equally exclusive to the trial Judge is the evaluation and ascription of probative value to adduced evidence at the trial. An appellate court must be very reluctant indeed to interfere with these sacred and primary functions of the trial court unless it is shown unequivocally that the functions were carried out injudiciously, in a pervasive manner. Where however, the functions of the court includes or rests squarely on the consideration of documentary evidence which same documents are also placed before the appellate court, then the appellate court is in as good a position as the trial court to evaluate the documentary evidence.
(Refer: FSB International Bank Ltd. v. Imano (Nig.) Ltd. (2000) 11 NWLR (Pt. 679) 620 at 637, UBN Ltd. v. Ayoola (1998) 11 NWLR (Pt. 573) p. 338 at 344.)
The issue canvassed is stricto senso not a controversial one. An examination of the documentary evidence is therefore not really necessary in the sense that the real issue turns more on the interpretation of the provisions of Order 9 rule 13 of the Judgments (Enforcement) Rules. The appellants do not deny that they failed to exhibit the enrolled order to Form 128 and an affidavit to Form 129. Their contention is that it is not a requirement of the law to so exhibit these documents. On the contrary, the respondents contend that the non-exhibition of these documents to the processes served on the respondents vitiate the proceedings.
At page 98 of the records of this appeal, which is page 6 of the 17 page ruling of the learned trial Judge, the trial Judge found and held that “… By paragraphs 12-13. A careful perusal of exhibits referred to in these paragraphs will show that no drawn up order or affidavit were attached to Forms 128 and 129 as required respectively”.
The thorny question to be answered then is whether the annexation/exhibition to these forms of a drawn up order and an affidavit were a mandatory requirement of the law? To decide this issue, the trial court was again drawn into a consideration of which statute is the applicable statute or it is a combination of two or more statutes that is required? This later aspect is the subject of the cross-appeal filed by the respondents in this appeal.
The position of the appellants is that since the respondents and their counsel were in court when the order was made, it was not mandatory to serve on them, the rolled up order with Form 128 preparatory to the committal proceedings. The case of Abbas v. Solomon (supra) is cited as the authority on this submission.
The respondents contend to the contrary that the case of Abbas v. Solomon (supra) is not applicable to the situation in this appeal. The fundamental vice which afflicted the committal proceedings in Abbas v. Solomon (supra), contends the learned counsel for the respondents, and which this court and the Supreme Court held to be sufficient to vitiate the whole proceedings was the issue of the lack of a fair hearing. In the said case, the trial court, without allowing the respondents to be heard in defence for the motion for committal, first summarily had them remanded in prison custody for contempt and eventually summarily found them guilty of contempt without affording them the opportunity of being heard.
The said decision of the Supreme Court did not therefore address the bone of contention in the present appeal which is whether the provisions of Order 9 rule 13 was mandatory to a valid process for the committal procedure.
What does Order 9 rule 13 say? The said provisions are hereby reproduced for the ease of reference:-
Order 9 rule 13(1), (2) & (3) are relevant:-
“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 an injunction, at the time when the order is drawn lip 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 and it is shown –
(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.”
To the extent that the appellants seek to interfere with the liberty of the respondents by having them committed to prison for the disobedience of the court order, strict compliance with the rules is a sine quo non. The trial court did not mince words on this imperative.
His Lordship first cautioned himself with a decision of this court in the case of Ezeji v. Ike (1997) 2 NWLR (Pt.486) 206 where this court held that:-
“As committal proceedings touches on deprivation of freedom and liberty of the person the service and procedure thereof are applied strictly and any break or departure from strict application of the rules vitiates the proceedings.”
Applying this decision to the appeal before it, the trial court found and held in these terms:-
” … There is no drawn up order or affidavit attached to Forms 48 and 49 respectively. This nature of application needs strict compliance and non-compliance in the opinion of the court vitiates the whole application.
In the premises, the court had come to the conclusion that there is a glaring non-compliance which has vitiated the application. Consequently, the preliminary objection is upheld and the motion on notice dated 18/07/01 and filed on the 25/07/01 is hereby struck outt.”
It is difficult to find fault with this decision. In the case of Deduwa v. The State (1975) 1 All NLR (Pt.1) 1 at IS, Coker, JSC emphasized the import of a strict compliance when he quoted the editors of Oswald on contempt as follows:-
“It should always be borne in mind in considering and dealing with contempt of court that it is an offence purely sui generis and that its punishment involves in most cases an exceptional interference with the liberty of the subject and that, by a method of process which would in no other case be permissible or even tolerated. It is highly necessary therefore where the functions of the court have to be exercised in a summary manner, that the Judge in dealing with the alleged offence should not proceed otherwise than with great caution and only in cases where the administration of justice would be hampered by the delay in proceeding in the ordinary courts of law; and that when any antecedent process has to be put in motion every prescribed step and rule, however technical, should be carefully taken, observed and insisted upon. The jurisdiction should be exercised the more carefully in view of the fact that the defendant is usually reduced to such a state of humility in fear of more stem consequences if he shows any recalcitrancy that he is either unable or unwilling to defend himself as he might otherwise have done.” (Italics supplied, please).
Upon these premise, it is difficult not to agree with the submission of the learned counsel for the respondents that an application for civil contempt such as the one filed by the appellants is in the nature of a criminal charge and that the rules relating thereto must be strictly complied with. (Refer: Comet Products U.K. Ltd. v. Hawkex Plastics Ltd. (1971) 2 QB 67; Fawehinmi v. State (1990) 5 NWLR (Pt. 148) p. 42; Agbochom v. The State (1970) 1 All NLR p. 69 and Deduwa v. The State (1975) 1 All NLR (Pt.1) p. 111 and Anakwenze v. Tapp Industry Ltd. (1991) 7 NWLR (Pt. 202) p. 177.)
Conscious of the futility of their argument, the appellants maintain that annexing a copy of the judgment was a surplausage. This is baldadash!
The true position is that the applicants knew there was a legal requirement to annex the order therefore they annexed the judgment in the hope of getting away with failing to annex the order. Why was it necessary to annex the judgment? Was the judgment pronounced in the absence of the respondents? If it were, how did the order came to be made in the presence of the respondents? Where they chained and brought to court for the purpose of taking the order after the pronouncement of the judgment in their absence? Herein lies the futility of the contention of the appellants. The order must necessarily be annexed to the Form 48 in order to complete the process of fully complying with the requirement for committal.
It is always better to err on the side of surplausage than on omission and non-compliance.
When the domestic affairs of the court will occasion a miscarriage of justice and cause irreparable damage such as depriving a citizen of his liberty, then the lesser evil must be a better option. In this situation, the lesser evil will be to strike down the incompetent process rather than dispossess a citizen of his liberty; particularly so, as no other life or liberty is at stake. The error in process can always be corrected. Not same with liberty; once taken, nothing is ever the same again; no matter for however short a period! The argument of the learned counsel in the reply brief is therefore not convincing and of no compelling appeal.
The learned trial Judge was right in upholding the preliminary objection. The said ruling is hereby sustained and this appeal is accordingly hereby dismissed.
The respondents filed a notice of cross-appeal on the 03/05/04 upon a sole ground of cross-appeal from which a sole issue was formulated for determination.
The issue distilled from the cross-appeal is:-
“Was the learned trial Judge right to hold that the cross-respondents were at liberty to pursue the committal proceedings either on the basis of Order 42 of the High Court Rules of the Rivers State or under the provisions of the Sheriff and Civil Process Law?”
What would be the purpose of delving into this issue in the light of the decision of this court in the main appeal?
Further, in its consideration of the issue placed before it, the trial court found entirely on the provisions of Order 9 rule 13 that the appellants failed to comply with the strict provisions of the statute applicable in the subject matter of the appeal. This decision has been affirmed by this court. I think it unnecessary and I dare say this court lacks the luxury of expending valuable energy and over tasked time on a purely academic issue such as the one raised in this cross-appeal.
The issue formulated no doubt would form the basis of a very informative and enlightening treatise from a law Professor in the University.
The cross-appeal accordingly goes to no issue and is hereby dismissed.
Finally, I need to observe generally that the learned counsel for the appellants failed to comply with the provisions of Order 6 rule 3(2) of the Rules of the Court of Appeal, 2002 in both his briefs of argument i.e. the main and the reply brief. He merely listed cases without stating the summary of same as required, nor stating how such cases support his submissions. This practice should be discouraged, citing a plethora of cases without relating them directly to the issues raised does not easily advance one’s cause.
M.D. MUHAMMAD, J.C.A.: My learned brother, Dongban-Mensem, JCA, had obliged me the draft of the lead judgment in the instant appeal. On perusal I agree entirely with the reasonings and conclusions therein that this appeal has merit.
Contempt proceedings are quasi criminal in nature. In the instant case, Order 9 rule 13 of the Rules of the lower court provided for such proceedings. The lower court found that the proceedings as commenced by the appellants herein against the respondent had not been in compliance with the Rules which provided for the proceedings. Accordingly, the court aborted the proceedings. Where a statute seeks to jettison the right of a person the rule has always required strict compliance with the procedure the statute provides for doing so.
It is on this account and the fuller reasons made out in the lead judgment that the appeal must be dismissed. I so do. I also dismiss the cross-appeal in the lead judgment.
THOMAS, J.C.A.: I read before now the lead judgment of my learned brother, Dongban-Mensem, JCA just delivered.
I entirely agree that the appeal and the cross-appeal are unmeritorious and they deserve dismissal and are so dismissed.I make no order on costs.
Appeal dismissed.
Appearances
B.O. Dibiaedue;For Appellant
AND
Okey Onunkwo, Esq;For Respondent
