MRS. ETHEL C. CHUKWU & ORS v. HON. LOLO STELLA C. CHUKWU & ORS (2016)

MRS. ETHEL C. CHUKWU & ORS v. HON. LOLO STELLA C. CHUKWU & ORS

(2016)LCN/8105(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of January, 2016

CA/PH/213M/2004

RATIO

COURT: CONTEMPT OF COURT; THE ANALYSIS OF THE CONTEMPT OF COURT

In Adeniji Adele V. Ogbe (1998) 9 NWLR (Pt.567) 650 at 664 B – C, F – G Onalaja, JCA; copiously analyzed the concept of contempt of Court and citing authorities both English and Nigerian like Theophilus Adetola Awobokun & Anor v. Toun Adeyemi (1968) NWLR 290 at 294; Per Kester P.C.A Western State, Halsbury’s Laws of England, 3rd edition Vol. 8 page 7 Para. 10 Per Nnamani J.S.C. in his paper on “Abuse of Judicial process” at the All Nigeria Judges Conference, 1988; Lord Denning’s book “Due Process of Law” at page 5, Morris V. Crown Office (1970) 2 Q.B.114, Balough V. St Albans Crown Court (1975) 1 Q.B. 73 and Ezeji V. Ike (1997) 2 NWLR (Pt.486) 206 at 218, 224; and indeed his (Onalaja, JCA) “Commentaries From the Bench at pages 86, 87 at 88 and reasoned that there are two types of contempt one Criminal and the other non-criminal.
According to him, generally speaking Criminal contempt consists of words or acts which obstruct or tend to obstruct or interfere with the administration of Justice whilst civil contempt is in fact contempt in procedure consisting of disobedience to Judgment, orders or other process of Court and involving a private injury. Obiekwe Aniweta V. The State FCA/E/47/78 delivered on 16th June, 1978; R v. Gray (1900) 2 Q.B. 36; Izuora V. The Queen (1953) AC 327 at 336; all were again cited in putting the pertinent question as to the appropriate procedure to be adopted in trying contempt of Court.
In the case under consideration (Adeniji – Adele v. Ogbe) (supra), the learned Judicial Icon in the application of the facts of the case which are almost similar with the present Appeal identified the contempt as a Civil one since it entailed the disobedience of a Judgment by Counsel and held thus: “The Law applicable being Sheriffs and Civil Process Law CAP. 127, Laws of Lagos State, 1972 and Judgment (Enforcement) Rules being subsidiary Legislation made under the Sheriffs and Civil Process Law CAP 127 aforesaid now CAP, 407 Vol. 9 Laws of the Lagos State, 1994.” per. IGNATIUS IGWE AGUBE, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST FALL WITHIN THE SCOPE OF THE GROUND OF APPEAL

There is no doubt as was brilliantly submitted by the learned Counsel for the Respondents and on the authorities of Okere v. Fashawe [2006] 133 LRCN 163 at 179 Paras ZEE Per Musdahper, JSC (as he then was) that: “Issues for determination must fall within the Scope or ambit of the grounds of Appeal any issue for determination falling outside the ambit or scope of the grounds of appeal is incompetent See, Adeousola v. Akinde S. C. (120) LRCN 4683; (2004) Vol. 8 M.J.S.C. 33; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 Okoye v. Nigerian Construction & Furniture Co. Ltd. S.C. [1991] 5 LRCN 1547 (1991) 6 NWLR (Pt.199) 501.” per. IGNATIUS IGWE AGUBE, J.C.A.

PRACTICE AND PROCEDURE; SERVICE OF PROCESS; WHETHER THE SERVICE OF PROCESS IS MOST FUNDAMENTAL TO THE EXERCISE OF JUDICIAL POWERS OF A COURT

I agree completely with the learned Counsel for the Appellants that service of process is most fundamental to the exercise of judicial powers of a Court. In Ngige v. Achukwu [2005] 2 NWLR (Pt.909) 123 at 141 – 142, this Court held on the authorities of Habib Bank Ltd. v. Opomulero [2000] 15 NWLR (Pt.690) 375. Ajidaun v. Ajidaun (2000) 4 NWLR (Pt.654) 605; IBWA Ltd. v. Paex Int’l Co.(Nig) Ltd. Co. (Nig) Ltd. (2001) 7 NWLR (Pt.663) 105; that:
“No Court has jurisdiction to entertain any suit in which the processes are not served or properly served on the parties, as in the instant case; an Order made by a Court without jurisdiction is a nullity. See also Skenconsult Nig Ltd v. Ukey [1981] 1 S.C. 6. per. IGNATIUS IGWE AGUBE, J.C.A.

PRACTICE AND PROCEDURE: IRREGULARITIES IN PROCEDURE; THE EFFECT OF THE FAILURE TO COMPLY WITH STRICT IN PROCEDURAL RULES

It has to be noted and I agree completely with the submission of the learned Counsel for the Appellants that from the conduct of the learned trial Judge throughout the proceedings, he created the impression that he had already formed an adverse opinion against the Appellants at the preliminary Stage. Besides, that was a case where the contempt of Court proceedings affected the liberty of the Appellants and as was held by Niki Tobi JCA then, in the case of Akpan v. Akpan [1996] 7 NWLR (Pt.462) 620 at 626; the Law expected strict compliance with the procedural Rules and where there was the slightest deviation or non-compliance as in the instant case, a Court of law must exercise its discretion in favour of the contemnor. This is because the Law would not allow a gamble with the liberty of the individual.
In F.C.D.A. v. Koripamo – Agary (2010) 14 NWLR (Pt.1213) 377, it was held that any irregularity in procedure for committal proceedings is a fundamental vice which vitiates the entire Application. The Court further held at pages 391 – 392 of the Report that:-
” —— the notice of motion and affidavit and grounds for committal for contempt committed ex -facie curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of case demands it, which is not the case here as there was no application for substituted service of the processes on the Clerk of the alleged contemnors would not Constitute due process under the Rules of Court and so the condition precedent to initiation of the proceedings and exercise of jurisdiction would not have been met and the result is fatal to the proceedings which are thereby rendered null and void See also Aina v. Jinadu [1992] 4 NWLR (Pt.233) 90; Ogaji v. Igonikon – Digbani [2010] 10 NWLR (Pt.1202) 298 at 306; and Uhunwangbo v. Okojie (1989) 5 NWLR (Pt.122) 471 at 487. per. IGNATIUS IGWE AGUBE, J.C.A.

COURT: THE IMPLICATION OF THE FAILURE OF THE COURT TO ENTERTAIN THE MOTION TO SET ASIDE AND THE NOTICE OF PRELIMINARY OBJECTION

Indeed by refusal of the Court to entertain the Motion to set aside and the Notice of Preliminary Objection, the Court breached the rights of the Appellants to fair hearing notwithstanding the stance of the Supreme Court in Rossek & Ors. v. ACB (1993) 5 NWLR (Pt.372) 382 at 434-435 Paras. H – B. that a party who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it as it would be most dangerous to hold that suitors or their solicitors could themselves Judge whether an order was null and void, regular or irregular.
There is also considerable force in the dictum of their Lordships of the Apex Court in the above cited case, that to hold otherwise is to cloth a party against whom a Judgment is made with the discretion to decide, in his wisdom, that the Judgment is invalid and not binding on him as this would tantamount to invitation to anarchy. per. IGNATIUS IGWE AGUBE, J.C.A.

PRACTICE AND PROCEDURE: WHETHER THE APPLICATION CHALLENGING THE JURISDICTION OF THE LOWER COUNSEL CAN BE TAKEN FIRST WHEN A CONTEMPT APPLICATION IS PENDING BEFORE THE COURT

The above dictum no doubt is in line with the tradition of the Courts to guard their dignity and integrity jealously but the contention of Learned Counsel to the Respondents that the Application challenging the jurisdiction of the Lower Court could not be taken first when a contempt application is pending before the Court on the authority of Ebhodagne v. Okoye (2005) 123 LRCN 191 at 209 and in particular the dictum of Pats-Acholonu, JSC (now of blessed memory), to say the least, cannot be good law and even then it is subject to qualification. In that case, the eminent and erudite Law Lord had reasoned that there must be a combination of factors that would impinge on the majesty of a Court and likely to bring the Court to disrepute, Odium or disrespect in order for the Court to first take the matter of contempt before proceeding on the issue of jurisdiction.
According to him, “at all times it is the duty of the Court to guard jealously its powers and should give first consideration to the proceedings in contempt of its Court even when the Court is faced with the question of its competence to adjudicate on a matter from which the contempt issue arose.”
With due deference to the Learned Sage of blessed memory, this last portion of his dictum would seem to have ignored the basic position of the law as had long been laid down in a plethora of authorities like Madukolu v. Nkemdilim and Okafor v. A- G Anambra State (1991) 6 NWLR (Pt 200) 659 at 678 paras, F – G, Afro Continental v. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt.813) 303 at 917 – 318 Paras F – B, and the recent cases of Group Danone v. Voltic Nig. Ltd (2008) 7 NWLR (Pt. 1087) 668 at 667 paras. G – H and indeed of the Supreme Court in Dr. Michael Emuakpor Abeke v. Barrister A. A. Odunsi & Anor (2013) LPELR – 20640 (SC). (2013) LPELR – 200640 (SC) on the fundamental nature of jurisdiction and fair hearing in the adjudicatory system/process. per. IGNATIUS IGWE AGUBE, J.C.A.

PRACTICE AND PROCEDURE: WHETHER A PERSON IN CONTEMPT OF THE COURT CAN BE HEARD IN RESPECT OF THE MATTERS IN WHICH THEY STAND IN DISOBEDIENCE
In the last case, the Supreme Court per Ariwoola, JSC at pages 17 Paras. B – G to 18 Para. 8 stated the current position of the law thus:
“However, generally, the common law principle which precludes persons in disobedience of the order of the Court from being heard in respect of the matters in which they stand in disobedience had been settled. In Hadkinson v. Hadkinson (1952) 2 ALL ER 567 at 573; Denning, L.J opined thus:
“I need hardly say that it is very rare for this Court to refuse to hear Counsel for Appellant. No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard for the simple reason that, if he is not heard, his right of appeal is valueless.
the fact that a party to a cause has disobeyed an Order of the Court is not of itself a bar to his being heard but if the disobedience is such that, so long as it continues, it impedes the cause of Justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the Orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason shown why it should not be removed.
There are however a few exceptions to the general rule, The principle does not apply to applications by an alleged contemnor challenging the Order on the ground of lack of jurisdiction of the Court. There is clear distinction between the right to be heard in defense of the Order made and the right to enforce yet an order whilst in disobedience. See; First African Trust Bank Ltd & Anon v. Basil O. Ezegbu & Anor (1992) NWLR (Pt 264) 132, (1993) 6 SCNJ 122; (1992) LPELR 1279.”
See further Olu v. Sunday Iranloye (2007) LPELR – 8748 (CA) per Agube JCA at page 34-35 paras, G-F, Odua Investment Co. Ltd v. Tolabi (1977) 7 S.C.N.J. 600 at 617 and Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622.
Infact even on the authority of Fame Publications Ltd v. Encomuim Ventures Ltd & Ors (2000) LPELR – 6833 (CA) Per Aderemi JCA who read the Lead Judgment of the this Court quoted with approval the Judgment of Wali, JSC in F.A.T.B. v. Ezegbu (1992) 9 NWLR (Pt.264) 82 and that of Karibi – Whyte, JSC who held at page 151 of the Judgment/Report that:
“In any respectful opinion, the rule precluding hearing a contemnor before the Court is founded on principle. To every rule there are always exceptions. The exceptions to the general rule that a party in contempt may not be heard as distilled from the authorities referred to supra are: “(1) Where the party is seeking for leave to appeal against the order of which he is in contempt. (2) Where the opposition to the order is one on the ground of lack of jurisdiction. (3) Where the contemnor is seeking to be heard in defence of the Order. (4) Where it can be shown that there were certain procedural irregularities in making of the orders which irregularities make the order unsustainable.” per. IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES:

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. MRS. ETHEL C. CHUKWU
2. CHIEF HOPE OBINWANNE CHUKWU
3. NNAMDI LAWSON CHUKWU
4. KAINE CHUKWU
(ON BEHALF OF THEMSELVES AND REPRESENTING THE CHILDREN OF LATE CHIEF L. A. S
CHUKWU BY MRS. ETHEL CHUKWU) – Appellant(s)

AND

1. HON. LOLO STELLA C. CHUKWU
(FOR HERSELF AND AS NEXT OF FRIEND TO)
2. WERUCHE FAITH CHUKWU
3. LAWRENCE CHINAGOROM CHUKWU – Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): In the High Court of Imo State, in the Etiti/Isiala Mbano Judicial Division Holden at Mbano, the Respondents as Plaintiffs took out a writ of Summons dated and filed the 2nd day of May, 2003 where of they claimed as per the Endorsement therein as follows:-
“1. A DECLARATION that the Plaintiffs being wife and sons of Chief L.A. S. Chukwu of Umudike Eziama Osu Mbano within the Jurisdiction of this Honourable Court are entitled under the Law to participate in all domestic and family meetings, arrangements and ceremonies regarding his burial and funeral.
“2. PERPETUAL INJUNCTION restraining the Defendants by themselves, privies, agents and servants etc from seeking to conduct, conducting, organizing, planning or carrying out the burial and funeral rites of Chief L. A. S. Chukwu on 9th and 10th days of May, 2003 without the participation of the Plaintiffs.
“3. PERPETUAL INJUNCTION restraining the Defendants by themselves, agents, privies, servant and assigns, appropriating, tampering or howsoever dealing with the fixed assets and other properties of late

Chief L.A.S. Chukwu of Umudike Eziama Osuama Isiala Mbano Local Government or denying Plaintiffs legal right to his estate as inheritors and successors-in-title.”

Accompanying the Writ of Summons were an Authority to Sue As Next Friend pursuant to Order 11 Rules 10 and 13 of the Imo State High Court (Civil Procedure) Rules, 1988, obtained with the purported full consent and authorities of Wereuche Faith Chukwu and Chinagorom Chukwu who were then aged 14 and 12 years respectively and a Motion Exparte for Orders of interim injunction restraining the Defendants from carrying out the acts for which the perpetual injunctions were sought in the main claim and for such further order(s) as the Honourable Court would deem fit to make in the circumstances of the case.

In support of the Ex-parte Motion was a thirty-One Paragraphed Affidavit deposed to by the 1st Plaintiff (now Respondent) Hon. Lolo Stella C. Chukwu and annexed to the supporting Affidavit were documents marked Exhibits ‘A’, ‘B’, ‘C’, ‘C1’, ‘D’ and ‘D1’ respectively; a motion on notice dated 7th day of June, 2001 together with a supporting Affidavit marked Exhibit ‘E’, deposed to by

the said 1st plaintiff/Respondent; a Counter-Affidavit by Chief Lawrence Amaechi Sunday Chukwu to the aforesaid Affidavit in Support of the motion on Notice was also annexed as Exhibit E1′, and the Further Counter-Affidavit of the said Chief Lawrence Amaechi Sunday Chukwu was further annexed and marked Exhibit ‘E2’. The last document annexed to the motion Exparte was Coroners Ordinance Form D (REPORT OF MEDICAL PRACTITIONER) dated the 2nd day of April, 2003 issued by one DR. A. I. Ezimefula B.SC, MB, BS the Medical Officer of a Hospital situate at Ahiazu Mbaise, in respect of Chief Lawrence Chukwu.

From what transpired on the 6th day of May, 2003, at pages 117 to 118 of the Records, the Plaintiffs were in Court except the 3rd who was absent along with all the Defendants. C. C. Ulu Esq for the Plaintiffs/Applicants intended to move the Exparte Motion but the Court hinted the said Learned Counsel for the Plaintiffs/Applicants that: “This Court does not grant Ex-parte Application of this nature.”

C. C. Ulu Esq then orally intimated the Court that:
“The Bailiff of this Honourable Court told me and I verily believe him that he

made all possible efforts to serve the motion on Notice and was nearly Iynched. He failed to serve.”
Then the Court asked the learned Counsel,
“COURT: What do you want me to do?
“C. C. Ulu ESQ: My Lord may I orally here and now apply for substituted service. The urgency of this matter is compelling me to so apply. I humbly apply that all processes of this Honourable Court be served on the Defendants by pasting them on the wall or door of the House or Compound of their last known place of abode i.e. Umudike Eziama Osuama in Eziama Isiala Mbano L.G.A.
COURT: Order as prayed’
It is the order of this Honourable Court, i.e. Writ of Summons and motion on Notice etc be served on all the Defendants by means of pasting same on the door or wall of the House or Compound of their last known place of abode i.e. UMUDIKE EZIAMA OSUAMA IN EZIAMA ISIALA MBANO L.G.A. It is the further order of this Honourable Court that such mode of service if and when effected shall be and is proper service. Since the 1st Applicant is suing for herself and as Next Friend of the 2nd and 3rd Applicants their presence can be dispensed with, so that they can

attend classes.
C. C. Ulu Esq says the Motion on Notice is coming up tomorrow.
COURT: Application so adjourned”

On the 7th day of May, 2003 when hearing resumed, the Plaintiff was present while the Defendants were absent and S. I. Nze Esq with C. C. Ulu Esq appeared for the Plaintiffs/Applicants, the Defendants were not represented. The Court at page 118 of the Records, remarked that when the matter came up the previous day for the Exparte Application, the Honourable Court refused to grant it but ordered the Defendants to be served/put on notice where upon Counsel said there was a motion on Notice but the Bailiff was having difficulty in serving it and the Court on the Application of learned Counsel for the Plaintiffs/Applicants granted and made an order for substituted service.

According to the learned trial Judge, he had seen in the Court’s file an Affidavit of service certifying that the order of substituted service was effected as ordered.

S. I. Nze Esq. then referred the Honourable Court to Order 8 Rule 17 of the Imo State High Court (Civil Procedure) Rules, 1988 and prayed the Court that owing to the urgency of the matter,

they be allowed to move their motion since there was proof of service.

The Court in reaction to the above submission of the learned Counsel to the Plaintiffs/Applicants, quoted and reproduced the Provisions of Order 8 Rule 17 of the High Court (Civil Procedure) Rules of Imo State, 1988 on the need for the Court to give special leave to the contrary, otherwise there shall be at least two clear days between the service of a Notice of Motion and the day named in the Notice for Hearing the Motion.

Thereupon, S. I. Nze goaded the Court to the effect that the event they were seeking to restrain was to take place between the 9th and 10th of May, 2003 and to wait till then would defeat the whole purpose of the Application and the Court then ruled that it would exercise it discretion in favour of allowing Counsel to move his motion. Upon the above exercise of the Court’s discretion in their favour, the learned Counsel for the Plaintiffs/Applicants proceeded to move the Motion on Notice and urged that a copy of the Order (if made), be endorsed to Accession mortuary where the Corpse of the deceased Lawrence A. S. Chukwu was deposited.

In his Ruling

delivered the same 7th of May, 2003, the Learned Trial Judge Ngozi Opara J; granted the prayers of the Plaintiffs/Applicants and restrained the Defendants Jointly and severally by themselves, agents, privies, servants and relatives from seeking to organize, conduct, conducting Planning, making any publications or otherwise carrying out the burial and funeral rites of late Chief LAS Chukwu at Umudike Eziama Osuama Isiala Mbano without the participation of the Plaintiffs pending the determination of the substantive suit.

The Defendants were also by themselves agents, servants and privies further restrained from tampering with or disposing of title to any fixed assets or personal property of late Chief LAS Chukwu aforesaid pending the determination of the substantive suit and the Court finally ordered that the said order when drawn up was to be endorsed to the management of Ascenssion Mortuary, Agalla in Owerri North.

Following the grant of the orders of interlocutory injunction, the Plaintiffs/Applicants filed Form 48 (Notice of Consequences of Disobedience of Court Order) on the 7th of May, 2003 followed by a motion on Notice dated 13th day of May,

2003 and filed on the 26th of May, 2003 which motion was fixed for hearing on Wednesday, 28th May, 2005. That Motion brought pursuant to Order 42 Rules 1 and 2 of the Imo State High Court (Civil Procedure) Rules, 1988 prayed for an Order committing the Defendants/Respondents namely: Mrs. Ethel Nwachukwu, Chief Hope Obinwanne Chukwu, Nnamdi Chukwu and Kaine Chukwu to prison for disobeying the Court Order of 7th day of May, 2003 made by the Honourable Court; and for such Order(s) as the Court would deem fit to make in the circumstance.

In support of that Motion was an Affidavit of fourteen Paragraphs to which the Form 48 earlier issued against the Defendants/Respondents, the order of Court dated the 7th day of May, 2003 which was said to have been violated by the Defendants/Respondents, marked Exhibits ‘A’ & ‘B’ respectively (see pages 54 to 61 of the Records), were annexed.

On the 24tn day of June, 2003 the Defendants/Respondents through their Counsel Livy Uzoukwu, SAN filed a motion on Notice dated 23rd June, 2003 praying for an Order setting aside the Order of Interlocutory injunction made in the proceeding against the

Defendants/Respondents/Applicants on the 7th day of May, 2003 which Order was annexed to the motion as Exhibit C’ on the ground that the said Order was a nullity. The said Motion was supported by an Affidavit of Five Paragraphs. Also annexed to the Affidavit in support were the Writ of Summons in the substantive Suit marked Exhibit “A”; the purported Affidavit of service by pasting as sworn to by the Bailiff of the Honourable High Court marked Exhibit “B” and another Affidavit of Service by pasting at Umudike Eziama, Isiala – Mbano marked Exhibit D. See pages 70 -78 of the Records. That motion was fixed for hearing on 25th June, 2003.

On the 28th day of May, 2003 the case came up for the hearing of the Plaintiffs/Applicants motion for committal and while the Plaintiff was present, the Defendants were absent. However while S. L. Nze Esq appeared with C. C. Ulu Esq for the Plaintiffs/Applicants, A. N. Onyeka appeared for the Defendants/Respondents and the motion was adjourned to the 11th of June, 2003. On that 11th day of June, 2003 parties were absent and where as Nze Esq and Ulu Esq appeared for the Plaintiffs/Applicants, A. N. Onyeka Esq for the

Defendants/Respondents was absent but wrote to the Court saying that he had applied for the transfer of the case out of Court and Livy Uzoukwu, SAN wrote intimating the Court that he was the new Counsel handling the case and also sought for an adjournment. The case was therefore adjourned to the 25th day of June, 2003. (See page 123 of the Records).

On that 25th day of June, 2003, the 1st Plaintiff was present while other parties were absent and whereas E. V. Onyegbu Esq with S. I. Nze appeared for the Plaintiffs/Applicants, C. E. Udumaga Esq appeared for the Respondents (then Defendants). There was a long dialogue between the respective learned Counsel on the absence of the Defendants/Respondents and the fact that the Defendants/Respondents filed an Application which was slated for hearing on that day. Subsequently the learned Trial Judge deprecated the attitudes of the Defendants and their Lawyers which showed that they were aware of the proceedings of the day yet they failed to attend Court in a quasi-Criminal matter of which the law required them to be present in person. He referred to the two letters of Udumaga Esq. and Livy Uzoukwu, SAN for

adjournment on the last hearing date and subsequently upon the application of Onuegbu Esq for the Plaintiffs/Applicants Ordered for a Bench Warrant to issue against the Defendants to compel their arrest and detention while the matter was again adjourned to the 1st day of July, 2003 for the Defendants to be brought to show cause why they should not be imprisoned for contempt.

On the 16th day of July, 2003, parties were absent and while Livy Uzoukwu, SAN with Miss G. Osuji appeared for the Defendants/Respondents, there was no appearance for the Plaintiffs/Applicants. The Court consequently remarked that the Defendant’s were absent again that day in spite of the Order of Court for their arrest. The Court further remarked that it was informed by the Clerk of Court that the Bench warrant was sent to Owerri and that it was wrong as the said warrant ought to be sent to Isiala Mbano Police. The case was however adjourned to the 29th day of July, 2003 with the consent of the learned Counsel for the Defendants/Respondents who undertook to inform one of the Defendants Mrs. Ethel C. Chukwu of the date.

Then came the 29th day of July, 2003 and the 1st Plaintiff

and 1st Defendant were present while others were absent. Chief E. V. Onuegbu with K. F. Ibekwe Esq appeared for the Plaintiffs and Livy Uzoukwu, SAN with C. E. Udumaga Esq as well as G. Osuji Esq appeared for the Defendants/Respondent. Livy Uzoukwu SAN informed the Court that in line with his undertaking the 1st Defendant/Respondent was in Court, where of Chief Onuegbu for the Plaintiffs/Applicants as usual harped on the absence of the other Defendants inspite of the issuance of the Bench warrant against them.

Against this background, the Learned Counsel for the Plaintiffs/Applicant insisted that where there were two Applications pending in Court as in the case now on Appeal, the Court ought to deal with their Application for contempt of Court before any other. He therefore insinuated that the Defendants who had deliberately frustrated the pending committal proceedings be dealt with according to Law and in particular that the 1st Defendant/Respondent who was in Court be remanded in prison Custody pending the availability of her Co-Respondents.

In so submitting he relied on the authority of Fame Publications Ltd. v. Encomium Ventures Ltd &

Ors. (2003) FWLR (Pt.9) 1440 at 1444; to urge the Court to hold that the deliberate acts of the Respondents depicted their unreadiness to purge themselves of the alleged contempt but were minded to undermine the integrity of the Court.

In his reply to the submissions of Chief Onuegbu, Livy Uzoukwu SAN intimated the Court that on 16/7/2003 he informed the Court that the 2nd – 4th Respondents were outside the Country and not resident within Nigeria as the 2nd resided in South Africa, the 3rd in South Korea while the 4th resided in the United States of America. The learned Senior Counsel then drew the Court’s attention to the fact that there were two Applications pending in Court from the Defendants, the first which was filed on the 24th day of June, 2003 and prayed for the setting aside of the Order which the Defendants purportedly breached on the ground of nullity.

He submitted that on the same authority earlier relied upon by the learned Counsel for the Plaintiffs in urging that the 1st Defendant be remanded in prison Custody which was also reported in (2000) 8 NWLR (Pt.667) 105 at 112 Paras. E – F; the Court was under a legal obligation to hear the

parties more so where there was a Notice of Preliminary Objection challenging the competence of the entire suit and the jurisdiction of the trial Court to entertain the suit. The learned Senior Counsel stressed on the need for Priority to be given to the determination of the issue of Jurisdiction before the Court could proceed further to hear the case. In support of the above submission he placed reliance on Nokoprise Int Coy. Ltd. v. De Best Trading Corp, (1993) 9 NWLR (Pt.520) 334 at 344; Nwosu v. Imo State Environment Protection Authority (1990) 2 NWLR (Pt.135) 688 at 726/7 and Afro Continental Nig. Ltd, V. Co-Operative Association of Professionals Inc. (2003) 5 NWLR (Pt.813) 3003 at 317 Para. G.

On the Application by the learned Counsel for the Plaintiffs/Applicants for the 1st Defendant’s remand in prison Custody, the learned Senior Counsel for the Defendants/Applicants posited that on the authority of Omoijahe Omoru (2000) FWLR (Pt.29) 2401 at 2474 Para. H; it would be wrong to punish the 1st Defendant who had voluntarily appeared in Court and subsequently find out that the Court had no jurisdiction to entertain the Suit more so, when the alleged

contempt committed by her was ex-facie curiae which required full criminal trial before any punishment of any nature was meted out to her.

The learned Counsel for the Plaintiffs/Applicants replied on points of Law and urged the Court to discountenance the submissions of the learned Senior Counsel on the grounds that the Defendants/Respondents had not complied with the provisions of Order 13 Rule 7 and that it was in the Course of hearing the Application for committal that Court would consider whether it had jurisdiction and give the Defendant a hearing. He then called on the Court not to advert to the Applications of the Defendants/Respondents.

In his Ruling the learned Trial Judge discountenanced the submissions of the learned Senior Counsel on for the Appellants, the grounds that there was no affidavit in support of the fact that the 2nd – 4th Respondents were resident outside Nigeria and that the learned Counsel/Defendants did not enter conditional or unconditional appearance and as such lacked the locus to file the Applications challenging the competence of the suit and the order sought to have been violated. The learned Trial Judge

thereafter ordered that the 1st Respondent who was in Court was going to be remanded at the Federal Prisons Okigwe Imo State until others were brought before the Court. He then re-issued the warrant of Arrest of the Defendants/Respondents.

At page 137 of the Records it is recorded thus:
“NB
The Court rose to consider the Ruling. On resumption, when the case was called up, the 1st Defendant was away. The Police Court Orderly Goodluck Amadi PC No.32830 said he saw her leave in her Car.Â Members of the Bar expressed their embarrassment. These are Barristers F. C. Dike and P. I. Okpara amongst others. They prayed that an order for arrest be immediately made.
COURT: Livy Uzoukwu Esq, SAN – Your Client is not in Court now. Assuming that she does not show up today or subsequently, what do we do.
Answer: I would rather prefer being given the opportunity to find out why she left the Court without informing me. If I find out and I am not satisfied I know what to do. Wants the matter to be adjourned to the 31st day of July, 2003.”

Chief Onuegbu for the Plaintiffs/Applicants expressed surprise that the learned Senior Advocate did not

express disgust over what transpired and went further to urge the Court to make an order for the arrest and detention of the 1st Defendant/Respondent in order to protect the integrity of the Court. He finally conceded to the adjournment sought only on the condition that the Court made the Order for the arrest of the 1st Defendant/Respondent as sought.

In his second Ruling the learned Trial Judge remarked that he had never seen such a thing before as according to him, the Honourable Court had not risen but just stood down the matter to consider the Ruling which nobody knew yet how it would go but that the 1st Defendant decided to drag the integrity of the Court to the mud and left without a word even to her Counsel, a Senior Advocate of Nigeria for that matter. According to him, the attitude of the Defendant depicted loss of confidence even in her Counsel which all well meaning people should rise up and condemn the depicted behavior of the Defendant. He subsequently agreed with the learned Counsel for the Plaintiffs/Applicants’ request for an order restraining the Defendant from fleeing which was duly made for the arrest and detention of the 1st

Defendant until the 31st day of July, 2003.

When hearing resumed on the 31st day of July, 2003, Chief E. V. Onuegbu with C. U. Onuegbu (Mrs.) appeared for the Plaintiffs/Applicants and the learned Senior Advocate for the Defendant wrote for an adjournment which the learned Counsel for the Plaintiffs/Applicants vehemently opposed on the ground that the learned Senior Counsel who sought for the adjournment was not handling the matter personally.

The Court after remarking that the Application was a boggey rejected the letter and ordered that he would go ahead to read that Ruling (see page 140 of the Records). Again, on the proddings of the learned Counsel for the Plaintiffs that in view of the fact that the Defendants who were still absent deserved to be convicted in absentia, and that the 1st Defendant who absconded from Court was in contempt in facie curiae as proceedings were going on when she escaped; he then urged the Court to punish her by imposing a sentence that would serve as a deterrent to others, So that the sitting and orders of the Court would not be in vain and the system would not collapse. As for the substantive Application, he

submitted that the Defendants/Respondents who had briefed Counsel had not filed any Counter-Affidavit and deliberately frustrated the hearing of the Application thereby constituting a clog in the wheel of adjudication. Accordingly, the trial Court was urged to hear the Application in the absence of the Defendants/Respondents and convict them in abstentia.

On the objection challenging the competence of the order of interlocutory injunction and the jurisdiction of the Lower Court, the learned Counsel for the Plaintiffs/Applicants urged the Court to strike them out for being baseless. In his final Ruling at page 141 of the Records, the learned Trial Judge thus held:
“RULING
On the 1st issue, that of the Respondent Mrs. Ethel Chukwu who escaped from the Court while the Ruling was being considered. It is not difficult to deal with. This is contempt in facie curiae and I can deal with summarily which f now proceed so to do.
ORDER: The 1st Respondent, Mrs. Ethel Chukwu who flew in the face of the Honourable Court by absconding while the proceeding was still on is hereby convicted for contempt of Court and sentenced to a term of one (1) month

imprisonment with hard labour. She is to be at Government Prisons Okigwe. On the main or substantive Application since they the Respondents filed no Counter-Affidavit, all the necessary forms served on the them i.e. Forms 48 and 49 according to the Honourable Court’s Record, I have no other option, than to allow the applications of the Applicants to convict them individually for contempt of Court.
In the circumstances each and every one of them i.e.1st 4th viz:
Mrs. Ethel C. Chukwu,
Chief Hope Obinwanne Chukwu,
Nnamdi Chukwu and
Kaine Chukwu
is hereby convicted of contempt of Court and each is to serve a term of 3 months with Hard Labour and Kept at the Federal Prisons Okigwe. All applications filed by the absent Respondents are hereby struck out.”

Dissatisfied with the above Ruling of the learned Trial Judge, the Defendants who shall herein after be addressed as Appellants, appealed via Notices of Appeal one of which was with Six (6) Grounds dated and filed the 5th and 6th days of August, 2003. The said Grounds of Appeal without their respective particulars are hereunder reproduced as follows:-
“GROUND ONE:

ERROR IN LAW
The trial Court erred in Law when it refused to grant the application for adjournment made by Counsel for the Appellants on 31st July, 2003.
“GROUND TWO: ERROR IN LAW
The Trial Court erred in Law when it struck out the Application challenging the validity of its order of 7th May, 2003 upon which the Application for committal proceedings was based.
“GROUND THREE: ERROR IN LAW:
The Trial Court erred in law when it ignored the Application challenging the competence of the Action and Jurisdiction of the Court to entertain the matter and went ahead to hear the Application seeking to commit the Appellants to prison.
“GROUND FOUR: ERROR IN LAW
The Trial Court erred in law when it convicted and sentenced the 1st Appellant to one month imprisonment for an alleged contempt in face of the Court.
“GROUND FIVE: ERROR IN LAW:
The Trial Court erred in law when it convicted and sentenced the Appellants to 3 months imprisonment each for an alleged breach of its order.
“GROUND SIX: ERROR IN LAW: The Trial Court erred in Law when it tried, committed and sentenced the Appellants in absentia.
“4. RELIEFS

SOUGHT:
(a) That the Appeal be allowed
(b) That the order of the trial Court convicting and sentencing the Appellants for an alleged contempt be set aside.
(c) That the order striking out the Application challenging the validity of the order of the trial Court of 7th May, 2003 be set aside.
(d) That the Application challenging the competence of the action, the jurisdiction of the Court to entertain it and the validity of the order made on 7th May 2003, be remitted to another Judge to hear and determine same

Following the transmission of the Record of Appeal to this Honourable Court, Briefs of Argument were exchanged by the respective learned Counsel for the parties and in the Appellants’ Brief of Argument settled by the F. N. Madubuike Esq of D. C. Denwigwe & Associates which Brief is dated the 3rd day of June, 2005, two Issues were nominated for determination as couched and reproduced hereunder:-
“(a) WHETHER THE DECISIONS AND ORDERS OF THE LOWER COURT AFFECTING THE APPELLANTS’ RIGHTS TO FAIR HEARING AND PERSONAL LIBERTY ARE JUSTIFIED IN THE CIRCUMSTANCES OF THE CASE? AND IF NOT.
(b) WHETHER OR NOT THE

ORDERS SHOULD BE SUSTAINED?

On the part of the Plaintiffs (now Respondents), I. F. Akponye, Esq who settled their Brief of Argument, upon being served filed a Notice of Preliminary Objection Pursuant to Order 10 Rule 1 of the Court of Appeal Rules, on the 20th day of November, 2007 but dated 12th November, 2007. The Grounds upon which the Objection was predicated are stated as follows:-
“1. That the Notice of Appeal did not comply with order 4 Rule 3 (1) of the Court of Appeal Rules, 2002 (then Order 16 Rules (1) of the Court of Appeal Rules 2007): This being an Appeal against the conviction and sentence of the Appellants to terms of imprisonment the Notice of Appeal should disclose relevant particulars in line with the Rules.
“2. That the Notice of Appeal did not comply with the provisions of Order 4 Rule 4 (1) of the Court of Appeal Rules, 2002 (then Order 16 Rule 4 (1) of the Court of Appeal Rules of 2007), The Notice of Appeal was not signed by any of the Appellant. It is consequently incompetent,
“3. That this Court’s Rules do not recognize Joint Notice of Appeal against a sentence. There should have been separate Appeals

signed by each of the Appellants.
“4. That there are 3 different Notices of Appeal in respect of this Appeal. There was no leave of this Honourable Court for the withdrawal of any of them, neither was there any leave to amend any of the said Notices to accommodate the various Grounds raised in them. The 1st Notice of Appeal was filed for all the Appellants jointly through the Learned Counsel, C. E. Udumaga of Livy Uzoukwu, SAN on 5/8/2003 said to be against the decision of the Lower Court of 31st July, 2003. The 2nd Notice of Appeal was filed by the same learned Counsel for all the Appellants on the 6/8/2003 said to be against the decision of the Lower Court on the 29 July, 2003. The 3rd Notice of Appeal also filed by the same learned Counsel for all the Appellants by S. A. Kolawole Esq of the same Chambers on 14/8/2003 said to be against the orders of the Lower Court dated 29th July, 2003 and said to have been delivered on 31 July, 2003” All these Notices of Appeal form Part of the same Records of this Court,
“5. That from the Records of the Court the Appellants’ Brief of Argument was filed before the Records were compiled by the

leave of the Court for Departure from the Rules granted by this Court. That this clearly means that there is no proper Appellants’ Brief to sustain the Appeal.
“6. That generally this Appeal constitutes an abuse of the processes of the Honourable Court and ought to be dismissed.”

The arguments in support of the Preliminary Objection are articulated from Paragraph 3.0 to 3.6.8 of the unpaged Respondents’ Brief of Argument and in the alternative of the Preliminary Objection not succeeding the learned Counsel for the Respondents distilled a Sole Issue for determination which is:
WHETHER FROM THE ENTIRE CIRCUMSTANCES AND FACTS, THE COURT BELOW WAS RIGHT IN CONVICTING AND SENTENCING THE APPELLANTS FOR CONTEMPT OF COURT?”

Upon being served with the Notice of Preliminary Objection and the Respondents Brief of Argument the learned Counsel for the Appellants (O. S. Akinola Esq) of D. C. Denwigwe, SAN & Associates filed the Appellants’ Reply Brief dated 21st October, 2015 same date and on the 21st day of October, 2015 the respective learned Counsel adopted their aforesaid respective Briefs.
ARGUMENTS AND DETERMINATTON OF THE NOTICE OF

PRELIMINARY OBJECTION.

In arguing the first Ground of the Preliminary Objection, I. F. Akponye Esq. contended that the Notice of Appeal of the Appellants did not comply with Order 4 Rule 3 (1) of the Court of Appeal Rules, 2002 (then Order 16 Rule 3 (1) of the Court of Appeal Rules, 2007) which he reproduced and submitted that the 2nd Schedule to the Rules required that the Notice of Appeal shall be addressed to the Registrar of the Court and set out clearly the offence for which the Appellant was convicted before stating the Grounds.
Moreover, the Appeal being against the conviction and sentence of the Appellants to terms of imprisonment, the Notice of Appeal ought to disclose relevant particulars of the trial and conviction and such Notice of Appeal has to be witnessed by a witness who also must affix his signature and address on the Notice shortly after the signature of the Appellant.

According to the learned Counsel to the Respondents/Objectors, there was no compliance at all or whatsoever with these mandatory provisions of the Rules by the Appellants who chose/elected to follow Order 3 Rule 2 of the Court of Appeal Rules which deals with

Civil Appeals in preparing and filing the Notice of Appeal rather than Order 4 Rules 3 (1) which deals with appeals against conviction and sentence which renders their Notices of Appeal grossly defective and a nullity.

Citing, Solanke V. Somefun (1974) 1 S.C. 141 Per Sowemino, JSC, Kacha V. Vazid (2001) 17 NWLR (Pt.742) 431, Ibodo V. Enarofia (1980) 5 – 7 S.C. 42; DR. Aina V. Miss Aina (1986) 2 NWLR (Pt 22) 316; Olusesi V. Oyelusi (1986) 3 NWLR (Pt.31) 634; John V. Black (1998) 1 NWLR (Pt.72) 698 and Dambam V. Lee (2000) 11 NWLR (Pt.779).??On the need to comply with Rules of Court, it was submitted that the Appellants had no reason for not complying with the Rules of Court as stipulated by the use of the word “shall” in Order 4 Rule 3 (1) of the Court of Appeal Rules, 2007.

On the second Ground of their Objection that the Notice of Appeal did not comply with the provisions of Order 4 Rule 4 (1) of the Court of Appeal Rules, 2002 (then Order 16 Rule 4 (1) of the Court of Appeal Rules 2007), the learned Counsel for the Respondents also reproduced the provisions of that particular Rule and posited that an appeal against convictions and sentence of the

Appellants for contempt of Court is Criminal in nature and the Notice of Appeal must follow the provisions of Rules regulating Criminal Appeals as it has long been settled that contempt matters are criminal or quasi-criminal in nature and as such the Appeal ought not be a Civil Appeal.

Against the above background, it was contended by the Respondents learned Counsel that the failure of the Appellants to individually sign the Notice of Appeal as provided by Order 4 Rule 4 (1) of the Court of Appeal Rules, 2002 is fatal and renders the Notices of Appeal filed incompetent. For the above submission reliance was placed on the authorities of Uwazurike & Ors. v. A. G. Federation (2007) 149 LRCN 1449 at 1446 per Ogbuagu, JSC and Adekanye V. Federal Republic of Nigeria (2005) 13 NWLR (Pt 949) 433 at 454 – 456.

As for the third Ground of Objection which is that this Court does not recognize joint Notice of Appeal against sentence as there should have been separate Appeals signed by each of the Appellants, the learned Counsel for the Respondents also referred us further to the operative words in Order 4 Rule 4 (1) of the Court of Appeal Rules (then Order 16

Rule 4(1), 2007), which are “Every Notice of Appeal” and “himself which provisions had been interpreted also in the Uwazurlke V. A. G. Fed. (supra) case at page 1464. It was contended on the above authority that since the Notices of Appeal in this case were signed by the learned Counsel for the Appellants, and the Appeal was brought jointly on behalf of all the Appellants, their Appeal is incompetent as the Notices of Appeal are void as decided again in Uwazurike v. A. G. Federation (supra) at page 1464.

On the Fourth Ground of Objection which relates to the existence of three different Notices of Appeal in respect of this Appeal, the learned Counsel for the Respondents also pointed out that no explanation had been given to the Court for existence of these three Notices of Appeal nor was there any leave for the withdrawal of any of the Notices of Appeal or to amend any of them to accommodate the various Grounds raised therein. He gave details of the different Notices of Appeal as filed by the respective learned Counsel for the Appellants on different dates which Notices all form parts of the Record of Appeal. The learned Counsel then

reiterated that Order 4 Rule 4 (1) of the 2002 Rules (then Order 16 Rule 4 (1) of the 2007 Rules); did not envisage multiple Notices of Appeal from the same Appellant for the hearing of the Appeal.

He further contended that even if more than one Notice of Appeal was filed, the leave for the Court must be sought and obtained for either the consolidation of the Appeals or amendment of the Notice of Appeal or even withdrawal of any of them which the Appellants in this Appeal did not do, thus leaving the Court in quandary. Accordingly, he submitted that the Notices of Appeal are vexatious, oppressive and generally constitute an abuse of the processes of the Court and therefore should be dismissed on the authorities of Okafor V. A. G. Anambra State (1991) 5 LRCN 1497; Saraki V. Kotoye (1992) 9 NWLR 156 at 188 Paras, E – G Per Karibi -Whyte, JSC, Amafule V. State (1998) 2 NWLR (Pt.75) 156 and African Re-insurance Corp. V. JDP (2003) 106 LRCN 539 at 560P.

For Ground Five of the Objection which is that the Appellants’ Brief of Argument was filed before the Bundle of papers constituting the Records of this Appeal, was allowed by the Honourable Court, the

learned Counsel for the Respondents also posited that from the Records, the Appellants’ Brief was filed on the 8th of June, 2005 before the Records of Appeal were compiled with the leave for Departure from the Rules granted by the Court which according to learned Counsel means that there is no proper Appellants’ Brief before the Court to sustain the Appeal.

It was therefore his view that the provisions of Order 6 Rule 2 of the Court Appeal Rules, 2002 (then Order 17 Rule 2 of the Court of Appeal Rules, 2007), was not complied with.

He explained that the 2007 Rules allowed only 45 days within which an Appellant could file his Brief of Argument while that of 2002 which was operative at the time the Brief was filed allowed only 60 days. Against the foregoing background, it was therefore the contention of the learned Counsel for the Respondents that unless the above conditions were met, there can be no valid Appellants’ Brief of Argument as it is trite that you cannot put something on nothing – Macfoy v. U.A.C. (1961) 3 ALL ER 1168 refers.

It was his further view that the Appellants’ Brief of Argument can only be filed after the Records have been

compiled and forwarded by the Registry of the Lower Court and in the circumstances of this case, the date the Records were compiled to the satisfaction of this Court upon the leave for Departure from the Rules to compile the Records.

According to him aside from the fact of the Appellants’ Brief being filed before the granting of leave for a departure from the Rules, there was no prayer in the Application for the Bundle of Documents to be deemed as duly filed and served and that in the absence of such prayer, the bundle of documents annexed to the Application were mere annexure.

In the light of the above submissions the learned Counsel for the Respondents urged us to hold that there exists no Records for the determination of this Appeal which accounts for the absence of an Appeal Number and further accounts for the Appeal only carrying a Motion Number.

Finally, the learned Counsel for the Respondents submitted that even though leave to compile Records was granted, no proper compilation has been done or deemed to have been done by the orders of this Court and consequently, the Appeal cannot be heard without proper Records.

APPELLANTS’

REPLY TO THE PRELIMINARY OBJECTION:
In their Reply to the contentions of the learned Counsel for the Respondents on the Preliminary Objection as highlighted above, O. S. Akinola Esq for the Appellants in respect of Grounds 1, 2 and 3 of the Objection, submitted that the learned Counsel for the Respondents’ submissions on the said Grounds were misconceived. According to him, the action from which the Appeal emanated is a civil action as the processes that led to the order of the Court which was allegedly disobeyed were also civil and the contempt is also civil or non-criminal.

For this submission he relied on Adeniji Adele V. Ogbe [1998] 9 NWLR (Pt.567) 650 at 664 Paras. B – C, F- G.

He maintained that civil- contempt proceedings though-quasi-criminal, is still civil proceedings and consequently, appeals against the decision of Court in the proceedings is a civil Appeal. Ikimi V. Omanuli [1995] 3 NWLR (Pt.383) 355 at 363 -364 H – D.

It was also pointed out that civil contempt proceedings are brought under the Provisions of the Sheriffs and Civil Process Act or Law and Judgment Enforcement Rules and not under the Criminal

procedure Act or Law just as the Respondents did at the Lower Court. Uhumnwangho V. Okojie [1989] 5 NWLR (Pt.122) 471 at page 482 – 486 which clearly shows that civil contempt Proceedings are conducted under the Sheriffs and Civil Process Act together with Judgment Enforcement Rules was cited to buttress his submission.

Being a Civil Proceeding, he maintained, the appropriate Notice of Appeal is the one contemplated by Order 6 Rules 2 (1), (2) & (3) of the Court of Appeal Rules, 2011 for Civil Appeals and not as provided in Order 17 Rule 3 (1) of the Rules which makes specific provisions for Criminal Appeals and as such, the Appellants were entitled to file a Joint Notice of Appeal in which their interest and Reliefs sought from this Court are the same. In the same vein, the learned Counsel for the Appellants insisted, since the same proceedings of the Court led to the decision against which the Appellants have now appealed to this Court, and not being a criminal Appeal, the Appellants need not sign the Notices of Appeal personally as their Counsel is entitled to sign the Notice which is valid as it is. In the light of the above, the learned Counsel for

the Appellants therefore took the view that the case of Uwazurike v. A. G. Federation (supra) relied upon by the learned Counsel for the Respondents does not apply to this Appeal in that the afforested case is a pure Criminal Appeal and the situation would have been different if the Appellant were tried, convicted and sentenced under a criminal contempt, proceedings conducted under the Criminal Procedure Act/Law.

As regards the complaint of filing multiplicity of Notices of Appeal, the learned Counsel for the Appellants contended that these alone do not constitute an abuse of process provided the Appellants showed the Particular Notice of Appeal they were relying upon, while abandoning the rest of the Notices of Appeal. For the above submission, the learned Counsel relied on Adeleke v. O.S.H.A (No.2) [2006] 11 NWLR (Pt 990) 136 at 151 Paras B – E, 153 Paras A – B; Ifekandu v. Uzoegbu [2008] 15 NWLR (Pt.1111) 508 at 518 Paras A – B; S.B.N. V. C.B.N. [2] 6 NWLR (Pt 1137) 237 at 267 Para E; Akeredolu V. Akinremi [1986] 2 NWLR (Pt.25) 710 and Onwe v. State [1975] 9 – 70 S.C. 41.

On the specific references made at page 3 of the Appellants’ Brief

to the Notice of Appeal contained in pages 84 – 87 of the Records, on which the Appellants hoisted their Appeal, the learned Counsel for the Appellants pointed out that they reiterated the same position at page 11 of their Brief that their Appeal is anchored on 6 (six) Grounds and that the two Notices of Appeal on pages 88 – 91 and t02 – 105 of the Records have been abandoned. For the avoidance of doubt the learned Counsel reiterated their abandonment of the Notices of Appeal on pages 88 – 91 and 102 – 105 of the Records and his application to prosecute their Appeal solely on the Notice of Appeal dated and filed on 5/8/2003 with Six (6) Grounds.

As regards the contention that the Brief of Argument of the Appellants was filed outside the statutory period and before the Records were compiled, the learned Counsel for the Appellants explained that in order to fast track the speedy hearing of the Appeal, they pursuant to Order 7 Rule 2 of the Court of Appeal Rules, 2002 then applicable at that time, compiled the Records and in line with the said Rule applied and prayed the Court to grant departure from the Rules and hear the Appeal on the bundle of papers

already compiled, settled and filed with the Application by the Appellants.

On the 24th of February, 2005, the Honourable Court granted the order for departure from the Rules on the basis of the Records already settled and compiled and filed together with the Application for Departure from the Rules, the learned Counsel further pointed out. He added that the Appellants subsequently filed their Brief of Argument dated 3/6/2005 on 8/6/2005 after the grant of the Application for Departure from the Rules on 24/4/2005.

As for the contention by the learned Counsel for the Respondents that Appellants’ Brief of Argument was filed before the Bundle of documents that constitute the Records were allowed by the Court, the learned Counsel for the Appellants submitted that their Brief was filed consequent upon the grant of the Application for Departure from the Rules and no miscarriage of justice has been suffered by the Respondents or occasioned by the departure granted by the Honourable Court based on the already compiled Records and duly served on the Respondents who have not complained of the omission of any relevant parts of the Records or that same did not

represent what transpired at the Court below.

We were from the foregoing therefore urged to do substantial justice and allow the Appeal to proceed on the Records compiled as the current leaning of the Court is to do substantial justice when no miscarriage of justice has been occasioned. Famfa Oil V. A. G. Federation (2003) 18 NWLR (Pt.852) 433 at 469 D-F, 471 – 472; was relied upon in so submitting and urging the Court to overrule the Preliminary Objection and hear the Appeal on the merit.

DETERMINATION OF THE PRELIMINARY OBJECTION
I have carefully considered the submissions of the respective learned Counsel on the Preliminary Objection and am of the candid view on the first Ground of Objection that even though the Appellants were convicted and sentenced to terms of imprisonment, the proceedings leading to the order that was purportedly violated were civil in nature as can be gleaned from pages 1-53 of the Records. It only assumed a quasi-criminal nature from pages 54 – 64 when the Respondents filed Forms 48 and 49 and the Motion for Committal of the Appellants which led to their eventual conviction and sentence in absentia.

As rightly argued by the learned Counsel for the Appellants, the contempt allegedly committed was a civil contempt arising from the purported disobedience of the order of interlocutory injunction restraining the Appellants from organizing, planning or carrying out amongst other acts, the burial of Chief L.A.S. Chukwu the mutual husband and father of the parties.

of contempt one Criminal and the other non-criminal.
According to him, generally speaking Criminal contempt consists of words or acts which obstruct or tend to obstruct or interfere with the administration of Justice whilst civil contempt is in fact contempt in procedure consisting of disobedience to Judgment, orders or other process of Court and involving a private injury. Obiekwe Aniweta V. The State FCA/E/47/78 delivered on 16th June, 1978; R v. Gray (1900) 2 Q.B. 36; Izuora V. The Queen (1953) AC 327 at 336; all were again cited in putting the pertinent question as to the appropriate procedure to be adopted in trying contempt of Court.
In the case under consideration (Adeniji – Adele v. Ogbe) (supra), the learned Judicial Icon in the application of the facts of the case which are almost similar with the present Appeal identified the contempt as a Civil one since it entailed the disobedience of a Judgment by Counsel and held thus:
“The Law applicable being Sheriffs and Civil Process Law CAP. 127, Laws of Lagos State, 1972 and Judgment (Enforcement) Rules being subsidiary Legislation made under the Sheriffs and Civil Process Law CAP 127

aforesaid now CAP, 407 Vol. 9 Laws of the Lagos State, 1994.”
See Page 665 Para. A of the Report.
Going by the above authorities and indeed Ikimi V. Omamuli (1995) 3 NWLR (Pt.383) 355 at 363 – 364 Paras; H – D and Uhunmwangho V. Okojie (1989) 5 NWLR (Pt.122) 471 at Page 482 – 486, although contempt proceedings by their nature are akin to criminal charges, they are still civil proceedings in which allegations of crime are made and the fact that the standard of proof beyond reasonable doubt applies, this does not ipso facto transpose same to a purely criminal proceedings more so where as in this case, the contempt is civil in nature and is regulated by the Sheriff and Civil Process Act/Law and the Judgment Enforcement Rules made there under.
In the light of the above, I am in total agreement with the learned Counsel for the Appellants that the appropriate Notice of Appeal in this instance is not such as contemplated either by Order 3 Rules 1 & 2 of the Court of Appeal Rules, 2002 or Order 6 Rules 1 & 2 of the 2007 Rules (as applicable when the Appeal was filed or supposed to be heard) which provisions are in pari materia with Order 6

Rules 1 & 2 of the Court of Appeal Rules, 2011.
At best an Appellant who felt aggrieved by the decision of the Court below in the circumstances of the present Appeal can come either under the aforesaid Rules or the Rules relating to Criminal Appeals as in Orders 4 of the 2002 Rules or 16 of the 2007 Rules or 17 of the 2011 Rules whichever is convenient more so as the learned Counsel for the Respondents who has in any case joined issues with the Appellant by filing their Respondents’ Brief, has not told us what prejudice they have suffered in respect of the Notice of Appeal brought pursuant to the provisions of Order 3 Rules 1 & 2 of the 2002 Rules.
I agree also with the learned Counsel for Appellants, that the Appellants were entitled to file a Joint Notice of Appeal since this is an Appeal resulting from purely Civil Proceeding or civil contempt and accordingly each of the Appellants need not file and sign their respective Notices of Appeal separately as was decided in Uwazurike v. A.G. Federation (Supra) which was purely a Criminal case fought in line with the Criminal Law and procedure.

As regards the multiplicity of Notices of

Appeal, the learned Counsel for the Appellants had made it explicitly clear that the Notice and Grounds of Appeal are at pages 84 – 87 of the Records (See page 3 of the Appellants’ Brief and page 11 thereof), where the learned Counsel stated further in Paragraph 2. C. 41 that: “The appeal is founded on six ground. Thus, although there are three different Notices of Appeal filed on the 5th August, 2003, by C. E. Udumaga Esq, 14th August, 2003 by A. S. Kolawole Esq and another by C. E. Udumaga, Esq on the 6th of August, 2003 (See Pages 84 – 87, 88 – 91 and 102 – 105 respectively), the learned Counsel for the Appellants had indicated in the Appellants’ Brief of Argument that the Notice of Appeal which they seek to rely on for the prosecution of the Appeal is that filed on the 5th day of August, 2003 with Six (6) Grounds as contained in pages 84 – 87 of the Records. Having sought the leave of Court to argue the above named Grounds of Appeal, the two other Notices and Grounds of Appeal are deemed abandoned and are accordingly struck out in line with the decisions in Adeleke V. O.S.H.A (No.2) (2006) 11 NWLR (Pt.990) 136 at 151 Paras. B – E, 153 Paras. A – B;

Ifekandu V. Uzoegbu (2008) 15 NWLR (Pt.1111) 508 at 518 Paras. A – B; S.B.N. V. C.B.N. (2009) 6 NWLR (Pt.1137) 237 at 267 Para -E and Akeredolu V. Akinremi [1986] 2 NWLR (Pt.25) 710 and Onwe V. The State [1975] 9 – 10 S.C.41.
Indeed, this Court following the Supreme Court decisions in Akeredolu V. Akinremi (supra); Harriman V. Harriman (1987) 3 NWLR (Pt.60) 224; Onwe V. The State (supra); Tukur V. Government of Gongola State (1988) 1 NWLR (Pt.68) 39 had endorsed the stance taken by the learned Counsel for the Appellants herein, in the case of Adeleke v. O.S.H.A.(No.2) supra at pages 151 Paras. B – E and 153 Paras, A- B that:
“It is not illegal to file many Notices of Appeal in the same matter. It has never been. Nothing prevents an Appellant from filing more than one notice ex abundant cautela. Where more than one Notice of Appeal is filed, the others may be superfluous but not invalid. An Appellant can validly withdraw one of the two Notices of Appeal and then proceed to argue his Appeal on the other remaining Notice of Appeal. The Court of Appeal Rules do not prohibit the filing of more than one Notice. Thus, an Appeal is not incompetent because it

is brought by more than one Notice of Appeal.”

Turning to the complaint that the Appellants’ Brief was filed before the Bundle of Papers that constitute the Records were allowed by the Court, there is no doubt that Order 6 Rule 2 of the Court of Appeal Rules, 2002 (then Order 17 Rule 2 of the Court of Appeal Rules, 2007) stipulated that the Appellant shall within sixty days of the receipt of the Record of Appeal from the Court below file in Court a written Brief, being a succinct statement of his argument in the case of the 2002 Rules; and in the case of the 2007 Rules Forty-five days was stipulated as the mandatory period within which an Appellant shall file his Brief of Argument.
As was rightly argued by the learned Counsel for the Appellants, inspite of the mandatoriness of the provision of the Rules on the period for the filing of Briefs of Argument and without prejudice to the land mark pronouncement by Sowemino, JSC in the case of Solanke V. Somefun (1974) 1 S.C. 141; that “Rules of Court are made to be followed, They regulate matters in Court and help parties to present their cases for purposes of a fair and quick trial. It is the strict

compliance with these rules of Court that make for quicker administration of justice” (see the cases of Kacha V. Lazid (2001) 17 NWLR (Pt.742) 431; Ibodo V. Enarofia (1980) 5-7 S.C. 42; Dr. Aina V. Mrs. Aina (1986) 2 NWLR (Pt.22) 316; Olusesi V. Olusesi (1986) 3 NWLR (Pt.31) 634; John v. Black (1988) 1 NWLR (Pt.72) 648 and Dambain v. Lele (2000) 11 NWLR (Pt.678); the Rules were and are still conscious of the uncertainty of time and events and the volatility of human memory such that exigencies may occur that could obstruct the timely compliance with the Rules for the doing of an act. Hence Order 7 Rule 2 of the 2002 Rules and indeed Order 19 of the 2007 Rules and even Order 20 of the 2011 Rules have variously in their miscellaneous provisions in Rules 2 and 3, given some leverage for departure from strict compliance with the Rules in appropriate circumstances and where the interests of Justice so dictate.
In the instant case, even if the Appellants filed their Brief of Argument before the compilation of the Records, they had applied pursuant to Order 7 Rule 2 of the 2002 Rules for a departure from the Rules and hearing and determination of the Appeal on

the Bundle of Documents already settled, compiled and transmitted along with their Application. For that purpose that Application which was dated the 21st day of September, 2004 and filed on the 23rd September, 2004 was duly granted on the 27th of April, 2005 by this Honourable Court and encapsulates the Record of Appeal upon which the Arguments of the parties are predicated.
In my humble view, by the doctrine of relating back, the Brief of Argument of the Appellants, by the grant of that Application had been regularized. However, on a careful perusal of the date of filing of the Appellants’ Brief ex-facie, that Brief was filed on the 8th day of June, 2005 but dated the 3rd day of June, 2005 which presupposes that the Appellants’ Brief of Argument was filed after the grant of the Application for Departure from the Rules by this Honourable Court.
This Court and indeed Nigerian Courts have since departed from the era of strict compliance with technical Rules and the doing of mechanical justice but are now more inclined to doing substantial justice particularly as in this case where the fundamental rights of a mother and her children are in jeopardy and

this Court rightly and we are also ready to bend the rules to do substantial justice to hear the Appeal on the merits.
Thus, the positions hitherto taken by the Supreme Court in cases like Solanke V. Somefun (Supra) Addisababa V. Adeyemi (1976) 12 S.C. 51, Ommumali v. The State (1979) 12 C.A. 27; Moses V. Ogunlabi (1975) 4 S.C. 81 and Ogunmola v. Igbo (1941) W.A.C.A. 137; amongst others on strict compliance with procedural Rules had since been jettisoned as far back as 1981 when the legendary Fatayi-Williams C.J.N. in his revolutionary pronouncement in the celebrated case of Surakatu v. Nigerian Housing Development Society Ltd & Anor (1981) 4 S.C. 26; and followed since then in Onia v. Onyia (1982) 8, 9, 10 C.A. 165; Udo v. The State (1981) 6 -7 S.C. 157 & 158 and Aina v. Aina (1997) 4 NWLR (Pt.185) 358; that in exceptional circumstances Appellants may be allowed by the Court to remedy non- compliance and do substantial justice by hearing the Appeal on the merits. Accordingly, decisions like Moses V. Oguntabi (Supra) and Addisaba V. Adeyemi; were over ruled for if they were allowed to stand, it would continue to fetter the discretion of this Court

to remedy any non-compliance in the interest of Justice.
Indeed Niki Tobi, JCA (as he then was) had stated characteristically, the rationale behind the departure from strict compliance with Rules of Court as in this case when he reasoned in the case of Orient Bank (Nig.) Plc. v. Bilante International Ltd. (1997) 8 N.W.L.R. (Pt.30) 37; that:
“This is significant because it is designed to take care of unintentional or willful non-compliance with Rules of Court. The Court will in such situation invoke its power under the Rules especially if it is in the interest of Justice to do so. One of such situation is when in the opinion of the Court, strict compliance with the Rules will merely result in either arid legalism or abstract technicality which materially blurs the substance of the Appeal before it. The Court in such a situation will be inclined to follow the substance of the Appeal rather than the shadow, which is the result of the technicalities of the Rules.”

Against this background, I am of the candid view that almost if not all the objections of the learned Counsel for the Respondents bordered on technicalities which this Court is not

ready to be bogged down with. Rather we shall do substantial justice and entertain this Appeal on the merits. On the whole the Preliminary Objection lacks merit and same is accordingly dismissed to pave way for the hearing of the Appeal.

DETERMINATION OF THE SUBSTANTIVE ISSUES IN THE APPEAL ARGUMENTS OF COUNSEL AND RESOLUTION OF SUBSTANTIVE ISSUES.
ISSUE NUMBER 1

WHETHER THE DECISIONS AND ORDERS OF THE TRIAL COURT IN THE COURT BELOW WHICH AFFECTED THE APPELLANTS RIGHTS TO FAIR HEARING AND PERSONAL LIBERTY ARE JUSTIFIED IN ALL THE CIRCUMSTANCES OF THE CASE?
AND
WHETHER OR NOT THE ORDERS SHOULD BE SUSTAINED?”

The learned Counsel for the Appellants had sought the leave of the Court to argue the two Issues together while urging the Court to resolve the Issues in favour of the Appellants. Arguing the two Issues together the learned Counsel pointed out the grounds in so urging to include the following:-
“1. That the alleged marriage upon which the Respondents’ claim was founded is manifestly void even on the 1st Respondents’ documents;
2. That the Respondents’ processes filed in Court disclosed that the service of the

processes of Court could not have been validly effected in that:
(a) the addresses of the Appellant’s in Enugu, United States of America and South Africa are inconsistent with their addresses for service set out in the Writ of Summons and supplied by Counsel through oral argument.
(b) The Application for substituted service was made orally without any legally admissible facts to justify it but was hurriedly granted without any scrutiny or caution;
(c) The Affidavits of Proof of Service did not disclose any time when the service by pasting was effected or how the house on which the pasting was done was identified to the Bailiff;
(d) The Affidavit of Proof of service never disclosed any part of the house where on the processes were pasted to show if and how it complied with the specific order of Court as couched;
(e) The conclusion of the trial Court that the service of process was duly effected is not justified;
(f) The hearing of the proceedings of 7/5/2003 did not afford the Appellants any opportunity of a fair hearing.
(g) Though the competence of the proceedings was challenged in the trial Court, the issue even in

the glaring face of the risk of violation of the Appellants’ fundamental rights to fair hearing and personal liberty which invariably resulted; was not considered.”

Taking these headings one by one, the learned Counsel for the Appellants on the Issue of Void Marriage, argued on the authorities of Onwudinjoh v. Onwudinjoh (1957-58) 11 ERNLR 1; Craig V. Craig (1964) LLR 96; Section 3 of the Marriage Act ; Nwankpele V. Nwankpele (1973) 3 U.I.L.R. 8, Abisogun V. Abisogun (1963) 1 ALL NLR 237 and Osanwoyin V. Osanwoyin [1972] 10 S.C.1; that Chief L.A.S. Chukwu had married the 1st Appellant under the Act as can be gleaned from Page 19 Paragraph 7 and Page 20 paragraph 7 of the Records.

According to the learned Counsel, in the face of these averments, the purported Certificate of Statutory Marriage at pages 12 and 35 of the Records is fraudulent as the purported Marriage is founded on an illegal root and the Respondents are therefore caught by the maxim”ex turpi causa non oritur actio” for any subsequent marriage between any person and a spouse of a subsisting marriage under the Act is Void ab initio. Sections 33 and 35 of the Marriage Act refer.

The learned Counsel for the Appellant still on this point, noted that the learned trial Judge relied on this void marriage as the basis of his finding that the Respondent established a legal right which deserved to be protected (page 120 of the Records refers where the Trial Court posed the question of the existence of any legal right which the Respondents sought to protect (as Plaintiffs); which question was answered at page 121 of the Records where in the Court placed reliance on Paragraphs 2, 4 and 5 of the Affidavit at pages 29 and 30 of the Records.

On the question of Non Proof of Service we were referred to Paragraphs 9 (page 30); Paragraph 15 (31); and page 41 Paragraph (5) as well as page 42 Paragraph 7 of the Records where the current Addresses were disclosed by the Respondents’ own Affidavits, in submitting that there was no affidavit evidence on Record which changed those addresses of the Appellants, which were the glaring facts placed for the Court on the 6th of May, 2003. Harping on the fundamental nature of service of process to the exercise of judicial powers, and placing reliance on the cases of Ngige V. Achukwu (2005) 2 NWLR (Pt 909) 123

at 141 – 142 Paras. G-A, Sken Consult Nig. Ltd. V. Ukey [1981] 1 S. C. 6 and Abel Woluchem V. Inko Taria (1974) 3 SC.153 at 154, 155 and 170 – 172, he submitted that the need for caution existed the more when the orders which were to be sought from the Court had the potentiality of affecting the liberty of the Appellants.

It was further submitted that by the provisions of Order 12 Rule 5 of the Imo State High Court (Civil Procedure) Rules, 1988, an order for substituted service would not be made unless the Court is satisfied that personal service cannot easily be effected, as the Rules did not empower the Court to order substituted service suo motu, or do so without an objective existence of a good cause so to do.

He also submitted that the order ought not be made on a casual allegation by Counsel on the stride without more that an unidentified Bailiff was nearly lynched by persons who were never suggested, on an undisclosed date and at an undisclosed place, as such a sweeping statement was the only basis for which the Respondents sought orally for the order of the Court which the Court instantly made.

Turning to the mode of service of the

processes as ordered by the Court below, by pasting “on the door or wall of the House or compound of their last known place of abode…, he argued that such mode of service is unknown to Order 12 Rule 5 of the Rules afore cited and referring to the content of the Affidavit of Service at page 51 of the Records which reads… “By pasting at Umudike Eziama, Isiala Mbano, it was again submitted that it does not disclose any place of the pasting which could accord with the door or wall of house or compound and accordingly, the Court below did not state the fact correctly when he recorded as he did at page 118 of the Records more so where the Affidavit of service did not disclose any time of the day on 6/5/2003 when the processes were pasted – the very same day the Order was made.

Still on mode of service of processes, the learned Counsel contended that every Affidavit of Proof of Service on Record suffers from the same defects on non- due compliance with the peculiar and specified mode of service ordered by the Court below. For this contention, he referred us to Order 8 Rule 17 of the Imo State High Court (Civil Procedure Rules), 1988 which

were reproduced at page 119 of the Records by the Court and which according to the learned Counsel, the object of those provisions of the Rules was to ensure that due opportunity of a fair hearing is afforded the affected parties “at least two clear days between the service of a Notice of Motion and the day named in the Notice for hearing the motion”.

Arguing specifically on the Issue of Denial of Fair Hearing, he relied on the case of Ariori v. Elemo [1983] 1 S.C. 13, and submitted that the above provision of the Rules which guarantee fair hearing, touch on public policy and as such cannot be lightly waived and therefore the discretion inherent in the Court to give “special leave to the contrary” must be exercised before the Notice of Motion is served and not after service. This, he maintained, is because the party affected is entitled to know if such a special leave has been granted to the contrary so as to warn him to act or respond expeditiously otherwise he would be right to assume that he has about two clear days within which to prepare a response and if while he is yet exercising that presumed right the Court acts behind to his

detriment, an opportunity to fair hearing would have been denied him.

In the light of the above, the learned Counsel for the Appellants took the view that the order of substituted service was made on 6/5/2003 and the proceedings resumed on 7/3/2003 and it was on that 7/5/2003 that the trial Court invoked Order 8 Rule 17 (page 119 of the Records refers). He contended that the special leave envisaged by Order 8 Rule 17 should never have been granted to deny the Appellants the opportunity of fair hearing and that this forms the basis of the complaint of the Respondent at page 126 of the Records and in the light of all the foregoing, the entire proceedings of the trial Court on 7/5/2003 are void having constituted a gross violation of the Appellants’ fundamental rights to fair hearing. For the above submissions, reliance was placed on the cases of Okafor v. A.G. Anambra State [1991] 6 NWLR (Pt.200) 659 at 678 Paras. F – G and Enigwe V. Akaigwe [1992] 2 NWLR (Pt.225) 505.

Still on this vexed question of denial of fair hearing, the learned Counsel for the Appellants posited that the scathing remarks of the Court below at page 122 of the Records about the

absence of the Appellants from Court was not only unjustified but showed the trial Court as having already formed an adverse opinion against the Appellants at that preliminary stage of the case. Furthermore, the conclusion of the Court at page 5 that the Respondents established the existence of a valid marriage and therefore a legal right and the order made at page 122 of the Records prejudged the substantive reliefs in the writ of Summons at page 2 of the Records.

Turning to the Notice of Preliminary Objection before the Trial Court, it was the learned Counsel to the Appellants’ submission that those Applications afforded the trial Court the veritable opportunity to bring the coach of justice back on track but the Court rather than do so, was led by the learned Counsel for the Respondents to persist in the error. According to the learned Counsel for the Appellants, the entire proceedings of 25/6/2003 paid more attention to contempt proceedings against the Appellants than the issue of competence of the proceedings. Page 124 – 128 of the Records refer where the order of Bench warrant against the Appellants was concluded; and from when the Appellants became

more or less prisoners as the Trial Court pursued the Order of Bench, warrant vigorously and meticulously. Pages 128- 129 of the Records (the proceedings of 16/7/2003) when there was no appearance for the Respondents (Plaintiffs) which vigour subsisted until the final conviction of the Appellants.

Finally, the learned Counsel for the Appellants urged us to hold that the decision of the Trial Court was neither justifiable nor sustainable in all the circumstances of the case and therefore insisted that a judicial proceeding which violates the fundamental rights of the affected parties is void to the extent of that violation on the authorities of Okafor v. A.G. Anambra State (supra); Idakwo v. Ejiga (2002) 13 NWLR (Pt 783) 756; Nwankwu V. Anieto (2002) 2 NWLR (Pt.752) 729 and Adebayo V. Okonkwo [2002] 8 NWLR (Pt.768) 1. We were therefore in conclusion urged to set aside same as the proceedings affected the Liberties of the Appellants and spell miscarriage of justice.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENTS ON THE SOLE ISSUE
FORMULATED FOR DETERMINATION: WHETHER FROM THE ENTIRE CIRCUMSTANCES AND FACTS, THE COURT BELOW WAS RIGHT IN

MAINTAINING THE INTEGRITY OF THE COURT BY CONVICTING AND SENTENCING THE APPELLANTS FOR CONTEMPT?”

Reacting to the arguments of the learned Counsel for the Appellants Akponye Esq, the learned Counsel for the Respondents, first of all pointed out that the Appellants tried to confuse the true position by relying heavily on an Affidavit in another action HOW/288/2001 which was two years earlier and not the material point before the Court. According to the learned Counsel the validity of marriage between the 1st Respondent and her late husband was never in contention either in HOW/288/2001 or in the present action HOW/20/2003 and that the primary essence of exhibiting the motion in the earlier suit was to show prima facie that the deceased husband accepted the 1st Respondent as his wife and he was the father of her two sons whose wife sued as next of friends. Furthermore, there is no dispute that the children of the 1st Respondent are the legitimate children of the deceased. We were accordingly urged to discountenance the arguments of the Appellants on the question of void marriage which is extraneous to the Grounds of Appeal.

Citing Okere v. Fashawe

(2006) 133 LRCN 163; Magit V. Uni. Agric, Markurdi (2006) 133 LRCN 4683 and Onifade V. Olayiwola (1990) 7 NWLR (Pt.161) 130; he submitted that it is trite that the Court can not consider an issue that does not flow from the Grounds of Appeal before the Court.

On the contention by the learned Counsel for the Appellants that the address for service for a process is that contained in pages 30, 31, 41 and 42 of the Records which are mere averments in a previous suit, the learned Counsel for the Respondents contended that the right Address is as contained at page 2A of the Records which is “Umudike Eziama Osuama, Eziaama Isiala Mbano L.G.A; Imo State within the jurisdiction of the Honourable Court of trial. He maintained that the Appellants never denied that they are indigenes of the said Address throughout the trial.

In answer to the Appellants’ contention on the mode of service, the learned Counsel for the Respondents countered that the Court invoked the provisions of Order 12 Rules 5 (d) of the Imo State High Court Civil Procedure, Rules, 1988 which provisions he reproduced when it was informed of the attempted lynching of the Bailiff of the

Court. The provisions, he further argued, are clear and unambiguous as to the contemptuous acts of the Appellants hence the Court elected to order for substituted service by pasting on the wall of the House or Compound of their last known place of abode which meets with the provisions of the above Rules.

The learned Counsel for the Respondents maintained that the attack on the Bailiff was absolutely disrespectful to the process of Court and due administration of justice yet the Court decided to mute same by simply ordering for substituted service for which the Appellants should be grateful. He further referred to Paragraph 30 of the Respondents’ Affidavit in support of the Motion Ex-parte where they deposed to the fact that the Appellants were likely to evade service until the burial was carried out (page 10 of the Records refers) and submitted that the Appellants became aware of the pending action at the first attempt of their being served but willfully and arrogantly evaded personal service by attacking the Bailiff.

He explained that subsequent service by the Chief Bailiff of the Court below and shown by affidavit deposed to and filed as shown at

page 51 of the Records sufficed as prima facie evidence of service and that any challenge thereto ought to be by another affidavit specifically challenging the such service and directed to the Bailiff who is an officer of Court but which action the Appellants never took to Counter the Bailiff’s Affidavit of service. This is more so according to the learned Counsel for the Respondents, the said Bailiff had deposed to the fact that: “before the day I served the Summons, Motion on Notice and Order of Court, I (sic) knows the Defendants house” which shows that the processes were duly served.

On the Appellants’ complaint of denial of fair hearing, the learned Counsel for the Respondents submitted that Order 8 Rule 17 allows the Court with the discretion to grant special leave to abridge the two days provision. He explained that the special leave was sought by the Respondents and same granted by the Court and that the Motion on Notice was filed on 2/5/2003 but listed for hearing for the 7th of May, 2003. The Motion was said to have been filed along with the Writ of Summons which first attempt at service of the Appellants was resisted and by the time the Court

below made the Order for substituted service which was eventually carried out on the 6th of May, 2003, the Motion on Notice was already fixed for hearing as the 2nd a May, 2003 for the 7th of May, 2003 but was not fixed on the 6th of May, 2003.

He further explained that the Court could have still invoked Order 8 Rule 7 (2) of the High Court Rules to hear the Application and make an Ex-parte Order but decided rather to give the Appellants fair hearing yet the Appellants are complaining. Placing reliance on the dictum of Nnaemeka – Agu JSC; in the case of Okoye. V. Nigerian Construction & Furnituse Co. Ltd. [1991] 6 NWLR (Pt.199) 501 at 540; he submitted that it is trite that where a party due to indolence or lack of diligence watches proceedings without taking part, he cannot be heard to complain of lack of fair hearing. The learned Counsel submitted still on this issue of fair hearing, that the opportunity was given to the Appellants and they failed to take it by their refusal to come to Court on the hearing date only to complain later.

According to the learned Counsel, the main contention of the Appellants is not that they were not served but

the mode of service which they have waived by not that complaining timeously more especially as the appearance of Counsel for the Appellants in Court clearly concedes that they were duly served with the processes of Court but they elected to treat the Court’s order with disdain until the service of the committal processes.

It was the learned Counsel’s submission that the Court took into consideration the claim in the Writ of Summons where part of the claims is to allow the participation of the Respondents in the Custom and tradition of burying her deceased husband and father of her children which was slated for the 9th and 10th of May, 2003 and that the Court can make any order protecting the res (the subject-matter) of an action. Furthermore he maintained on the authority of Registered Trustees, Apostolic Church V. Olowoleni F9901 4 NWLR (Pt.158) 514 at 537 per Nnaemeka-Agu, JSC, that it is also the law that once a matter is in Court, parties are supposed to respect the pendency of the matters otherwise anything they do will be to their detriment.

The learned Counsel also relied on the authority of DOMO v. OGIRI [1998] 3 NWLR (Pt.541) 246 at 252 Per

Oguntade, JCA (as he then was), to submit that even when the Court did not make any restraining orders but a suit is brought with such claims, the hands of the Defendants are effectually tied pending a hearing and determination even though no injunction Order was issued by the Court he insisted that the refusal of the Respondents from participation in the customary burial rites of their husband and father was despicable and condemnable but that the position was even more worrisome with the blatant refusal of the Appellants to heed to the Orders of the Court and accordingly the Court below was right to have exercised its inherent powers to punish them for contempt of Court.

Referring us again to Odogwu V. Odogwu [1992] 2 NWLR (Pt.225) 539 at 556-557 Per Karibi-Whyte, JSC, the learned Counsel for the Respondents contended that the entire proceedings were replete with despicable and insulting conducts of the Appellants to the integrity of the Court adding that the Appellants were given ample opportunity to defend themselves of the allegation of contempt of Court which they committed not only by ignoring the processes of the Court but by rubbing the integrity

of the Court on the mud by treating the orders of the Court with levity.

He recalled what transpired when the Committal Application came up on the 28th of May, 2003 following the service of Forms 48 and 49 despite the appearance of A. N. Onyeka for the Appellants, the patience displayed by the Court below in waiting for the appearance of the Appellants to take their defence (page 23 of the Records and the proceedings of that day refer), the proceedings of 11/6/2003, the conflicting letters of the two Counsel for the Appellants, the adjournments of 25/6/2003, 16/7/03, 29/7/2003 when the 1st Appellant managed to appear and took flight from open Court and finally on the 31/7/2003 whereas at the said 28th of May, 2003 and 11/6/2003, there was no Counter-Affidavit to the Motion to set aside the Order of Court or challenging the jurisdiction of the Court.

It was therefore submitted that the refusal of the Appellants to file a Counter-Affidavit to the Application for Committal after over five adjournments confirmed their Respondents’ Affidavit in support of the Motion since they were not denied.

On the contention of the Appellants that they had filed a

Motion to set aside the Orders of the Court for being a nullity, the learned Counsel for the Respondents submitted again on the authority of Rossek & Ors. v. ACB (1993) 5 NWLR (Pt 312) 382 at 434 – 435 Paras. H – B. S.C. that the law is that no matter how irregular an Order of Court is, it must be obeyed for it is not the Law that a party should disobey the Order and then decide to bring an Application to set same aside. On the contention of the Appellants that because of the pending Application challenging the Jurisdiction of the Court, the Lower Court ought to have taken the Application on the jurisdiction first, the Respondents’ Learned Counsel argued per contra that the Application on jurisdiction could not have been taken first when a contempt Application was pending before the Court. For this submission he placed reliance on the case of Ebhodaghe v. Okoye (2005) 123 LRCN 191 at 209 Per Pats- Acholonu JSC to submit that the orders of the Court in all respects to this matter were in order to protect the dignity of the Court which the entire Society is looking up to.

In conclusion we were urged to hold that the Appeal is generally incompetent and

ought to be dismissed for being an abuse of process based on the Preliminary objection and in the main is unmeritorious and that the Appellants be compelled to serve their terms of imprisonment.

RESOLUTION OF ISSUES:
I have carefully considered the submissions of the learned Counsel on both sides of the divide as have been copiously set out above and am of the Candid view that the two Issues formulated by the learned Counsel for the Appellants are more germane to the determination of the Appeal and I so adopt them accordingly as argued together.

I shall also follow the pattern adopted by the learned Counsel under the various heads as highlighted and argued by both learned Counsel for the Appellants and Respondents.

Taking first the issue of void marriage, it would be recalled that the 1st Respondent at page 6 of the Record of Appeal in the Affidavit in support of the motion for interim injunction had deposed in Paragraph 2 thereof that:-
“2. I am the legitimate wife of Late Chief Lawrence Amaechi Sunday Chukwu native of Umudike Eziama Osuama in Isiala Mbano Local Government Area within jurisdiction.”

According to her customary

bride price and other marriage rites were performed by her late husband under the custom of her maiden home Ezeogba Emekuku Owerri North Local Government in 1989 and the said Customary marriage was later registered at Owerri Local Government. The document evidencing the registration of marriage was annexed and marked Exhibit ‘A’ (See paragraph 3 thereof at page 6 of the Records).

At page 7 of the Records, the 1st Respondent also purported in Paragraph 4 of the same Affidavit in support thus:- “That subsequently my husband performed a statutory marriage with me, the relevant certificate is herewith marked Exhibit “B”

The Marriage Certificate is at page 12 of the Record of Appeal as well as page 35 thereof and the serial Number is 61/99 while the date of the purported marriage is stated as 7/9/99. In the said document, LAS Chukwu was described as Full BACHELOR?‘. However, in an earlier suit filed by herself and children against her said husband in 2001 (Suit No.How/288/2001), whereof she brought a motion for interlocutory injunction restraining her said husband from giving out, selling, donating, selling, assigning or

whatever transferring interest in title or possession of all that property known as and called No. 9 Mbari Street (Plot 54) Ikenegbu Layout Owerri, Imo State to the 2nd Defendant Obinwanne Hope Chukwu, his siblings or any other third part pending the determination of the action; the said 1st Respondent had averred in Paragraphs 3, 4 and 5 and 6 of the Affidavit in support of that Motion thus:-
“3. That the 1st Defendant is my husband and father of my Co-Plaintiffs. The 2nd Defendant is the first son of the 1st Defendant by the first wife, Mrs. Ethel Chukwu.
“4. That the marriages between the 1st Defendant and his two wives were all contracted under customary rites. The 1st wife has 8 children (including the 2nd Defendant) while I have 4 children for him.
“5. That based on the 1st Defendant’s Polygamous family arrangement the 1st wife was given our husband’s property of 12 flats building and Boys Quarters
“6. The children of the 1st wife are all grown up with three of them in the United States of America and another in South Africa where as the children of the 1st Plaintiff are infants, the eldest barely 12 years Old” See page

18 and 19 of the Records.

To debunk the claim of the 1st Respondent that she was married statutorily nay, the legitimacy of her purported marriage, Chief Lawrence Amaechi Sunday Chukwu (the 1st Plaintiff’s purported husband), at page 20 of the Records deposed to a Counter-Affidavit to the 1st Respondent’s Affidavit in support and stated specifically in Paragraph 7 thereof thus:
“(7) That Paragraph 4 of the Affidavit in supporting Motion is false and I stated that the marriage between me and my 1st wife was celebrated in the Church, in accordance with the provisions of the Law.”

From the foregoing averments in the Affidavits which were exhibited by the 1st Respondent, it is crystal clear as rightly submitted by the learned Counsel for the Appellants that Chief LAS Chukwu was already married to the 1st Appellant statutorily before Exhibit “B” was issued and the so called marriage contracted with the 1st Respondent.
In the same vein the 1st Respondent falsely put forward the said LAS Chukwu as a Bachelor in 1999 when the said Chief Chukwu was already married to Ethel Chukwu (the 1st Appellant) whom the 1st Respondent rightly described as the

first wife. Accordingly, there was no LAS Chukwu who was a Bachelor as at 7th September, 1999 when the so-called Marriage under the Act was contracted with the 1st Respondent.
Thus, in line with Sections 34, 35, and indeed 36 of the Marriage Act and the authorities of Onwudinjoh v. Onwudinjoh [957-58] 11 ERNLR 1, Craig v. Craig (1964) LLR 96, Nwankpele v. Nwankpele [1973] 3 U. I. L. R & Abisogun v. Abisogun [1972] 10 S.C. 1 and the maxim Ex turpi causa non Oritur actio” the purported marriage of the 1st Respondent with the late LAS Chukwu having been contracted after the earlier statutory or Church marriage with the 1st Appellant, was ab initio null and void as the so called certificate marked Exhibit B must have been fraudulently acquired.

Unfortunately, it was upon this null and void marriage that the Lower Court predicated its reason that the plaintiffs are acknowledged wife and children of the Late L.A.S. Chukwu and that if they were not allowed to participate in the funeral rites of their husband and father, they would suffer irreparable damage which no amount of monetary compensation can assuage. If the 1st Respondent’s marriage was

illegitimate she would not be entitled to inherit the estate of the deceased LAS Chukwu although it is conceded that the acknowledged Biological Children are entitled to the estate of their deceased father.

With the greatest respect, the 1st Respondent was a mere concubine who in her desperation to amass the considerable wealth of LAS Chukwu even before his death, like the prodigal son, had instituted suit No. How/288/2001 calling for the deceased not to share his property while alive and at the demise of the said LAS Chukwu, set the machinery of the Law in motion and in concert with her Lawyers and officers of Court goaded the Court into making in terrorem and most ridiculous orders which eventually led to the conviction of the Appellants and their sentence to imprisonment in absentia.

Contrary to the submission of the learned Counsel for the Respondents that the validity of marriage was not in contention, the validity of the marriage was the basis of the Court’s Ruling that the 1st Respondent had the legal right to inherit her husband’s estate hence the locus standi to institute the action. Although the 1st Respondent had the right to sue as next

of friend for the children of the relationship, the Court ought to have been circumspect in granting the interlocutory injunction which would stop the corpse of LAS Chukwu from being buried to the ridiculous extent of serving such an order on the Mortuary where the corpse was deposited after burial arrangements may have been concluded by the Deceased family.

The Judge should have also asked himself certain pertinent questions as to the reasons why the 1st Plaintiff/Respondent and her children should be barred from participating in her so called husband’s burial if her hands were clean. I refuse to discountenance the submissions of the Appellants on the question of void marriage as this goes to the jurisdictional issue of locus standi and same is not extraneous to the Grounds of Appeal which in any case challenged the jurisdiction of the Court but the Court below refused to hear the Appellants and proceeded to convict and Sentenced them for contempt of Court.

There is no doubt as was brilliantly submitted by the learned Counsel for the Respondents and on the authorities of Okere v. Fashawe [2006] 133 LRCN 163 at 179 Paras ZEE Per Musdahper, JSC

(as he then was) that:
“Issues for determination must fall within the Scope or ambit of the grounds of Appeal any issue for determination falling outside the ambit or scope of the grounds of appeal is incompetent See, Adeousola v. Akinde S. C. (120) LRCN 4683; (2004) Vol. 8 M.J.S.C. 33; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 Okoye v. Nigerian Construction & Furniture Co. Ltd. S.C. [1991] 5 LRCN 1547 (1991) 6 NWLR (Pt.199) 501.”

However, as held earlier on and to put the Records Straight, Ground Three of the Notice of Appeal avers that the Trial Court erred in law when it ignored the Application challenging the competence of the action and jurisdiction of the Court to entertain the matter and went on to hear the Application seeking to commit the Appellants to prison. See the particulars of error of that Ground.

PROOF OF SERVICE:
On this head, in which the Appellants’ learned Counsel contended that the Appellants were not properly served with the processes of the Court whereas the learned Counsel for the Respondents contended otherwise, there is ample evidence that the 1st Respondent had deposed in the Affidavit in support of the

motion for interlocutory injunction that based on her late husband’s domestic arrangement the 1st Defendant and her children were given possession and residence of the property of 12 flats building and??Boy-Quarters at No 9. Odudukoko Garki, Awkunanaw, Enugu State where they have been in undisturbed possession and residence with her children.

This means that at all times relevant to the case now on Appeal, the Appellants’ residence in Nigeria was No.9 Odudukoko, Garki Aukunanaw, Enugu, Enugu State ordinarily outside the Jurisdiction of the Imo State High Court of Nigeria. Again at Page 41 of the Records, Paragraph 5 of the Affidavit in support of the interlocutory injunction in respect of Suit No. HOW/288/2001 the same address as above was given as the residence of the 1st Appellant and her eight children. Apart from the averment in Paragraph 7 at page 42 of the Records that the Children of the 1st Appellants were all grown up with three of them in the United States of America and another in South Africa, curiously, in the Writ of Summons and Motion on Notice, the Addresses of the Appellants for service were given as C/o Umudike Eziama Osuama Eziama Isiala

Mbano L.G.A. Notwithstanding that they were indigenes of the said Address, the Respondents themselves did not give any reason why they suddenly changed the Address for service of the Appellants when they had clearly stated the Appellants’ Residential Address in their Affidavits as earlier highlighted. As was rightly argued by the learned Counsel for the Appellants, there was no affidavit evidence to the effect that the Appellants had changed their Residence as supplied on oath except to spring a surprise on the Appellants and stab them on the back as done by the Court.

On the question of substituted service of the Appellants with the processes, the learned Counsel for the Respondents and indeed the Appellants have cited the provisions of Order 12 Rule 5 (d) of the Imo State High Court (Civil procedure) Rules, 1988 which deals with this mode of service of processes of Court and states thus:
“5. Where it appears to the Court (either after or without an attempt at personal service) that for any reason, personal service cannot be conveniently effected,
the Court may order that service be effected either —
(a) by delivery of the document

to some adult inmate at the usual or last known place of abode or business of the person to be served, or
(b) by delivery thereof to some person——————————
(c) ————————————————————————or
By notice put up at the principal Court house of or some other place of public resort in, the Judicial Division wherein the proceeding in respect of which the service is made is instituted, or at the usual or last known place of abode’ or business of the person to be served,”

Even with the above provisions, particularly Paragraph (d) of Rule 5 of the Imo State High Court (Civil procedure) Rules, 1988, by the depositions of the 1st Respondent in the portions of the Affidavit quoted above, the last known Address and abode of the Appellants was No. 9 Odudukoko, Garki, Aukunanaw, Enugu State outside the jurisdiction of the Imo State High Court and there is no evidence that the processes were posted at the said Address or that the Bailiff attempted to serve them there at but they evaded service so as to warrant the order of substituted service.

There was no

formal application on Oath apart from the Ipse dixit of the learned Counsel for the Respondents that the Appellants attempted to lynch the Bailiff, to warrant the grant of the Order for substituted service. See page 117 of the Records where C. C. Ulu Esq; announced to the Court thus:-
The Bailiff of this Court told me and I verily believe him that he made all possible efforts to serve the motion on Notice and was nearly lynched. He failed to serve:

Without much ado and not asking the Bailiff to provide this information by way of Affidavit, the Court simply and eagerly bought the story of the learned Counsel for the Respondents by peremptorily asking the learned Counsel what he (the learned Trial Judge) was to do. Of course, in a manner smacking of a grand conspiracy between Counsel and the learned Trial Judge, the Learned Counsel orally applied that all the processes of the Court be served on the Defendants/Appellants by pasting on the wall or door of the House or compound of their last known Address i.e. Umudike Eziama Osuama in Eziama, Isiala Mbano. Without any hesitation the Court without caring to resolve the conflict in the

Addresses given on Oath and that given by the Counsel, granted the Oral prayer.

As was rightly submitted by the learned Counsel for the Appellants, there was no attempt by the learned Trial Judge to peruse the Records or call on the Bailiff to substantiate the allegation of the learned Counsel for the Respondents that there was an attempt by the Appellants to lynch him. A careful perusal of the Affidavits of Service at pages 51; 63, 73 and 76 would reveal that the first was simply pasted at Umudike Eziama Isiala, Mbano at an unnamed time in the Defendant’s house. As for the second one, the time of service was also not stated but it was recorded that the processes were served on the Defendants personally by pasting at the same Umudike Eziama Isiala – Mbano in the Defendants house while the 3rd one averred that four copies of motion on Notice were served by pasting them on the door gate of their Compound with no fixed Address at 11.25a.m.

None of these Affidavits averred that any of the Bailiffs was attacked by anybody not to talk of the Defendants/Appellants or any of their Agents. I am of the candid view that those Affidavits of Service were

concocted and there is no evidence that there was a first attempt at service of the Appellants with the processes of Court and accordingly, the question of Appellants becoming aware of the action but decided to willfully and arrogantly evade service by attacking the Bailiffs, did not arise.

Those Affidavits whether filed by the Chief Bailiff of the Court or not, did not suffice as same were concocted. If the Bailiff deposed to the fact that before the date of service he knew the Defendants’ House, how, when and under what circumstance did he know the Defendants/Appellants’ house when the 1st Respondent had on Oath deposed to the fact that all the Appellants resided outside the Jurisdiction of the Court?

I agree that the learned Counsel for the Respondents (if he did not connive with the Bailiffs to depose to spurious Affidavits) played on the misery of the Appellants by evoking the sentiments of the Court which allowed itself to be carried away to unleash injustice on the Appellants.

To demonstrate the injustice meted to the Appellants, the Order made on 6/5/2003 does not show when it was drawn up, whereas rightly observed by the learned Counsel

for the Appellants, an Affidavit of service was already filed. I agree completely with the learned Counsel for the Appellants that service of process is most fundamental to the exercise of judicial powers of a Court. In Ngige v. Achukwu [2005] 2 NWLR (Pt.909) 123 at 141 – 142, this Court held on the authorities of Habib Bank Ltd. v. Opomulero [2000] 15 NWLR (Pt.690) 375. Ajidaun v. Ajidaun (2000) 4 NWLR (Pt.654) 605; IBWA Ltd. v. Paex Int’l Co.(Nig) Ltd. Co. (Nig) Ltd. (2001) 7 NWLR (Pt.663) 105; that:
“No Court has jurisdiction to entertain any suit in which the processes are not served or properly served on the parties, as in the instant case; an Order made by a Court without jurisdiction is a nullity. See also Skenconsult Nig Ltd v. Ukey [1981] 1 S.C. 6.

The learned Counsel for the Appellants also cited Abel Woluchem v. Inko Tariah [1974] 3 S.C. 153 at 155, 170 and 172; where the Supreme Court admonished Courts to exercise caution particularly where the orders sought by a party have the effect of potentially affecting the liberty of the Appellants. See Akpan v. Akpan (1996) 7 NWLR (Pt.462) 620 at 626 Per Tobi, JCA (as he then was).

On the whole

I am in total agreement with the submission of the learned Counsel for the Appellants that the provisions of Order 12 Rule 5 of the Imo State High Court (Civil procedure) Rules, 1988 are not meant to be invoked unless the Court is satisfied that personal service of process cannot be conveniently effected. Like all judicial discretion, the Court below was expected to exercise the discretion to order for substituted service judiciously and judicially and not based on sentiments or whims and caprices of a learned Counsel who was bent on exacting punishment on Appellants in a purely domestic affair of the parties’ family rather than explore amicable settlement between them.

I am therefore in agreement with the learned Counsel for the Appellants once more that the Affidavits of Service suffer from the same defects of noncompliance with the specific mode of service ordered by the Court and accordingly there were no proofs of Service so as to warrant the Court to proceed against the Appellants in contempt of Court.

What was more, the Court below once more upon the promptings of the learned Counsel for the Respondents, that there was a purported urgency of

the matter, allowed the learned Counsel for the Respondents to move the motion for interlocutory injunction having invoked the provision of Order 8 Rule 17 of the High Court (Civil Procedure) Rules, 1988 which states that:
“Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of Notice of Motion and the day named in the Notice for hearing the motion.”

DENIAL OF FAIR HEARING:
Again, even though the above provision grants the Court discretion to abridge time (2 days provision) as rightly contended by the learned Counsel for the Respondents, the provision is also meant to afford an affected party or parties the opportunity of fair hearing. A discretion exercised in this case upon the ipse dixit of Counsel of the purported lynching of the Court Bailiff which allegation was neither substantiated by the Bailiff nor investigated or confirmed by the Court, cannot be said to be judicious but clearly occasioned the Appellants miscarriage of Justice and breach of their rights to fair hearing as guaranteed them by the Constitution and the Rules of Court.

With the greatest respect to the

Respondents’ learned Counsel, even though in Okoye v. Nigerian Const & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 540 Per Nnaemeka – Agu JSC; had held that:
“I must also bear in mind the fact that the duty of a Court under Section 33(1) now 36(1) of the 1999 Constitution) is to give the person whose civil rights or obligation is to be determined the opportunity of fair hearing. If he knew that the proceedings were going on and did not apply to be heard or the opportunity was made available to him and he failed or neglected to take it, he cannot now properly complain of denial of fair hearing, If he was aware that such proceeding was going on, he could not properly fold his hands and fail to take steps to avail himself,”
the opportunity was not afforded the Appellants so as to defend themselves.

Indeed when they became aware of the pendency of the proceedings and filed Applications by way of Preliminary Objection and a motion challenging the jurisdiction of the Court to make the null and void orders and substituted service of interlocutory injunction which was allegedly violated, the Court refused and/or neglected to entertain those

Objection and motion but was more interested in citing the Appellants for contempt and sentencing them to terms of imprisonment.

There is no doubt that the Supreme Court per Nnaemeka- Agu, JSC had also decided in the Registered Trustees, Apostolic Church v. Olowoleni (1990) 4 NWLR (Pt.158) 514 at 537; that:-
“Once parties have turned their dispute over to the Courts for determination, the right to resort to self help ends. So, it is not permissible for one of the parties to take any step during the pendency of the Suit which may foist upon the Court a situation of complete helplessness, or which may give the impression that the Court is being used as a mere subterfuge.….;” but this dictum of the learned Justice of the Apex Court can only be applicable where there was due process and the Appellants unlike in this case were aware of the pendency of this Suit at the earliest opportunity but decided to flout the order of the Court below.

From the totality of the facts of this case, the Appellants were not served as at when due but the Respondents’ Counsel Cajoled the Court which allowed itself to be used to issue the ridiculous order of

stopping the burial of a man which had already been fixed as if after the burial of the deceased, all the landed property of Chief LAS Chukwu would have been dissipated immediately.

the entire Application. The Court further held at pages 391 – 392 of the Report that:-
” —— the notice of motion and affidavit and grounds for committal for contempt committed ex -facie curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of case demands it, which is not the case here as there was no application for substituted service of the processes on the Clerk of the alleged contemnors would not Constitute due process under the Rules of Court and so the condition precedent to initiation of the proceedings and exercise of jurisdiction would not have been met and the result is fatal to the proceedings which are thereby rendered null and void See also Aina v. Jinadu [1992] 4 NWLR (Pt.233) 90; Ogaji v. Igonikon – Digbani [2010] 10 NWLR (Pt.1202) 298 at 306; and Uhunwangbo v. Okojie (1989) 5 NWLR (Pt.122) 471 at 487.
Again, to make matters worse, the contempt allegedly committed was solely a disobedience of the order of interlocutory injunction made by the Court in which case the only mode of commencing the proceedings is as provided under Section 72 of

the Sheriffs and Civil Process Act/Law and Order 9, Rule 13 of the Judgment (Enforcement) Rules, made pursuant to the Act. Accordingly, since contempt outside the precincts of the Court is quasi-Criminal in nature, the Appellants ought not have been punished brevi manu but every procedural step (the vega modus prosequiandi’ must “ex necessitate) be followed strictly and strictly complied with. Accordingly, the Appellants ought to have been arrested, charged before the Court, and full trial conducted and the offence proved beyond reasonable doubt and if found guilty, punished in accordance with the Law. See Omoijahe v. Umoru (2000) FWLR (Pt.29) 2401 at 2406. See Ogboni v. Ojah (1989) 1 NWLR (Pt.100) 725, Alesinloye v. Oyediran (1999) 12 NWLR (Pt.63) 481, Ojeme & Ors. v. Momodu II (1995) Chief Tom Ikimi v. Godwin Omamuli (1995) 3 NWLR (Pt.387) 335, Military Governor of Kwara State v. Rufus Afolabi [1991] 6 NWLR (Pt.196) 212 and Oyeyinka v. Osague (1994) 2 NWLR (Pt.328) 612.
Still on procedure, the law appears fairly settled on authorities like Awobukun v. Adeyemi (1968) NWLR 289, Gloria Nya v. Madam Eme Bassey Edem [2005] 4 NWLR (Pt.973) 345 at 367 –

368, Deduwa & Ors. v. The State (1975) 1 ALL NLR (Pt.1) 1 and Ikechukwu Ezenwankwo v. The State (2013) LPELR – 21257(CA); that in line with the instant case, the alleged contempt committed ex-facie was against the order of the learned Trial Judge, Ngozi Opara, J; the learned Trial Judge ought not have heard the case personally because he would have been a Judge in his own cause as amply demonstrated by his partisanship in doing the biddings of the Respondents nay their learned Counsel. In the said case of Deduwa & Ors. v. The State (supra) at page 16, the Supreme Court held that the power to commit for contempt is not retained for the personal aggrandizement of the Judge or whoever mans the Court but such powers are created, maintained and retained for the Preservation of the honour and integrity nay dignity of the Court such that the Judge wields the power in trust for the Court and society and by the tradition of his office should eschew any type of temperamental outburst as would let him loose his control of the situation and appreciation of the correct method of procedure.
Earlier on at page 14 of the Report the Apex Court had held

that:
“Where the Judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in Court, it cannot be said that the attempt is in the face of the Court. In such case, a Judge should not try a contempt in which he is involved,”
Finally on this vexed issue of procedure adopted by the Trial Court, the learned Counsel for the Appellants has complained of the scathing remarks of the learned Trial Judge at page 122 of the Records about the absence of the Appellants from Court. I have not seen any unsavory comment by the Judge at page 22 of the Records apart from the remark in lines 12 to 14 that:-
“I shall not conclude this Ruling without mentioning that the refusal of the defendants to show up even after there was substituted services leave much to be desired.”
Ordinarily the above comment cannot be described as scathing assuming the Appellant’s service by substituted means was effected or proper at their last known address as deposed to on Oath by the 1st Respondent. Suffice it to say however, that the Supreme Court’s admonition to the Courts in Boyo v. Attorney General Mid West

State [1971] 1 ALL NLR 342 at 352; that:-
“Whether the contempt is in the face of the Court or not in the face of the Court, it is important that it should be borne in mind by Judges that the Court should use its summary powers to punish for contempt sparingly. It is important to emphasize that the fact that Judges should not display undue degree of sensitiveness about this matter of contempt and they must act with restraint on these occasions”;
is very apt as far as the overall conduct of the learned Trial Judge was concerned when he tried the Appellants in absentia without preferring a formal charge against them but punished them brevi manu with convictions and sentences.
Having tried the contempt ex-facie curiae allegedly committed by the Appellants he was patently wrong and the entire proceedings were a nullity, more so, when the order allegedly violated was never served on the Appellants at their last known Address which was out of jurisdiction and no application was brought by the Respondents for that purpose.

On the Notice of Preliminary Objection at the Trial Court as well as the motion to set aside the order allegedly disobeyed in

page 66 of the Records, it is clear that the learned SAN Livy Uzoukwu on behalf of the Appellants had filed a motion dated 23rd day of June, 2003 praying for an order setting aside the Order of interlocutory injunction made in Suit HM/20/2003 against the Appellants (then Defendants/Applicants) on the 7th day of May, 2003 which order was attached to the Motion and marked Exhibit ‘C’ on the ground that the Order was a Nullity.

The motion was supported by an Affidavit of five paragraphs deposed to by one Loveline Ajaegbu, Female and Litigation Officer in the Firm of the Learned SAN Livy Uzoukwu, & Co. Also annexed to the Affidavit in support are Copies of the Writ of Summons, Affidavit, of Service of 7th May, 2003 said to have been served on Appellants by pasting marked Exhibits A, B, and D respectively. (See pages 67 – 69 of the Records and 70 -77).

Also at pages 78 and 79 the learned Senior Counsel for the Defendants/Appellants further filed the Notice of Preliminary Objection on 11/7/03 dated 7th of July, 2003. While the motion was slated for hearing on Wednesday 25th June, 2003, the Notice of Preliminary Objection was slated for argument on

Wednesday the 16th of July, 2003.

For the avoidance of doubt, the Notice of Preliminary Objection sought for the following Orders:
“1. An ORDER that the action here of Suit No. HME/20/2003 is incompetent and that the Court lacks the jurisdiction to entertain same.
“2. An ORDER striking out the said Action or setting aside all proceedings and Orders made in the matter as being null and void.”
The Ground upon which the objection was predicated was: “That a condition precedent to the exercise of the Court’s jurisdiction was not fulfilled.”

Whereas, the learned Counsel for the Appellants has rightly contended that those Applications afforded the trial Court the veritable opportunity to bring the coach of justice back on track, it did not do so but that in the proceedings, the Court rather on the 29/7/2003 paid more attention to contempt proceedings as can be gleaned from the proceedings of that day as contained in pages 124 -128 where the Court left in a fury to chambers and without announcing whether he had adjourned or stood down the case came back upon the instigation of the Learned Counsel for the Respondents, for the Appellants to

be committed to prison for disobeying the order of Court made on the 7th of May, 2003 or in the alternative that the Court issued Bench warrant to compel the physical appearance of the Appellants.

Inspite of the fact that the learned Senior Counsel for the Defendants drew the Court’s attention to the fact that they had filed the motion in question and had served same on the Plaintiffs through their Counsel praying the Court to set aside the order for interlocutory injunction and further urged the Court to discountenance the Application made by the Plaintiffs/Respondents Counsel and extend its grace towards granting them an adjournment to enable the Defendant’s appear, the Respondents’ Counsel also goaded the Court into issuing Bench warrant for the arrest and detention of all the Appellants i.e. the 1st Appellant and her children.

Even on the 29th of July, 2003, when Mrs. Ethel Chukwu was present in Court and the Motion to set aside was still pending the learned Counsel for the Respondents at page 130 persisted in his instigation of the Court to proceed with the application for committal for according to him the integrity of the Court was being

undermined and that the Appellants be dealt with according to law. He did not stop there but proceeded to further goad the Court to remand the said 1st Appellant in prison Custody pending the availability of her children. In so submitting, he relied on Fame Publications Ltd. v. Encomium Ventures Ltd. & Ors (2003) FWLR (Pt.9) 1440 at 1444.

At page 131 of the Records it would be recalled that Livy Uzoukwu Esq, SAN had pointed to the Court that the 2nd – 4th Defendants were out of the Country and not resident in Nigeria. Specifically the 2nd Defendant was said to be living in South Africa, the 3rd in South Korea while the 4th lives in the United States of America. And had never visited Nigeria within the last four years in 2003 and that the 1st Appellant came to Court without execution of Bench warrant and had therefore obeyed the order of Court.

The Learned Senior Advocate having told the Court that he had discharged the undertaking to produce the 1st Defendant, then drew the Court’s attention to the fact the:
“There are two Applications by the Defendants before the Court. The 1st was filed on the 24/6/2003. That application is praying

that the order which the defendants allegedly breached be set aside on grounds of nullity. It is settled law that when such an application is filed the Court has a legal obligation to hear the parties. The authority earlier on cited by Counsel for the Plaintiff very clearly settled that issue. I therefore refer to the same case reported this time in (2000) 1 NWLR (Pt.661) page 105 at 112 Paragraphs E – F. More fundamentally there is Notice of Preliminary Objection challenging the competence of the entire action and the jurisdiction of the Court to entertain same”‘

At page 132, the Learned Senior Counsel continued in his submission and cited authorities to buttress the position of the Law that once jurisdiction of a Court is put to question the Court ought to proceed to determine whether it has the jurisdiction to entertain the suit or determine the competence thereof before taking any further step in the proceedings.

???Indeed at the same page inspite of the fact that the Learned Senior Counsel had stated the correct position of the law as I had earlier held, that it would be wrong and unfair to punish the 1st Defendant/Appellant for breach of the order

and it turned out that the Honourable Court had no jurisdiction to entertain the Suit for failure of a condition precedent more so, when “(3) committing her without trial will certainty negate her right to fair hearing’ (4) The alleged contempt is contempt ex-facie curiae, Therefore it entails full criminal trial, and she is entitled to full criminal trial before punishment of any nature is meted out to her. I refer to the case of Omoijahe v. Omoru (2000) FWLR (Pt.29) 240 at 244 para. H;” and called on the Honourable Court in view of the Applications before it to resolve the issue of jurisdiction before taking a further step, the Learned Counsel for the Respondent in a bid to fulfill the sinister motive of the 1st Respondent of imprisoning the 1st??Appellant and children, argued per contra and giving spurious reasons why the Appellants’ Motion and Notice of Preliminary Objection should not be considered even after acknowledging the receipt of these processes before that date. The Learned Trial Judge purporting to have risen to consider the Ruling without recording whether there was a stand down or adjournment came back from Chambers and made the order for the

arrest and detention of the 1st Appellant till the 31st of July, 2003. The eventual conviction and imprisonment of the 1st Appellant and children is now history.

The Learned Counsel for the Respondents has justified the curious procedure adopted by the Learned Trial Judge on the authorities of Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 at 556 – 557 per Karibi-Whyte, JSC, who held that:
“The Judicial powers constitutionally vested in our Courts includes all the inherent powers of sanctions of the Court of Law. This involves the powers to regulate the exercise of its discretion, The Court in the regulation of its proceedings, protection of its dignity and effective administration of impartial justice is entitled to and indeed obliged to say that it will not allow a process issuing out of the Court to be treated with indifference, levity and distain,” but as sacrosanct and efficacious as this dictum is, it can only apply where the Court is seised of the jurisdiction to entertain the suit and due process was followed in the course of the proceedings without a breach of a party’s fundamental right to fair hearing.

Contrary to the submission of the

100

Learned Counsel for the Respondents that the Appellants were given ample opportunity to defend themselves of the contempt of Court, I have already held that none of the Appellants was formally charged and none of them took her or his plea nor was any of them tried formally for the alleged civil or criminal contempt committed ex-facie curiae despite the direction by the Learned Livy Uzoukwu, SAN on the Court which the Court ignored at the prompting of the Learned Counsel for the Respondents.

101

above cited case, that to hold otherwise is to cloth a party against whom a Judgment is made with the discretion to decide, in his wisdom, that the Judgment is invalid and not binding on him as this would tantamount to invitation to anarchy.

102

Court to guard jealously its powers and should give first consideration to the proceedings in contempt of its Court even when the Court is faced with the question of its competence to adjudicate on a matter from which the contempt issue arose.”
With due deference to the Learned Sage of blessed memory, this last portion of his dictum would seem to have ignored the basic position of the law as had long been laid down in a plethora of authorities like Madukolu v. Nkemdilim and Okafor v. A- G Anambra State (1991) 6 NWLR (Pt 200) 659 at 678 paras, F – G, Afro Continental v. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt.813) 303 at 917 – 318 Paras F – B, and the recent cases of Group Danone v. Voltic Nig. Ltd (2008) 7 NWLR (Pt. 1087) 668 at 667 paras. G – H and indeed of the Supreme Court in Dr. Michael Emuakpor Abeke v. Barrister A. A. Odunsi & Anor (2013) LPELR – 20640 (SC). (2013) LPELR – 200640 (SC) on the fundamental nature of jurisdiction and fair hearing in the adjudicatory system/process.
In the last case, the Supreme Court per Ariwoola, JSC at pages 17 Paras. B – G to 18 Para. 8 stated the current position of the law

103

thus:
“However, generally, the common law principle which precludes persons in disobedience of the order of the Court from being heard in respect of the matters in which they stand in disobedience had been settled. In Hadkinson v. Hadkinson (1952) 2 ALL ER 567 at 573; Denning, L.J opined thus:
“I need hardly say that it is very rare for this Court to refuse to hear Counsel for Appellant. No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard for the simple reason that, if he is not heard, his right of appeal is valueless.
the fact that a party to a cause has disobeyed an Order of the Court is not of itself a bar to his being heard but if the disobedience is such that, so long as it continues, it impedes the cause of Justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the Orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason shown why it should not be removed.
There are however a few exceptions to the general rule, The principle

104

does not apply to applications by an alleged contemnor challenging the Order on the ground of lack of jurisdiction of the Court. There is clear distinction between the right to be heard in defense of the Order made and the right to enforce yet an order whilst in disobedience. See; First African Trust Bank Ltd & Anon v. Basil O. Ezegbu & Anor (1992) NWLR (Pt 264) 132, (1993) 6 SCNJ 122; (1992) LPELR 1279.”
See further Olu v. Sunday Iranloye (2007) LPELR – 8748 (CA) per Agube JCA at page 34-35 paras, G-F, Odua Investment Co. Ltd v. Tolabi (1977) 7 S.C.N.J. 600 at 617 and Eriobuna v. Obiorah (1999) 8 NWLR (Pt.616) 622.
Infact even on the authority of Fame Publications Ltd v. Encomuim Ventures Ltd & Ors (2000) LPELR – 6833 (CA) Per Aderemi JCA who read the Lead Judgment of the this Court quoted with approval the Judgment of Wali, JSC in F.A.T.B. v. Ezegbu (1992) 9 NWLR (Pt.264) 82 and that of Karibi – Whyte, JSC who held at page 151 of the Judgment/Report that:
“In any respectful opinion, the rule precluding hearing a contemnor before the Court is founded on principle. To every rule there are always exceptions. The exceptions to the

105

general rule that a party in contempt may not be heard as distilled from the authorities referred to supra are: “(1) Where the party is seeking for leave to appeal against the order of which he is in contempt. (2) Where the opposition to the order is one on the ground of lack of jurisdiction. (3) Where the contemnor is seeking to be heard in defence of the Order. (4) Where it can be shown that there were certain procedural irregularities in making of the orders which irregularities make the order unsustainable.”

In the instant case these exceptions to the general rule exist and the Court below ought to have heard the Applications of the Appellants rather than pander to the whims and caprices of the Learned Counsel for the Respondents and indeed the 1st Respondent. I am therefore in tandem with the Learned counsel for the Appellants that the true test of fair hearing is the impression of a reasonable man watching the proceedings of the Lower Court in its entirety, will go away with and that in the instant case no reasonable man would have left the Court without the impression that the Court below was biased in the way he denied the Appellants’ right

106

to fair hearing. Accordingly, I am of the firm view on all the authorities relied upon particularly in the Appellants Reply Brief, that the entire proceedings of the trial Court was a nullity and the conviction and sentences imposed on the Appellants therefore cannot stand.

The proceedings, conviction and sentences and every order made thereat by the Learned Trial Judge are hereby set aside as this appeal is meritorious and is accordingly allowed.
All the Appellants are hereby discharged and acquitted.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment just delivered by my learned brother, Igwe Ignatius Agube JCA and I agree with him, completely, that the appeal has merit and should be allowed.

I think the learned trial judge played a very dangerous role in this case, surrendering his Court to be used as venue of oppression and instrument of illegalities. The mere fact that Appellants (as Respondents) had brought an application before him, challenging his jurisdiction to order bench warrant against them and seeking to set aside that unfortunate order, for want of proper

107

service of the process giving rise to the order, should have made the trial Court to be wary and toe the path of reason and of the law. But he threw caution to the winds and proceeded to do more harm and breach the law, by judging and sentencing parties, who were never properly served or arraigned before him for alleged contempt of Court, in absentia.

In the recent judgment of this Court in the case of Anozia Onowu v. Ogbuagu ABC Ogboko and 2 Ors: CA/OW/104/2009, delivered on 6/1/16; it was held:
There are many judicial decisions to the effect that Forms 48 and 49 are Court processes to be issued by the Registrar of Court, upon application by the judgment creditor. In the case of Akpan v. Akpan (1996) 7 NWLR (Pt.462) 620, my Lord, Niki Tobi JCA (as he then was) held;
“Since contempt proceedings affect the liberty of individuals the law expect, strict compliance with procedural rule. Therefore, where there is the slightest deviation or non compliance with the rules, a Court of law must exercise its discretion in favour of the contemnor. This is because the law cannot gamble with the liberty of the individuals… In proceedings relating to

108

contempt of the order of Court, every document that is served on an alleged contemnor must have the imprimatur of the Court and must not look or give impression that it is coming from an individual or a private source (Mora & Ors v. Adeyeye (1990) 4 NWLR (Pt.142) 76; See also FCDA v. Koripamo Agany (2010) 14 NWLR (Pt.1213) 377, where it was held that any irregularity in procedure for committal is fundamental vice, which vitiates the entire application”

To make matters worse, the Respondents in this case were not served with the alleged Forms, as required by law, which insists on personal service of the contempt proceedings. See FCDA v. Karipamo – Agany (supra)
“The notice of motion and affidavit and grounds for committal for contempt committed ex-facie Curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of the case demands it…”
In that case of Anozia Onowu v. Ogboko (supra) it was further held:
“Appellant being a lawyer of many years standing should have known that the order for substituted service of the “writ

109

of summons and other processes on the case… did not extend to and could not have covered contempt proceedings, a completely new process of quasi criminal nature, which alleged disobedience to Court order and which alleged disobedience to Court order and threatened the Respondents with imprisonment. They needed to be personally served with the alleged contempt and afforded the opportunity to defend themselves.”

It should also be noted that the trial Court delved into the issue of contempt of Court, convicted and sentenced the Appellants to terms of imprisonment, when the actual matter before it, that day, had to do with the letter for adjournment by the Appellants counsel and what to do with the 1st Appellant, who had earlier (on the previous sitting) eloped from Court, while the Court retired to chambers to write a ruling. That means, the Court did not care that the Appellants, were not before it and were not heard on the alleged contempt, before it convicted and sentenced them. In the case of Nwadike v. The State (2015) LPELR – 24550 (ca), this Court held;
“…It is equally doubtful whether a Court can assume the trial of an

110

accused person and make order(s) to curtail his liberty, when the accused has not been, formally, arraigned before the Court, thereby coming under or surrendering to the authority, protection and mercy of the Court. While arraignment is yet to be done, the Accused person is, usually, in the care and control of the Prosecution, who has a duty to produce him in Court and surrender him to the Court, by formal arraignment, wherein he (accused) is made to take his plea. Of course, the process of formal arraignment has earlier been stated in this judgment as per the decision in the case of Olabode v. State (2009) 11 NWLR (Pt.1152) 254, ration 2. See also Blessing v. FRN (2013) WRN 76; Edet v. State (2008) LPELR 4016 (CA); (2008) 14 NWLR (Pt.11 Q6) 52. It was, therefore, premature and wrong, in- my view, for a the learned trial Court to pronounce the order of remand on the Appellant, when he was yet to be surrendered or presented to the Court by the prosecution, for formal arraignment.
In the case of Gwarzo v. COP (2014) LPELR 23470 (CA) this Court relied on the case of Okeke v. State (2003) 15 NWLR (Pt.842) 25, where the Supreme Court said that “an

111

arraignment is not a matter of technicality; it is a very important initial step in the trial of a person in a criminal charge and that where there is no proper arraignment, there is no trial. Without a valid arraignment of the accused person, no trial in Law would have commenced.” I also believe that where no criminal trial has commenced, pursuant to a valid arraignment, the Court lacks powers to pronounce on the liberty of the accused, to order for the remand of the accused, except perhaps, where he is produced in Court, specifically, under what is usually termed a holding charge”, usually applicable in Magistrates Courts.”
In the case of Mohammed Abacha v. State (2002) 7 SC (Pt.1) 1 the Supreme Court harped on the need for the Court to protect the accused against oppression:
The power of the Court to prevent abuse of the process of Court includes the power to safeguard an accused from oppression and prejudice… The process of Court must not be made to oppress a citizen so as to charge a citizen with an offence, with a view to harassing him…
Did the trial Court have power to order the remand of the Appellants

112

and/or to convict them when they were yet to be arraigned and when their application, challenging the legality/validity of the contempt order, and the jurisdiction of the Court to make the order, was yet to be heard and determined? I strong doubt. In the case of Edet v. State (2008) 14 NWLR (Pt.1106) 52 at 58; this Court held:
“The Court has the jurisdiction to safeguard an accused person from oppression or prejudice. The Court will fail in its fundamental duty, if, in the face of a defective or bad charge it refuses to entertain an application to quash the information, and hastily proceeds to set the criminal case for trial. The Court has the power and duty to stop a prosecution, which, on the facts, creates abuse and injustice. In the instant case the objection of the Appellant at the trial Court was on the legality or validity of the information brought against him. At the material time when the objection was raised, no prima facie case had been established, justifying the criminal trial against the Appellant. Moreover, proper arraignment had not commenced, since the Appellant was challenging the regality or validity of the information brought against

113

him. Nwadiki v. State (supra)

I too, therefore allow the appeal and abide by the consequential order in the lead judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity to read in advance the Judgment delivered by my learned Brother, Ignatius Igwe Agube, JCA and I am in agreement with his reasoning and conclusions in allowing this Appeal. I have nothing more to add to a well written Judgment and abide by the consequential orders made thereto.

114

Appearances

O. S. Akinola, Esq. with him, Uche S. Chukwu (Miss) For Appellant

AND

I. F. Akponye, Esq. For Respondent