EVARISTUS D. EGBEBU v. THE INSPECTOR GENERAL OF POLICE & ORS
(2016)LCN/8317(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of March, 2016
CA/OW/12/2015
RATIO
APPEAL: WHETHER A PARTY CAN FORMULATE MORE THAN ON ISSUE FOR DETERMINATION AND THE EFFECT OF ISSUES DISTILLED
The law is trite, that a party cannot formulate more than one issue for determination of appeal from a single ground of appeal, though he can combine two or more grounds of appeal to generate an issue for determination of the Appeal. Moreover, once a party has distilled an issue from a given ground of appeal, or joined the ground with other ground(s) to distill an issue for determination of the appeal, that ground(s) is no longer available to combine with another or other grounds to distill another issue for determination of the appeal. See the case of Anodu Vs Commandant PC Maiduguri (2009) 15 NWLR (pt.1163) 75; SPDC Vs Abia State (2015)3 CAR 433; Barr. Orha Jev. and Anor. Vs Sekan Dzua Iyortyyom & Ors (2014) NWLR (pt.1428) 578 at 608 and a recent decision of this Court in the case of Rev. John Iroganachi Vs Mr. Okechukwu Madubuko & Anor. CA/PH/270/2006, delivered on 26/2/16 (pages 5 and 6 thereof). per. ITA GEORGE?MBABA, J.C.A.
APPEAL: THE EFFECT OF A FINDING OF COURT NOT APPEALED AGAINST
The law is trite that, a finding of Court not appealed against remains conclusive and binding.
Nnaji Vs Alozie (2014) LPELR ? 24014 CA, Ojeabuo Vs FRN (2014) LPELR 22555; Amale Vs Sokoto L.G. (2012)5 NWLR (Pt.1292)181; Igbokwe Vs Edom & Ors (2015)8 CAR 224. per. ITA GEORGE?MBABA, J.C.A.
COURT: WHETHER A JUDGE MAY DESCEND INTO THE ARENA OF CONFLICT IN A TRIAL TO GENERATE EVIDENCE OR FACTS NOT CANVASSED BY WITNESS (ES)
We have held, severally, that: A judge must not descend into the arena of conflict in a trial to generate evidence or facts not canvassed or adduced by witness (es), or apparent on the face of the Records before him, to decide a case.? See Obi Vs A.G. Imo State (2014) LPELR ? 24280 CA; Ayoade Vs Spring Bank Plc (2014)4 NWLR (1396) 93 at 128; Ajakaiye Vs The State (2015)5 WRN 64; Ojo Vs Oseni & Anor (1987) LPELR ? 20876 CA. per. ITA GEORGE?MBABA, J.C.A.
APPEAL: WHETHER A COURT IS ENTITLED TO RAISE AN ISSUE AND DECIDE ON IT WITHOUT AFFORDING THE PARTIES OPPORTUNITY TO BE HEARD
Even in a purely criminal case, once a charge is filed and served on an accused person and he is arraigned in Court, the fact that the accused is to be tried before another judge, in which situation the trial is to commence, denovo, does not mean that the earlier service of the charge and processes on him must be set aside by the new judge and order made for issuance of fresh charge and service of same, personally, on the accused person. Of course, the charge and service of same on the accused person remains valid, though he is expected to enter fresh plea, before the new judge. In the case of Nobis-Elendu Vs INEC & Ors (2015) LPELR 25127 (SC) it was held:
The position of the law is that a Court is not entitled to raise an issue and decide on it without affording the parties opportunity to be heard. This is because in doing so the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See Kuti vs Balogun (1978) 1 SC 53 at 60; Obawole Vs Williams (1996)10 NWLR (Pt.477) 146; Stirling Civil Engr. Nig. Ltd Vs Yahaya (2005)11 NWLR (Pt.935) 181; Omokuwajo Vs FRN (2013)9 NWLR (Pt.1359) 300; Onimiyi Vs Alabi (2015) LPELR ? SC 41/2004.
An appellate Court is also not entitled to raise an issue not raised by either of the parties at the trial Court or an appeal and base its decision on thereon, without affording the parties an opportunity to be heard. The Court, being an impartial arbiter, must not be seen to be making a case for one of the parties. per. ITA GEORGE?MBABA, J.C.A.
PRACTICE AND PROCEDURE; THE ESSENCE OF FILING AN AFFIDAVIT
We have stated several times, that the essence of filing of affidavit of service in a suit is to certify and ascertain that the Party had been served with the process of Court, and that where the party is Court and/or represented by Counsel and has taken steps in the case, by filing process to defend the suit, there cannot be any valid complaint or question again, as to whether or not the party had been duly served with the process(es) of Court. See the case of SPDC Vs Registrar of Business Premises, Abia State (2015) LPELR ? 24285 (CA), (2015)3 CAR, where this Court observed as follows:
I am always bothered about the level of mockery the law would be subjected, when a party, who has been served with the processes of Court, comes to the same Court to seek nullification of the service on him of the processes, alleging improper issuance or service of the process. See Oseni Vs Oige & Anor (2014) LPELR ? 22919(CA); Khalid Vs Al-Nasim Travels & Tours (2014) LPELR 22331.
I know that in appropriate circumstances there can be genuine complaint about issuance of service of process that goes to the root of the case as shown in the case Kida Vs Ogunmola (2006)All FWLR (Pt.327) 402 at 406, wherein it was held that failure to commence the originating process, validly, affected the writ and robbed the Court of jurisdiction, as the processes lacked competence. But that could not said of the case, of which the originating process was duly issued, with the leave of the trial Court and served on the Appellant See also Oseni Vs Ologe (2014) LPELR ? 22919 (CA) where this Court said, reechoing the observation in Zaria Local Govt. Council & Anor Vs Kwanstan: CA/K/151/2009, delivered on 17/1/14: .. for me, it sounds ridiculous and it beats every sense of logic and sound reasoning, for a man, who has been served with the process of Court and for which he responded by entering his appearance and filing processes in his defence to contest the case and at the end of the case, to turn round and seek to nullify the judgment, on the grounds that there was no due service of the originating process on him? That is pandering to ridiculous level, the use of technicalities to frustrate justice! Having come to Court and taken part in the proceedings, without complaint of any sort, I believe the Appellants cannot, in good conscience, raise any issue of non compliance with Order 2 Rule 1 (4) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, since their appearance and taking part in the case were conclusive evidence of compliance with the law relating to service. After all, the purpose of that provision of the law was to ensure that a respondent is dully served with the process of Court, before a Court can hear the applicant. per. ITA GEORGE?MBABA, J.C.A.
PRACTICE AND PROCEDURE: CONTEMPT PROCEEDINGS; THE ESSENCE OF A CONTEMPT PROCEEDINGS
A contempt proceedings is meant to call one in disobedience to Court judgment, to order and to protect the integrity and sanctity of the Court, and ensure effective administration of justice. See Alechenu Vs A.G. Benue State (2011) LPELR – ; Nwawka Vs Adikamkwu (2015) All FWLR (Pt. 804) 2064; Ogunleye Vs Aina (2012) 28 WRN 41. Every Court should therefore be alert and keen in jealously warding off every affront to its authority and integrity, while also being careful in the exercise of such powers, to avoid being primed by base spirit of vendata and/or display of power. Surprisingly, the trial Court rather did the opposite. In that case of Nwawka Vs Adikamkwu (2015) All FWLR (Pt.804) 2064, it was held:
any judgment made by a Court deserves and demands obedience whether or not the judgment was well founded, and nobody must be allowed to stand in the way of translating the decision of a Court. The power to punish for contempt is also constitutional and the Courts are expected to guard their powers, integrity and decisions, jealously, ready to punish any act of disobedience, or conduct that puts a Court or its decision in derision, or poses an affront to its being obeyed or respected. per. ITA GEORGE?MBABA, J.C.A.
Before Their Lordships
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria
PETER OLABISI IGEJustice of The Court of Appeal of Nigeria
Between
EVARISTUS D. EGBEBUAppellant(s)
AND
1. THE INSPECTOR GENERAL OF POLICE
2. THE ATTORNEY GENERAL OF THE FEDERATION
3. THE NIGERIA POLICE COUNCIL
4. THE POLICE SERVICE COMMISSIONRespondent(s)
ITA GEORGE?MBABA, J.C.A.(Delivering the Leading Judgment):?The Appellant, as plaintiff in the Court below, filed a suit No.FHC/PH/57/97 on 31/1/97, challenging his compulsory retirement from the Nigeria Police Force and sought orders of Court to set aside the retirement, which was meant to have retrospective effect; he also sought re-instatement, without loss of seniority and payment of all his salaries and emoluments, from 27/10/90 until today (date of judgment).
The Respondents challenged the jurisdiction of the trial Court, pursuant to Decree No 17 of 1984 and succeeded in getting the suit struck out on 26/7/99. The appeal against the striking out of the suit succeeded and the suit was remitted to the Lower Court, for determination on the merits.
On the creation of Owerri Division of the Federal High Court, the suit was transferred from Port Harcourt Division of the Federal High Court, to Owerri Division and the suit acquired a new number ? FHC/CS/114/2006. That was in 2006, when the writ of summons was also amended to join the 4th Respondent (Police Service Commission).
?On 23/5/2008, the Lower
Court made an order of accelerated hearing of the case and also ordered for substitute service of all the processes on the 1st, 3rd and 4th Respondents. The case was heard and judgment delivered on 19/2/2009, on the merits, and in favour of the plaintiff. The trial Judge, Hon. Justice, C.V. Nwokorie, made the following orders:
?(1) The purported compulsory retrospective retirement of the plaintiff under Decree No. 17 of 1984 is not sustainable in law
(2) The purported compulsory retrospective retirement of the plaintiff is hereby declared unlawful and unconstitutional.
(3) The retrospective retirement of the plaintiff by the 1st Defendant through their letter dated 6/3/91 Ref. No. P/10356/95 is hereby set aside as being unconstitutional, wrongful, null, void and of no effect whatsoever as it offends against the principle of natural justice, having initiated action under the Civil Service Rules and purportedly retiring the plaintiff under a Decree;
(4) The Plaintiff should (sic) be reinstated to his appropriate rank in the
Nigeria Police Force, without loss of seniority and should be paid all his salaries and emoluments from 27/10/2009 until today.
(5) I make no award of costs.?
The judgment Debtors (now Respondents) ignored the judgment, and a year after, Appellant commenced contempt Proceedings against them (judgment debtors/Respondents) for refusing to obey orders of Court?made in the judgment of 19/2/09. Forms 48 and 49, were served on all the Respondents by the Bailiff, who filed?affidavit of service to that effect, particularly to show the difficulties he had to serve the 1st Respondent directly/personally, but finally served him through the legal Department of the 1st Respondent?s office at Louis Edet House, Police Force Headquarters, Abuja; that service was acknowledged, on behalf of the 1st Respondent, by Commissioner of Police, Legal/Prosecution Section, FCD, Abuja on 17/2/2010, by letter Ref. C.B:3960/X/LEG/FHQ/ABJ/VOL.Vol.64/18.
?The committal Proceedings proceeded to hearing before Hon. Justice L. Akanbi on 25/10/10, who?suo motu, ordered parties to file written addresses to satisfy him that the
service of processes in the committal proceedings on the respondents sufficed, as proper and adequate personal service. The addresses were filed and on 23/11/2010, the trial Court delivered ruling, and ordered for the Respondents to show cause, why absolute committal orders for contempt should not be made against them.
?Appellant said the 1st to 4th Respondents, with impunity, also ignored the order to show cause, made on 23/11/2010. He said that on 26/6/13, the 2nd Respondent?s Counsel tendered letters addressed to the 1st and 4th Respondents, directing them to comply fully with the judgment, delivered on 19/2/09 by the Lower Court, and the matter was adjourned to 25/9/2013 for conclusive report of compliance; he said that several adjournments were, thereafter, made for an arbitration panel that opted to settle the disputes to report, and progress was made by the panel, as the arbitration panel resolved on 28/2/14 (under the Chairmanship of Adekeye JSC (RTD) ? Commissioner 1 of the 4th Respondent):
?To summon all parties to the suit for a congress with a view to resolving the appropriate rank upon which the Plaintiff
may be placed.?
Appellant said that upon the above report being given on 3/3/14, the Lower Court adjourned the case to 5/5/2014; he said there was sufficient proof that the 4th respondent?s Counsel was aware of the 5/5/2014 date. Appellant said surprisingly, the Lower Court, on 19/11/14 ordered (notwithstanding the progress in the contempt proceedings since 2010) that the Judgment Creditor/Applicant should commence the contempt proceedings, de novo, by serving the originating processes afresh on all the judgment debtors/respondents, personally. It adjourned the matter for the hearing, de novo, discountenancing the objection by Appellant for commencement of the hearing, denovo.
?Appellant said that on 2/7/14, he and the Respondents were all represented in Court, and 4th Respondent filed a counter affidavit, exhibiting, among other things, its letter of re-instatement of the Appellant, without any rank, dated 17/3/14, contrary to the judgment which stipulated that the reinstatement should be done without loss of seniority to the Appellant; that 4th Respondent had also exhibited the arbitration proceedings of 28/2/2014, and
tried to show why it should not be committed to prison. But, despite the state of things, on that date 2/7/14, the trial Court, suo motu, questioned the service of the originating processes on all the Respondents, abandoned the enforcement of the subsisting order to show cause, and ordered parties to file written addresses to satisfy the Court that the service of the processes on the Respondents was adequate and personal. The addresses were filed, adopted on 9/7/2014.
On 19/11/2014 the trial Judge, S.M. Shuaibu J. overruling the earlier decisions on the matter, held that the service of all the processes on the judgment debtors/respondents were incompetent. He ordered fresh service on all the respondents, personally, including the President of the Federal Republic of Nigeria, as the chairman of the 3rd Respondent. He suo motu, set aside the subsisting orders for substituted service made by him on 14/11/2012. Meanwhile the extant order of 23/11/10 for Respondents to show cause was never enforced or set aside!
?That is the Ruling the Appellant appealed against, as per the Notice of Appeal, filed on 28/11/14 (pages 234-243 of the Records of Appeal). He
amended the Notice of Appeal on 26/2/15, which raised 7 grounds of appeal. He filed a Appellant?s brief on 26/2/15 and distilled 4 issues for the determination of the appeal, as follows:
(1) ?Whether the decision of the Lower Court made, suo motu, on 5/5/2014 that all originating processes in this Contempt proceedings be served afresh on all the Respondents, personally, and the committal proceedings commenced denovo without any application whatsoever or address by the parties, the matter having been determined on 23/11/2010, is lawful. (Grounds 2 and 6)
(2) From the facts of this matter, whether the decision of the Lower Court on 19/11/2014, suo motu setting aside its order of substituted service made on 14/11/2012 is sustainable (Ground 1)
(3) Whether the decision of the Lower Court in its Ruling on 19/11/2014, setting aside the service of all Court processes in this matter on the Respondents and further ordering service be affected on 1st and 2nd Respondents, personally, as well as the Chairmen (sic) and Chief Executive Officers (sic) of the 3rd and 4th Respondents
are lawful (Grounds 3, 4 and 7)
(4) Whether the decision of the Lower Court in its Ruling on 19/11/2014 that personal service of processes in Civil Matters is inapplicable in this contempt proceeding is sustainable (ground 5)
?The 2nd Respondent filed his Brief of arguments on 5/5/2015 and distilled 4 issues?too, for the determination of the appeal, as follows:
?(1) Whether the trial Court was right to suo motu commence trial of the contempt proceedings de novo and order that all originating processes in the contempt proceedings be served personally on the Respondents, the matter having commenced before a different Judge? (Grounds 1, 2 and 6)
(2) Whether the trial Court was right to set aside its decision made on 14/11/2012 of an order of substituted service, upon raising the issue suo motu and after parties have properly addressed the Court (Ground 1).
(3) Whether the trial Court was right in setting aside in its ruling on 19/11/2014, its order of substituted service in the contempt proceedings and thereby ordering
service of all originating processes to be effected personally on the Respondents? Grounds 3, 4 and 7.
(4) Whether the trial Court was right in its ruling on 19/11/2014 that Order 6 Rule (8) of the Federal High Court (Civil Procedure) Rules, 2009 applied to service of processes in ordinary civil suit, and not intended by the legislature to govern service in contempt proceedings. (Ground 5).?
None of the other Respondents filed any brief, but the Appellant filed a Reply brief on 11/6/15 to contest the fresh points of law raised in the 2nd Respondent?s brief.
?When the appeal came up for hearing on 17/2/16, Appellant and the 2nd Respondent adopted their briefs and moved us accordingly. There was evidence of service of the processes and the hearing notice on the 1st, 3rd and 4th Respondents.
Arguing the appeal, Appellant, who appeared in person, said that the aphorism that Justice delayed is Justice denied squarely fits in this matter; that 6 years after the delivery of judgment, the decision of the Lower Court has not been complied with, yet there is no appeal pending in any Court, on the
judgment and there is no application for stay of execution by anyone. He said that the arbitration decision reached on 28/2/2014, chaired by a retired Justice of the Supreme Court, was disobeyed by the 4th Respondent; that, still worse, 4 years after making an order on 23/11/10 for the 1st and 4th Respondents to appear in Court and show cause why they should not be committed to prison for disobeying the orders of the Court in the judgment delivered on 19/2/2009, the same Lower Court suddenly without cause, and suo motu on 19/11/14 ordered all originating processes to be served afresh on the Respondents and the case to commence denovo.
?Counsel referred us to the Ruling of the trial Court on 19/11/2014 (page 19 of the Records) and submitted that there was nothing before the Court to justify the suo motu order of the Lower Court to commence the matter de novo; that the well considered ruling and order of the Lower Court, made on 23/11/2010 for the 1st and 4th Respondents to show cause, was still extant and cannot be set aside by the same Court or judge of co-ordinate jurisdiction, as it cannot sit on appeal over its decision; that on 5/5/2014 the same Court
had ordered that the originating processes be served on the Respondents (glossing over the extant order to show cause, made on 23/11/2010) and on 19/11/2014, the trial Court set aside its order of substituted service, made on 14/11/2012, still leaving the order to show cause, extant. He submitted that the trial Court, having heard and determined the application for committal of the 1st and 4th Respondents on 25/10/2010, and having ruled and made order on 23/11/10 in the matter, there was no application pending to be heard, de-novo, by the Lower Court. Thus, the order for the hearing of the contempt proceedings, de novo was incompetent, ditto the decisions and orders made on 5/5/14, 2/7/14 and 19/11/14, that they were made without jurisdiction, as the Lower Court had become functus officio to hear the application for committal of the Respondents, having earlier ruled on the matter, and made an order on 23/11/10 for 1st and 4th Respondents to show cause on 22/2/2011.
?He relied on Order 26 Rule 15, 16 and 17 of the Federal High Court Rules which spells out what to do on the return date in a contempt proceedings. Counsel said that on 14/11/12, when the
Lower Court made an order for substituted service of the processes, to acquaint the Respondents with the return date of the order to show cause, the Court could only have directed enlargement of time under Rule 15 for further service, without annulling the order to show cause, already made; that in the instant case, having adjourned the matter, severally, from 14/11/12 ? 5/5/14, with abundant evidence that all the Respondents (1st and 4th in particular) were aware of the 5/5/14 date, the Lower Court was by law, bound to proceed with the matter by exercising the powers stated in Order 26 Rule 17. He argued that there is no provision in the Rules to commence the matter de novo; that it is trite law that Rules of Court must be obeyed by parties in litigation, as well as the Court. He relied on JAMB Vs NKEIRUKA (No.1) (2007) ALL FWLR (Pt.381) 1753; DAWODU Vs. AJOSE (2011) ALL FWLR (Pt.580) 1334; ONYALI Vs. OKPALA (2000) FWLR (Pt.3) 495.
?He added that there was no application by any party for the contempt proceedings to be heard de novo, and that in considering that the application should commence de novo, the Lower Court was bound to hear from the
parties before taking any such decision. He relied on the case of Odigwe Vs. JSC Delta State (2011) ALL FWLR (Pt.583) 1918; Lawal Vs. A.G. Kwara State (supra); Amale Vs. Sokoto L. G. (supra). He submitted that for ordering, suo motu, that the contempt proceedings should commence de novo, without calling for input from the parties, Appellant was denied fair hearing. He urged us to resolve the issue one for him (Appellant).
?On Issue 2, Appellant said it is settled law that once a Court delivers judgment or ruling in any matter, it becomes functus officio and cannot revisit, or sit on appeal over its decision. He relied on the case of Federal Polytechnic, Idah Vs Onoja (2013) ALL FWLR (Pt.667)745; Dingyadi Vs INEC (2011) ALL FWLR (Pt.581)1426; Odigwe Vs JSC Delta State (2011) ALL FWLR (Pt.583) 1918. He admitted that a Court can overrule itself, if it reached a decision without jurisdiction, or if the decision is a nullity or was fraudulently obtained. See Skenconsult Nig. Ltd Vs Ukey (1981)1 SC 6; Rabiu Vs Magaji (2011) ALL FWLR (Pt.580)1384; Sanni Vs Agara (2012) ALL FWLR (Pt.612) 1816. Appellant argued that while hearing the substantive case the trial
Court made an order of accelerated hearing and order of substituted service, on 23/5/08, on 1st, 3rd and 4th Respondents; and that after the judgment had been entered on 19/2/09, the Court made another order of substituted service on 14/11/2012 to acquaint the Respondents with the return date for the 1st and 4th Respondents to show cause. Moreover, he said the order on 23/11/2010 for 1st and 4th Respondents to show cause was subsisting, since it had not been set aside. He also said the earlier order of 23/5/2008 for substituted service was also subsisting.
?Appellant said that while it is trite law that a Court can suo motu raise any issue arising from the matter before the Court that will enable the Court determine the issues in controversy before it, the Court must give the parties in the matter opportunity to address it on the issue raised before taking a decision on it; that doing otherwise shall tantamount to a denial of fair hearing; particularly the party affected by the decision of the Court. See Odigwe Vs. JSC Delta State (supra); Lawal Vs. A.G. Kwara State (2011) ALL FWLR (Pt.590)1308; Amale Vs. Sokoto local Govt. (2012) ALL FWLR (Pt. 618) 833;
Gambari Vs Ibrahim (2012) ALL FWLR (Pt.644) 29.
In this case, Appellant said the Court did not call parties to address it and join issues on the competence of the Orders made on 23/5/2008, 23/11/2010 and 14/11/2012 before ruling on the competence of the order made on 14/11/12, and setting it aside, while the same order for substituted service made on 23/5/2008 subsisted as well as the order to show cause made on 23/11/10. Appellant submitted that the requirements for proof of service of Court processes on litigants are quite distinct from those for setting aside the decision of a Court by the same Court; that while the same Court can set aside its decisions, if obtained fraudulently or made without jurisdiction or is a nullity, it can only set aside the service of a process on a litigant, where the said service was not effected in accordance with the law. He relied on Andoakaa Vs. Obot (2013) ALL FWLR (Pt.673) 1967.
?He urged us to hold that the decision of the trial Court on pages 232 ? 233 of the Records of Appeal, which overruled its earlier decision made on 14/11/2012 and set aside the order for substituted service as well as the service of
Forms 48 and 49 on the Respondents, was wrong as there was no cause for it, since no party raised any objection or issue about the earlier orders, and the trial Court did not call on parties to address it on the issues raised, suo motu, before reaching the decision on 19/11/14. He urged us to set aside the said decision.
?On Issue 3, Appellant referred us to the decision of the trial Court on page 231 of the Records, setting aside the order of substituted service on 1st, 3rd and 4th Respondents and ordering personal service of the Forms 48 and 49 on them. He noted that 3rd and 4th Respondents are statutory persons as per Section 153 (1) (2) of the 1999 Constitution, as amended, and argued that the import of the ruling of the trial Court was that the Forms 48 and 49 would have to be served on the President of the Federal Republic of Nigeria, personally, being the chairman of the 3rd Respondent as well as on Dr. Mike Okiro CON (Rtd. IGP), being Chairman and Chief Executive Officer of the 4th Respondent. He argued that Section 148 (1) of the 1999 Constitution empowers the President to assign responsibilities to Ministers, for any business of the Government of
the Federation; that the President had assigned responsibilities to the Minister of Police Affairs, who was served with all the processes, through his subordinates. He relied on the case of Adamu Vs Akukalia (2008) ALL FWLR (Pt.428)352 at 389; IGP Vs Akpan (2008) ALL FWLR (Pt.425) 1782 at 1792, which held that processes of Court meant for Inspector General of Police ought to be served on him, personally, or delivered to a subordinate officer at his office who shall accept service for him. Counsel submitted that the processes in this case were delivered to the subordinates officers in the offices of the Respondents and they accepted service. He referred us to the proofs of service by the Bailiffs on pages 110 ? 114 and 117 of the Records. He noted that 2nd and 4th Respondents were even represented in Court by Counsel (page 201 of the Records) and they filed processes (Counter affidavit) page 214 ? 215 and 177 ? 200 of the Records, respectively. Thus, there was no issue about the competence of the service of the originating processes. He relied on Idi/Osi Local Govt. Vs Aluko (2007) ALL FWLR (Pt.352) 180, on the whole essence of affidavit of
service, that where the party is in Court, that is the best or better proof of service of the process. See also Job Charles Nig Ltd Vs Okonkwo (2002) FWLR (Pt.117)
He said there was also proof of service of the Court processes on the 3rd Respondent, through the office of Minister of Police Affairs (Page 163 of the Records of Appeal), which admitted that the President had approved the implementation of all Rulings in respect of the cases of dismissal/retirement of officers who succeeded in challenging their dismissal/retirement. He said that the 3rd Respondent was also represented at the trial by counsel. He added that the 2nd and 3rd Respondents were only nominal parties in the contempt proceedings and there was no issue of improper service of the processes on them.
?Appellant relied on Panache Communications Ltd Vs. Aikhomu (1994)2 NWLR (Pt.327) 420 on the import of personal service of process. He said that the decision of the trial Court that the Forms 48 and 49 should be affected, personally, on the Respondents was perverse, unrealistic and impracticable particularly on the President of the Federal Republic of Nigeria; that it is an aberration
and a refusal to be bound by the principle of stare decisis and precedents. He relied on Idoniboye ? Obu Vs NNPC (2003) FWLR (Pt.146)959; Olowolaramo Vs Umechukwu (2003) FWLR (Pt.183) 109; Obiuweubi Vs CBN (2011) ALL FWLR (Pt.575) 208.
On Issue 4, Appellant referred us to Ruling of the Court on pages 226 – 228 of the Records, relating to the applicability of the Federal High Court Rules, 2009, to the decision of the Court. He submitted that Order 35 of the Rules of the Lower Court complements the Criminal Procedure Act and Sheriff and Civil Process Act, in pursuit of the fundamental objective of just and expeditious disposition of cases in Court. Thus, he said the findings of the trial Court on the Issue was perverse and not founded on the records of appeal, and had occasioned a miscarriage of justice. He added that the provisions of Order 35 Rule 2 (2) was meant to help the Court exercise its discretion properly in dispensing with personal service of process, where the justice of the case so demands in situations that personal service of process is not practicable or impossible.
?He urged us to resolve this issue to in his favour and allow the
appeal.
Learned Counsel, Taiwo Abidogun Esq. who settled the 2nd Respondent?s brief, on issue one, said it is an established principle of law that the composition of a trial Court, especially in criminal proceedings, must remain constant throughout the trial. Thus, a Judge or Magistrate who heard a case from arraignment to trial and address, must be the one to deliver judgment in the case; that if, for any reason, the composition of the Court is altered, the case cannot continue; that where the judge or magistrate is elevated, removed or by whatever means, ceases to have jurisdiction, he cannot deliver a valid judgment. He relied on Iyela Vs Commissioner of Police (1969) NMLR 130. He said that in such a situation the case would have to commence, de novo, before another judge and the evidence in the previous trial, cannot be used. He relied on Uguru Vs State (2002) FWLR (Pt.103) 330.
?Counsel submitted that in the instant case, the contempt proceedings against the Respondents commenced before a different Judge ? Hon. Justice L. Akanbi, on 2/2/10 who was later transferred to another judicial Division but before the return date of 22/2/2010,
fixed for the 1st and 4th Respondents to show cause, Hon. Justice S.M. Shuaibu had succeeded Justice L. Akanbi. He said that contempt proceedings being quasi criminal in nature, having commenced before a different judge (Akanbi J), the new Judge (Shuaibu.J) was entitled to commence the proceeding, de novo, without address from the parties to that effect; that the record of proceedings generated from the previous trial must not be used and that was to make the trial judge to make informed independent decision (Uguru Vs State (supra)
?Counsel said that the reliance of Appellant on Order 26 Rules 15, 16 and 17 of the Federal High Court (Civil Procedure) Rules, 2009, and claim that the rules did not make provision for commencing trial de novo in cases where the composition of the trial Court is altered, was misleading. He said that that Rules of Court applied to ordinary civil cases, not criminal or quasi criminal proceedings; that it is the Criminal Procedure Act and case law that regulate trials in criminal and quasi criminal proceedings. He said that the cases of JAMB Vs Nkeiruka (No.1) (supra); Dawodu Vs. Ajose (supra), Onyoli Vs Okpala (supra), relied
upon by the Appellant only applied to interlocutory applications in civil proceedings, and did not apply to commencement of trial, de novo, in criminal cases. Also, he said that the case of Odigwe Vs. JSC Delta (supra) do not apply to the situations where composition of the Court is altered and the case needs to start de novo.
?On Issue 2, whether the trial Court was right to set aside its decision made on 14/11/2012 for substituted service, upon raising the issue suo motu and after address by Counsel, 2nd Respondent?s Counsel submitted that the trial Court was right. He said it is well settled that service of Court processes is a condition precedent to the exercise of jurisdiction of Court; that under our adversarial system of jurisprudence, to hear a case, without one of the parties having been served with the necessary processes would render the entire trial a nullity, as service of Court?s process is basic and indispensable to effective adjudication; that failure to serve the required process is a fundamental vice that renders a trial null and void. He relied on Auto Import Vs J.A.A. Adebayo & 2 ors. 12 NSCQR 357 at 362; Agip (Nig) Ltd
Vs. Agip Petroli International & ors (2010)2 SCM 1 at 5; Jide Aladejobi Vs Nigerian Bar Association (2013) 15 NWLR (Pt.1376) 66.
Counsel also argued that a Court of law has inherent power to set aside its own order or judgment which is a complete nullity either by raising the issue suo motu or upon application; that where it is shown that there was a fundamental defect which went to the issue of jurisdiction or competence of the Court, such Court had inherent jurisdiction to regard the order made as a nullity and set it aside. Auto Import Vs Adebayo (supra); Arch Bishop Peter Yariyo Jatau Vs Alhaji Mansur Ahmad & Ors. (2003)13 NSCQR 159 at 162.
?He however argued that in the instant case, parties did not have to join issues before the validity of the orders of substituted service made on 14/11/12 could be raised; that the Court can, at any time, raise any issue of law, suo motu, and ask Counsel to address it on same; that the trial Court was right to raise, suo motu, the issue of the order of substituted service made on 14/11/12 and thereon request to be addressed on it; that the said substituted service was in respect of Forms 48 and 49
initiating contempt proceedings against 1st, 3rd and 4th Respondents, as against the mandatory requirement of personal service. He relied on Alhaji Oyeyinka Vs Aliu Yesufu (1994) 2 NWLR (Pt.328) 617 at 631 and on Enabinive Vs Atambo (1967) NMLR 256 on the 1st step, to endorse the order of the Court word for word; 2nd step, to serve the Form 48 on the contemnor, personally. (Chief John Ikimi Vs. Godwin Omamuli (1995)3 NWLR (PT.383)355 at 360) and 3rd step, to apply for the Form 49, where the contemnor still refused to comply with the Court order, after being served with the Form 48; and 4th step, to serve the Form 49 by a motion on Notice for committal.
?He said that the law does not make any provision for service of the Forms 48 and 49 by substituted means. He relied on Sheriffs and Civil Process Act and the Judgment (Enforcement) Rules as well as the Section 89 of the Criminal Procedure Act. He also relied on the case of Akpan Vs Akpan (1999) 7 NWLR (Pt.462) 620, to say that contempt proceedings is a special proceedings different and distinct from the substantive proceedings that gave rise to it, and the procedure for it must be strictly followed. He
relied on the case of Okoye Vs Centre Point Merchant Bank Ltd (2008) SC 152 at 154 on the need to effect service, personally, on a litigant. He also relied on Bello Vs INEC (2010) 8 NWLR (Pt.1196) 342, on the power of Court to set aside its Order, where the Supreme Court held:
?A Court has an inherent jurisdiction to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, this liable to be set aside.?
He concluded that the trial Court was right to set aside the order of 14/11/2012, having been made without jurisdiction.
?On issue 3, again, Counsel said that the trial Court was right to set aside its previous order of 14/11/12 on 14/11/14, and to order fresh service of all the contempt proceedings, and the same to be effected, personally, on the Respondents; that it is now settled law that where a Court misconceives the case contained in the Records and reaches a conclusion in that misconception, the Court will certainly set aside the judgment which is a product of that
misconception. He relied on Federal Ministry of Health & Anor. Vs Comet Shipping Agencies Ltd (2006)6 SCM 63 at 69; Bello Vs INEC (Supra). He said, again, that the order of substituted service made on 14/11/12 was a nullity, having been made without regard to the mandatory requirement for personal service. He added that, where the law prescribes the procedure for attainment of an act, and the language of the statute is clear and unambiguous, the Court must not depart from such procedure. NCC Vs MTN Nig Comm. Ltd (2008)7 NWLR (Pt.1086) 229. He added that for contempt proceedings, personal service on the contemnor does not mean service on any of their subordinate officers. He said the case of Adamu vs Akukalia (supra) and other cases relied on by the Appellant for that purpose, are in-applicable, and because they are all civil cases and none dealt with criminal or contempt proceedings.
?On issue 4, whether the trial Court was right to hold that Order 6 Rule 8 of the Federal High Court (Civil Procedure) Rules 2009 applies to services of processes in ordinary civil suit and was not intended by the legislature to govern service in contempt proceedings, Counsel
answered in the affirmative. He said that contempt proceedings, being quasi criminal in nature, is a post judgment proceedings, which is comprehensively governed by the Sheriffs and Civil Process Act, the Judgment (Enforcement) Procedure Rules, as well as Criminal Procedure Act; that service of Notices in Form 48 and 49 are governed by the Act ? Order ix, Rules 1- 3 of the Judgment (Enforcement) Rules- Thus he said, the service of notices in contempt proceedings cannot be regulated by the rules of service of ordinary civil suit, under Order 6 Rule 8 of the Federal High Court Rules. He relied on Section 89 of Criminal Procedure Act, on the need to serve criminal process, personally, on the party affected, that the same does not contemplate service by substituted means, under Order 6 Rule 8 of the Federal High Court Rules.
He urged us to resolve the issues against the Appellant and to dismiss the appeal.
?In Appellant?s Reply brief, he drew our attention to the effect that the 2nd Respondent distilled, his issue 1 from grounds 1, 2 and 6 of the Appeal and again used the same ground 1 to distill issue 2; that that amounts to
proliferation of issues. He relied on Dare Vs Gusau (2013) All FWLR (Pt.690)1440 at 1448; Okwuagbala Vs Ikweme (2011) All FWLR (Pt.563)1877.
?He also relied on IGP Vs Akpan (2008) All FWLR (pt.425) 1782 at 17 93 to show that personal service on Inspector General of Police, includes delivering the process to a subordinate officer in his (IGP?s) office, who would accept service for the I.G.P. He added that none of the Respondents was sued in their personal names i.e. the name of the office holder at the time of the accrual of the cause of action. He referred us to Section 91 of the Criminal Procedure Act Cap 41 LFN which provides for service on Government Servants, as follows:
where the person summoned is in the service of government, the Court issuing the summons may send it in duplicate to the head officer of the department in which such person is employed for the purpose of being served on such person, if it shall appear to the Court that it shall be most conveniently so served, and such officer shall there upon cause the summons to be served, and such head officer shall thereupon cause the summons to be serve in
the manner provided in Paragraph (a) of Section 89 of this Act and shall return the duplicate to the Court under his signature? such signature shall be evidence of service.!
Appellant argued that, in compliance with the above, the Court Bailiff had delivered the Court processes to the Head of the Legal Department of the Police for the purpose of service on the 1st Respondent (pages 37 ? 40, 110,114 ? 118 of the Records), and same method of service applied to 2nd, 3rd and 4th Respondents. He also said Order 35 Rule 2 (2) of the Federal High Court Rules 2009, empowers a Court to dispense with personal service, where the Justice of the case so demands, while Rule 3 empowers the Lower Court to make an order of committal, upon its own motion, against a person guilty of contempt of Court.
?Appellant also referred us again, to the Records of Appeal (pages 201 ? 203, 214 ? 215 and 66), where the 4th, 2nd and 1st Respondents, respectively had acknowledged service and/or even took steps in the application, and he submitted that 1st to 4th Respondents were estopped from denying proper service of the originating
processes of the contempt proceedings on them, having, by their counter Affidavits and representations in Court, let the Court and Appellant to believe that the initiating processes were served on them. He relied on Section 169 of the Evidence Act, 2011. He also relied on International Beer & Beverages Industry Ltd Vs Mutunchi Co. Ltd. (2013) All FWLR (Pt.670)1253 at 1284; Abubakar Vs Yar?Adua (2009) All FWLR (Pt.457) 1, to say that a party is not allowed to approbate and reprobate at the same time; that parties are bound by their pleadings and affidavits sworn before the Court. Ajide Vs Kakani (1985)3 NWLR (Pt.12)248; Emegokwe Vs Okadigbo (1975) 4SC 113.
Appellant added that the essence of service of process is to give adequate notice to the party concerned, of what is sought against him, so that he may defend, if he can; that it is for this reason that the Court dispenses with challenges to service, where a party is in Court or files a defence to the process served on him. He relied again on Idi/Osi Local Govt. Vs Aluko (supra); Chiazor Vs Tukur (2007) All FWLR (pt.354) 394 at 406.
?On the need for a case to commence de novo so that a
judge can form his perception in the matter, Appellant said this was not necessary in this case, which was fought on affidavit evidence and did not require the observation of the demeanour of witnesses; that after the Previous Judge, Akanbi, J., had on 23/11/2010 ruled on the matter, another judge (S.M. Shuaibu J), could not over-rule it; that the new judge could only use the affidavit or fresh affidavit before the Court to reach its conclusion! Thus, the case of Uguru Vs State (supra) did not apply in this case.
Again, he urged us to allow the appeal
?RESOLUTION OF THE ISSUES
Appellant was right when he observed that the 2nd Respondent committed error of proliferation of issues, when he split ground one of the appeal to distill two issues for the determination of the appeal. Of course, that cannot be allowed, as the law is trite, that a party cannot formulate more than one issue for determination of appeal from a single ground of appeal, though he can combine two or more grounds of appeal to generate an issue for determination of the Appeal. Moreover, once a party has distilled
an issue from a given ground of appeal, or joined the ground with other ground(s) to distill an issue for determination of the appeal, that ground(s) is no longer available to combine with another or other grounds to distill another issue for determination of the appeal. See the case of Anodu Vs Commandant PC Maiduguri (2009) 15 NWLR (pt.1163) 75; SPDC Vs Abia State (2015)3 CAR 433; Barr. Orha Jev. and Anor. Vs Sekan Dzua Iyortyyom & Ors (2014) NWLR (pt.1428) 578 at 608 and a recent decision of this Court in the case of Rev. John Iroganachi Vs Mr. Okechukwu Madubuko & Anor. CA/PH/270/2006, delivered on 26/2/16 (pages 5 and 6 thereof).
?However, the error in the formulation of the issues by the Respondent becomes immaterial, where the appeal is not considered on the issues distilled by the Respondent, but by the Appellant. I think this appeal is better considered on the Issues distilled by Appellant, which I also think should be reframed, as follows:
(1) Was the learned trial judge right when he made an order suo motu on 19/11/14 setting aside all originating processes in the contempt Proceedings (including Forms 48 and 49) and
ordering the processes to be served afresh on all the Respondents, personally, considering the existing ruling/order of Court made on 23/11/2010 in the matter for the Respondents to appear in Court to show cause?
(2) Was the trial Court right in its order of 19/11/14 setting aside the order for substituted service made on 14/11/12 for service of all processes in this matter on the 1st, 3rd and 4th Respondents, through the Commissioner of Police, Imo State, and ordering that they be served afresh with the processes (including Forms 48 and 49) and for the contempt proceedings to commence, de novo, in view of the appearances/steps taken already in the matter by the Respondents?
(3) Was it necessary to order the service of the originating processes (Forms 48 and 49) again on the Respondents, personally, in the circumstances of this case, and for the contempt proceedings to commence, de novo?
?I shall consider the issues 2 and 3 (above) together, but, first, the issue 1.
?The history and story of this case is rather sad and unfortunate, as it is all about the claim for wrongful
retirement of the Appellant filed in 1997, and which ended, successfully, in 2009. It is also about the inept and scandalous method of enforcement of decisions/orders of Court in this country, especially, where the government or agency of government is the judgment debtor, on whom the judgment is to be enforced.
?It is on record and indisputable that the judgment of 19/2/2009, re-instating the Appellant and granting him reliefs is still extant and has not been appealed against. In fact, there are pieces of evidence that the judgment had been accepted by the Respondents, as per the disposition of government in a letter issued from the Presidency, approving ?the implementation of all Court Rulings in respect of dismissed/retired officers in the Nigeria Police Force, who had successfully, challenged their dismissal or retirement in Court See the letter Ref.PSC/Pol/C/1128/27 of 19/6/2005, and page 163 of the Records. See also pages 105 ? 106 of the Records of appeal, where the Appellant (as judgment creditor/Applicant reported to the trial Court (Shuaibu J), as follows:
?I am delighted to inform the
Honourable Court that some appreciable efforts have been made since the last adjournment date to resolve this matter and avoid the need to proceed with the contempt proceedings against the judgment Debtors/Respondents. The Judgment Creditor/applicant had a meeting with the 4th Judgment Debtor/Respondent i.e. the Police Service Commission on 27th February 2014. Judging from the discussion at the meeting and the caliber of members of the Commission as presently constituted, I am encourage (sic) that the matter is capable of being amicably resolved. In the circumstances therefore, I shall crave for indulgence of the Court for a further adjournment of the case to enable parties report a conclusive progress on the matter. The learned Counsel to the 4th Judgment Debtor/Respondent requested me to inform the Court of this position and also to explain his absence to the Honourable Court
?Reacting to the above, learned Counsel for the 2nd Judgment Debtor/Respondent, S.D.U, Amon Esq (Dep. Director FMOJ) with C. Njoku Esq (Principal State Counsel, FMOJ), said:
?I confirm the position as true. Indeed, it has being
(sic) the stand of the 2nd judgment Debtor/Respondent i.e. the Honourable Attorney-General of the Federation to explore amicable solution of the issue pose (sic) by this proceedings as the record of the Court in the matter disclose.?
The case was thereupon adjourned to 5/5/14
?For a conclusive report on compliance with the judgment of the Court, failing which this Court shall proceed with the hearing of the contempt proceedings.? See page 107 of the Records.
?On the 5/5/14, Appellant and the Counsel for 2nd Respondent, S.D.U. Amon Esq, were in Court. The Appellant told the Court that there was no further development on the matter, inspite of several correspondence to the judgment Debtors/Respondents on the matter.
?Amon Esq concurred, and added:
?I, however, wish to bring to the attention of the Court that sequel to the correspondent (sic) by the judgment creditor/Applicant, the 2nd Judgment Debtor/Respondent had written a letter to the Police Service Commission on the matter and the response of the Commission is being awaited.? (Page 109
of the Records)
The trial Court (Shuaibu J.) ruled:
?This matter comes up for a report on compliance with the judgment of this Court, by the judgment Debtor/Respondents. The Court delivered at the last adjourned date that if there is failure to comply, the judgment creditor/Applicant shall be at liberty to proceed with the contempt proceedings to ensure compliance. Contempt proceedings is a quasi-criminal proceedings. It has to start here before me notwithstanding there are some steps (sic) had been taken in the matter before this Court differently constituted. Consequently, this matter stands adjourned to the 2nd July 2014 for the continuation of proceedings against judgment Debtors/Respondents to ensure compliance.? (Page 109 of the Records).
?The above remarks of the learned trial judge, appear to have set the stage for the confusion that followed, as per the unfortunate position of the trial judge ? Shuaibu J.
?On 2/7/2014, the judgment Debtors/Respondents, who were apprehensive of possible sanction by the Court, tried to impress on the trial Court, how much each had tried to give
effect to the subsisting judgment of Court, delivered on 19/11/2009.
B. Daha Esq Ass. (Director Legal Services) for 4th Judgment/Debtor, Respondent, said:
?Subsequent to the adjournment of this case, the 4th judgment Debtor/Respondent has again written to the Inspector-General of Police. The letter is dated 17th March 2014, and served on the Inspector-General of Police, the 1st Judgment Debtor/Respondent same as a copy of the letter has also been served on the 2nd Judgment Debtor Respondent, as well as the Judgment Creditor/Applicant. We have filed a counter-Affidavit this morning, exhibiting all our efforts to show that we have done our part in the execution of the judgment in this case.? (See page 201-202 of the Records).
Amon Esq, Counsel for the 2nd Judgment Debtor/Respondent, said:
?We have written a letter on this issue since the last adjourned date. I have a copy of the letter with me. The letter was addressed to the Police Service Commission, the 4th Judgment Debt/Respondent.? (page 202 of the Records).
?Appellant then told the Court:<br< p=””
</br<
?We have filed our (sic) served forms 48 and 49 on the judgment Debtors/Respondents. The service was effected on the judgment/Debtors/Respondents by the officer of Court. In fact, the Court had made an order for substituted service on the judgment Debtors/Respondents by substituted means on 14th November, 2012.?
?At that point, the learned trial Judge interjected:
?In contempt proceedings, personal service of forms 48 and 49 on alleged, contemnor is required, as contempt proceedings is a quasi-criminal proceedings. Notwithstanding, the order of this Court made on the 14th day of November, 2012 by which an order for substituted service of all processes in this proceeding was made. I consider it necessary for the learned Counsel for the judgment creditor/Applicant to satisfy the Court on the issue, since the matter had come before me and was decided upon by this Court differently constituted. It is necessary, in my view, to satisfy myself on the point in relation to Forms 48 and 49, before taking any further steps in the contempt proceedings. Accordingly, the learned Counsel to the judgment
creditor/Applicant is hereby given five days to file a written address on the matter and the case is adjourned to 9th July for hearing? Pages 202 ? 203 of the Records.
?It does not appear the trial Court was interested in any address by the Respondents on the issue as it gave them no time or option to file their address. And, because, the issue was raised by the Court, suo motu, without being prompted by the Respondents (who appeared surprised by the stance of the Court), it was obvious, the trial Court had already made up its mind on the issue, no matter what address, the Judgment Creditor/Applicant was to come up with. And so, it was not a surprise to any studious mind, when the trial Court on 19/11/14, held:
?In the final analysis, I hereby order, based on statutory Provisions and case law that personal service of Forms 48 and 49 be effected on the alleged contemnors in this proceedings. Service shall be effected on the Inspector General of Police, personally, and so also the Attorney- General of the Federation. As for the 3rd and the 4th Judgment Debtors/Respondents i.e. the Nigeria Police Council and
the Police Service Commission, Service of forms 48 and 49 shall be effected on the Chairmen (sic) and Chief Executive Officers of the Council and Commission, respectively.
Again, based on statutory provisions and case law, I find that the order/made for substituted service of all processes in this proceedings, in so far as it is interpreted to include the Service of Forms 48 and 49 is irregular and void? Consequently, I hereby set aside the order for substituted service that I made on the 14th November 2012, as well as service effected on Forms 48 and 49 on the alleged contemnors pursuant to that Order? (pages 232 ? 233 of the Records of Appeal).
?I think that was a very unfortunate and erroneous decision, in the circumstances of this case, whereof the issues relating to service of the contempt processes, including Forms 48 and 49, was never an issue, and was never raised by any of the Respondents, and had long been litigated upon and concluded by a competent Court of co-ordinate jurisdiction, as per the Ruling of Akanbi J, dated 23/11/2010, wherein, the Respondents, having been served with
the originating processes in the contempt proceedings, (and they had taken steps in the case and/or were represented by Counsel), the trial Court had ordered them to appear in Court to show cause, why they should not be sent to prison for disobeying Court Order/Judgment of 19/11/2009. See pages 80 ? 81 of the Records of Appeal and the Orders of Court thereof on page 82 ? 83.
?In the said Ruling, Akanbi J had said:
?In this Ruling, the judgment creditor/Applicant prays for an order of the Court committing the 1st, 3rd and 4th Respondents to prison for disobeying the order of the Court made on the 19th day of February, 2009, directing the reinstatement of the judgment creditor/Applicant to his rank in the Nigeria Police Force. Before this application in Form 49 the respondents had been served the Form 48. Inspite of the service of Form 48 on them, they refused neglected and/or failed to comply with the aforesaid order of the Court. This matter was adjourned several times. On each adjournment specific orders were made for service of fresh hearing notices on the respondents with the view of making them appears in Court to
answer several allegations contained in the affidavit in support of the application. Regrettably, however, the respondents neither filed any Counter Affidavit nor appear (sic) in Court in defence of same. I have carefully read the affidavit in support of the application as well as the address of learned Counsel for the applicant. I am satisfied that the application was well made.
Accordingly, an order is hereby further made directing the respondents to appear in Court on the 22nd February, 2011 to show cause why they shall (sic) not be committed to prison for disobeying the order of the Court made on 19th February, 2009, compelling them to reinstate the judgment creditor/Applicant to his appropriate rank in the Nigerian (sic) Police Force.? (Page 80 ? 81 of the Records)
?I think that decision had settled the issues relating to the originating processes of the contempt proceedings and the service of the same on the Respondents as required by law. There is no appeal against that decision, which specifically indicated that the trial Court was satisfied that the processes, including Forms 48 and 49 had
been served on the Respondents but they refused, neglected and/or failed to comply with the aforesaid order of the Court. The law is trite that, a finding of Court not appealed against remains conclusive and binding.
Nnaji Vs Alozie (2014) LPELR ? 24014 CA, Ojeabuo Vs FRN (2014) LPELR 22555; Amale Vs Sokoto L.G. (2012)5 NWLR (Pt.1292)181; Igbokwe Vs Edom & Ors (2015)8 CAR 224.
?
Because, the decision and order of the trial Court made by Akanbi J. on 23/11/2010 remains extant and binding on the issue of service of the contempt processes, particularly Forms 48 and 49, to originate the contempt proceeding, the learned trial judge (Shuaibu J.), in my opinion, was in grave error to assume power to set aside the service of the Forms 48 and 49 on the Respondents, and to order fresh service of the same on the Respondents, as if he was sitting on appeal against the extant order of the Court, presided over by Akanbi J.
?Incidentally, there was no issue raised by the Respondents on the status of the originating processes earlier served on them, to which they had reacted by filing counter affidavit/or appearing, through Counsel, to explain their
roles in the matter relating to the disobedience of the judgment of the Court. The trial Court, unfortunately took upon itself to raise the issue of service of the processes, suo motu and tasked the Applicant to satisfy it that the processes were properly served. The trial Court did not bother the Respondents to address it, because it appeared to have made up its mind on the matter, on behalf of the Respondents!
?I think that was wrong, as it amounted to the trial Court descending into the arena of conflict and taking up itself to do a case for the Respondents, unsolicited. Meanwhile, the Respondents, particularly the 2nd and 4th Respondents, through their Counsel had told the trial Court on 2/7/14, that they had written letters to the 1st Respondent and instructed on how to comply with the earlier judgment of the Court and had also filed counter affidavit, exhibiting their effort on what they had done towards the execution of the judgment of the Court. Because they were at the stage of showing cause why they should not be punished, for disobeying the Court, they (2nd and 4th Respondents) were trying to exhonorate themselves, while also placing the blame
on the 1st Respondent on whom they claimed they were waiting for, to act. They appeared not to have expected the unfortunate decision of the trial Court which, completely, reversed the progress made so far in the case and set the case back to the starting block ? to originate the contempt process afresh by filing the statutory forms 48 and 49 and serving them on the Respondents, personally, and for the case to commence de no vo!
We have held, severally, that:
A judge must not descend into the arena of conflict in a trial to generate evidence or facts not canvassed or adduced by witness (es), or apparent on the face of the Records before him, to decide a case.? See Obi Vs A.G. Imo State (2014) LPELR ? 24280 CA; Ayoade Vs Spring Bank Plc (2014)4 NWLR (1396) 93 at 128; Ajakaiye Vs The State (2015)5 WRN 64; Ojo Vs Oseni & Anor (1987) LPELR ? 20876 CA.
?It does not appear the trial judge was fully conscious of the wrong he was embarking on, when he said:
?Notwithstanding the order of this Court made on the 14th day of November, 2012 by which an order for substituted service of all
processes in this proceeding was made, I consider it necessary for the learned Counsel for the judgment Credit/Applicant to satisfy the Court on the issue since the matter had come before me and was decided upon by this Court differently constituted. It is necessary, in my view to satisfy myself on the point in relation to forms 48 and 49, before taking any further steps in the contempt proceedings?
If he remembered that the matter had earlier come before him on 14/11/2012 and he made an order exparte for all processes in the case to be served on the Respondents by substituted means, and that this matter ?was decided upon by this Court differently constituted?, why did he embark on the questionable return trip ?to satisfy himself on the point (of service) in relation to Forms 48 and 49, before taking any further steps in the contempt proceedings
?Of course, those matters had been settled by valid orders of Court (which he referred as being differently constituted) since 23/11/2010 and that decision was extant, and the trial Court being funtus officio, therein, cannot exhume, suo
motu what had been long-litigated upon and settled, and seek to resolve, again. I think the learned trial judge, with utmost respect, was in grave misapprehension of the law, to think that the contempt processes (Forms 48 and 49) earlier originated and duly served, on the Respondents, as per the Ruling of 23/11/10, should be originated again or afresh and served on the Respondents, personally, before he could take further steps in the proceedings simply because contempt proceedings is a quasi-criminal case.
Even in a purely criminal case, once a charge is filed and served on an accused person and he is arraigned in Court, the fact that the accused is to be tried before another judge, in which situation the trial is to commence, denovo, does not mean that the earlier service of the charge and processes on him must be set aside by the new judge and order made for issuance of fresh charge and service of same, personally, on the accused person. Of course, the charge and service of same on the accused person remains valid, though he is expected to enter fresh plea, before the new judge.
?In the case of Nobis-Elendu Vs INEC & Ors (2015) LPELR
? 25127 (SC) it was held:
?The position of the law is that a Court is not entitled to raise an issue and decide on it without affording the parties opportunity to be heard. This is because in doing so the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See Kuti vs Balogun (1978) 1 SC 53 at 60; Obawole Vs Williams (1996)10 NWLR (Pt.477) 146; Stirling Civil Engr. Nig. Ltd Vs Yahaya (2005)11 NWLR (Pt.935) 181; Omokuwajo Vs FRN (2013)9 NWLR (Pt.1359) 300; Onimiyi Vs Alabi (2015) LPELR ? SC 41/2004.
An appellate Court is also not entitled to raise an issue not raised by either of the parties at the trial Court or an appeal and base its decision on thereon, without affording the parties an opportunity to be heard. The Court, being an impartial arbiter, must not be seen to be making a case for one of the parties.?
?Afterall, the essence of issuing Forms 48 and 49 in contempt proceedings is to inform and warn the person in disobedience of Court order (contemnor) of the consequences of such disobedience and afford him the
opportunity to correct himself. See the case of Okwueze Vs Ejiofor (2000)15 NWLR (Pt.690) 389 at 407:
?The issuance of the two Forms i.e. Form 48 and 49, by the Registrar of the Court is sustained desire to remind the person against whom the two Forms were issued of two things. Firstly, that a Court order exists which the party was commanded to obey. Secondly, by Form 49, such a person is notified that proceedings to enforce the order of the Court would therefore be commenced against him. That is the essence of issuance of the two Forms.?
Thus, where a party served with the said process of Court appears in Court, either in person or through a Counsel, and or takes steps, in pursuance of the contempt proceedings, before the Court, and does not complain about the service of the Process(es) on him, there is no basis, whatsoever, in my opinion, for the trial Court to raise issue, suo motu, as to whether or not the processes commencing the contempt proceedings were properly issued and/or served.
?It became more absurd, in my view, for the trial Court to go further to set aside the said processes and order issuance
of fresh processes, to commence the contempt proceedings, denovo. As was stated in that case of Okwueze Vs Ejiofor (2000) LPELR 5803 (CA); (2000)15 NWLR (Pt.690) 389.
?A Court must dutifully refrain from giving absurd effect to statutes by the manner of its construction of same. See Garba Vs FCSC (1988)1 NWRL (pt.7) 499; Kanada Vs Govt. of Kaduna State (1986)4 NWLR (Pt.35).
?With the above findings, I do not think it is necessary to further consider whether it was proper to order fresh service of forms 48 and 49 on the Respondents, personally. But I should add that service of contempt proceedings, being quasi-criminal in nature has to be served, personally, on the contemnor. See FCDA Vs Agary (2010) 14 NWLR (pt.1213) 377 at 391 ? 392; Mil. Gov. of Kwara State Vs Afolabi (1991) 6 NWLR (pt.196) 212; see also the recent decision of this Court in ONOWU Vs OGBOKO & Ors CA/OW/104/2009, delivered on 6/1/16. But, that is, where the contemnor is a biological person. Where the contemnor is an institution or statutory person or office, I think it will be naive to expect personal service in the
circumstance, as the same should be effected on the officer or responsible head or person in the office meant to be served, and the same receives it for the institution or officer-incharge. See the case of IGP Vs Akpan (2008) ALL FWLR (pt.425) 1782 at 1793, where service on a subordinate officer who received for the Inspector General of Police was deemed, satisfactory.
I therefore, resolve this issue for the Appellant, that the trial Court did not have power, as it claimed, on 19/11/14, to set aside the contempt proceedings, including Forms 48 and 49, earlier issued and served on the Respondents, upon which the contempt proceedings commenced and the Lower Court, per the previous judge, held on 23/11/10 that Respondents were dully served, and ordered them to appear to show cause. The Lower Court also lacked power, in the circumstances, to order for fresh issuance of the said contempt processes, to commence the contempt processes, denovo.
?Was the trial Court right to set aside its ex-parte order, made on 14/11/12, for service of all processes in this matter by substituted means on the 1st, 3rd, and 4th Respondents (through the Commissioner of Police)
and was it proper to order fresh service of the contempt processes on the Respondents, personally, and for the contempt proceedings to commence de novo?
I think the pertinent points in the issues 2 and 3 have already been discussed and considered in the above issue 1, and they are hereby adopted. What I think remains to be considered is the substance of the order of the Lower Court made on 14/11/12, relating to the ex-parte application ?for substituted service of all processes in the matter on the Respondents.? What were the ?all processes in this matter? which the Court ordered to be served on the 1st, 3rd, and 4th Respondents by substituted means?
?Appellant did produce the Exparte order of the Lower Court, made by Shuaibu J on pages 98 ? 99 of the Records. The substance of the application (which was not produced in the Records) appeared to be about the mode of service of 1st, 3rd and 4th Respondents, with subsequent processes of the Court, since the Appellant appeared to have had difficulties serving them (1st, 3rd and 4th Respondents), separately, as per the earlier addresses of service disclosed in the earlier Court
processes. Appellant therefore, sought ?an order of substituted service of all processes in this matter on the 1st 3rd and 4th Respondents, by delivering same to the Commissioner of Police, State Headquarter, Owerri, and deeming same as proper service?
That was the application that was granted on 14/11/2012 by trial Court, presided over by Shuaibu J. when he said:
?Upon Reading through the said motion and affidavit in support sworn to by Evaristus D. Egbabu, Christian, male adult, a Police Officer, residing at 3A Road 18, Town 3 Federal Housing Estate, New Owerri, Imo State and Nigerian Citizen, at the Federal High Court Registry, Owerri ? It is hereby ordered as follows:
(1) An order is hereby made granting the judgment Creditor/Applicant leave to serve, by substituted means, all processes in this matter on the Judgment Debtors, to wit:
1st, 3rd and 4th Judgment
Debtors/Respondents;
C/o the Commissioner of Police<br< p=””
</br<
The Nigeria Police,
State headquarters
Owerri
Imo State
2nd Judgment Debtor/Respondent;
c/o Federal Ministry of Justice
Federal Secretariat Complex
Independence layout,
Enugu
Enugu State
(2) This case states (sic) adjourned to the 10th day of December 2012, for hearing.?
It should be clear, from the above, that the exparte order for substituted service of the 1st, 3rd and 4th Respondents, was not one to originate the contempt proceedings, which had already been done and concluded, as per the Ruling of 23/11/2010.
?The previous processes had carried the following addresses for service on the Respondents:
1st Judgment Debtor/Respondent
The Nigeria Police Force Headquarters
Louis Edet House,
Abuja
2nd Judgment Debtor/Respondent:
Ministry of Justice, Abuja
3rd Judgment Debtor/Respondent:
The Presidency, Three Arms Zone, Abuja
4th Judgment Debtor/Respondent:
Federal Secretariat Complex, Abuja
See page 86 of the Records (for instance)
Thus, from the grant of the ex-parte application, Appellant was no longer to service the 1st, 3rd and 4th Respondents, through the above addressed, but through the Commissioner of Police, The Nigeria Police, State?Headquarters Owerri. (See page 209 and 213 of the Records carrying the new addresses of service on Respondents).
?It is?therefore?strange, in my opinion, that the very trial Court, which granted the exparte application on 14/11/12, for alternative (substituted) place of service of the subsequent processes on the 1st, 3rd and 4th Respondents, suddenly, on it own motion, decided to fault itself and rather read extraneous meaning into the simple order, inferring that the
same was an order to serve originating Contempt processes, namely, Forms 48 and 49, by substituted means.?The trial judge said, on page 230 ? 231 of the Records, as follows:
?The law does not make provision for the service of Forms 48 and 49 on the contemnor, substitutedly. If the legistature had intended such mode of service, it would have said so as is the case for service of processes in ordinary civil suits. The law is that, where a Law prescribes a procedure to be followed for redress in an alleged contempt or disobedience of a Court order, where also the language used in the statute is clear and unambiguous, the Court will not allow any departure from such procedure. See the case of Nwabueze Vs Nwora (2005) 1 NWLR (Pt.926)7
?I think, the above was a clear case of misunderstanding or misapprehension of facts, as such the beautiful principles of law and authorities set out, above, did not appear to apply to the situation the trial Court was analyzing, to justify the invocation of the case of Bello Vs INEC (2010)8 NWLR (Pt.1196) 342, to set aside the order for substitute service made by the trial
order for substitute service made by the trial on 14/11/12, to service. 1st, 3rd and 4th Respondents with subsequent processes in the case through the Commissioner of Police, Imo State, Owerri.
Certainly, the Forms 48 and 49, were not effected on the Respondents by means of that order. Pages 37, 42 (for instance) carried the affidavit of service of the contempt proceedings (Form 48) on the 1st and 4th Respondents. And there was evidence the 4th Respondent had written to the Appellant, reinstating him to the service and had copied the letter to the 1st Respondent, for necessary action. See paragraph 3 (b) of 4th Respondents Counter affidavit filed on 2/7/14 on page 177 of the Records of Appeal. Paragraph 3 (i) of the Counter affidavit said:
?That based on the outcome of the meeting, the 4th Respondent has issued another letter to the 1st Respondent to re-instate the Applicant “without loss of seniority? as ordered by the Court. Attached is a copy as Exhibit C.?
?All that, go to show that the Respondents had been served with the originating processes of the contempt proceedings (Forms 48 and 49) before
the trial Court made the order of 14/11/12 to serve 1st, 3rd and 4th Respondents, through the Commissioner of Police, Imo State, Owerri.
?We have stated several times, that the essence of filing of affidavit of service in a suit is to certify and ascertain that the Party had been served with the process of Court, and that where the party is Court and/or represented by Counsel and has taken steps in the case, by filing process to defend the suit, there cannot be any valid complaint or question again, as to whether or not the party had been duly served with the process(es) of Court. See the case of SPDC Vs Registrar of Business Premises, Abia State (2015) LPELR ? 24285 (CA), (2015)3 CAR, where this Court observed as follows:
?I am always bothered about the level of mockery the law would be subjected, when a party, who has been served with the processes of Court, comes to the same Court to seek nullification of the service on him of the processes, alleging improper issuance or service of the process. See Oseni Vs Oige & Anor (2014) LPELR ? 22919(CA); Khalid Vs Al-Nasim Travels & Tours (2014) LPELR
? 22331.
I know that in appropriate circumstances there can be genuine complaint about issuance of service of process that goes to the root of the case as shown in the case Kida Vs Ogunmola (2006)All FWLR (Pt.327) 402 at 406, wherein it was held that failure to commence the originating process, validly, affected the writ and robbed the Court of jurisdiction, as the processes lacked competence. But that could not said of the case, of which the originating process was duly issued, with the leave of the trial Court and served on the Appellant
?See also Oseni Vs Ologe (2014) LPELR ? 22919 (CA) where this Court said, reechoing the observation in Zaria Local Govt. Council & Anor Vs Kwanstan: CA/K/151/2009, delivered on 17/1/14:
.. for me, it sounds ridiculous and it beats every sense of logic and sound reasoning, for a man, who has been served with the process of Court and for which he responded by entering his appearance and filing processes in his defence to contest the case and at the end of the case, to turn round and seek to nullify the judgment, on the grounds
that there was no due service of the originating process on him? That is pandering to ridiculous level, the use of technicalities to frustrate justice! Having come to Court and taken part in the proceedings, without complaint of any sort, I believe the Appellants cannot, in good conscience, raise any issue of non compliance with Order 2 Rule 1 (4) of the Fundament Rights (Enforcement Procedure) Rules, 1979, since their appearance and taking part in the case were conclusive evidence of compliance with the law relating to service. After all, the purpose of that provision of the law was to ensure that a respondent is dully served with the process of Court, before a Court can hear the applicant.?
In this case at hand, thankfully, the Respondents never complained of not being properly served, but the trial Court unsolicited, took upon itself to truncate the case, sending the Appellant back to the starting line, to file the originating processes to commence the contempt proceedings, denovo.
With due respect to the learned trial judge, that was a wrong and undue interference with the progress of the case.
?A contempt
proceedings is meant to call one in disobedience to Court judgment, to order and to protect the integrity and sanctity of the Court, and ensure effective administration of justice. See Alechenu Vs A.G. Benue State (2011) LPELR – ; Nwawka Vs Adikamkwu (2015) All FWLR (Pt. 804) 2064; Ogunleye Vs Aina (2012) 28 WRN 41. Every Court should therefore be alert and keen in jealously warding off every affront to its authority and integrity, while also being careful in the exercise of such powers, to avoid being primed by base spirit of vendata and/or display of power. Surprisingly, the trial Court rather did the opposite.
?In that case of Nwawka Vs Adikamkwu (2015) All FWLR (Pt.804) 2064, it was held:
any judgment made by a Court deserves and demands obedience whether or not the judgment was well founded, and nobody must be allowed to stand in the way of translating the decision of a Court. The power to punish for contempt is also constitutional and the Courts are expected to guard their powers, integrity and decisions, jealously, ready to punish any act of disobedience, or conduct that puts a Court or its decision
in derision, or poses an affront to its being obeyed or respected.
I therefore, allow this appeal being meritorious and set aside the decision of the learned trial Court, made on 19/11/14, which set aside the contempt processes and ordered for filing of fresh processes to commence the contempt proceeding, denovo. I also set aside the order setting aside the order of substituted service of processes on the 1st, 3rd and 4th Respondents, through the Commissioner of Police, Nigeria Police Force, Imo State, State Headquarters. Owerri, granted on 14/11/2012.
The trial Court shall therefore hear the contempt proceeding as per the Ruling of the trial Court, reached on 23/11/2010, for the Respondents to show cause why they should not be sent to Prisons for disobeying the judgment of Court in the main suit delivered on 19/2/2009, if Respondents still live in disobedience of the Judgment.
Parties shall bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read before now the judgment of my learned brother I. G. Mbaba, JCA, just delivered. I agree with the reasoning and
conclusion of my learned brother therein arrived at that the appeal is meritorious. It is also allowed by me.
The judgment of the learned trial Court, delivered on 19th November 2014 which set aside the contempt processes and ordered for filing of fresh processes to commence the contempt proceeding, de novo is hereby set aside.
I endorse the consequential order as to Costs.
PETER OLABISI IGE, J.C.A.: I have the privilege of reading in advance the erudite judgment delivered by my Lord, MBABA, JCA.
?I agree with the conclusion reached in the judgment.
Appearances
APPEARED IN PERSONFor Appellant
AND
1ST RESPONDENT UNREPRESENTED
TAIWO ABIDOGUN, ESQ. FOR 2ND RESPONDENT
3RD RESPONDENT UNREPRESENTED
4TH RESPONDENT UNREPRESENTEDFor Respondent
