FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ANOR. V. DR. TIMIEBI AUGUSTA KORIPAMO-AGARY
(2010)LCN/3797(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of May, 2010
CA/A/5/2008
RATIO
COURT: CONTEMPT; NATURE OF CONTEMPT
It is trite law that contempt of court is an office sui generis. An application for committal for any disobedience of an order of court is a very serious matter as it involves in most cases an exceptional interference with the liberty of a subject and therefore when any antecedent process has to be put in motion, every prescribed step and rule however technical should be carefully taken, observed and insisted upon. Any irregularity in the procedure for committal is a fundamental vice which vitiates the entire application. Per Edozie J.C.A in Atser v. Gachi (1997) 6 NWLR (pt.510) 609 at 624; Gordon v. Gordon (1946) 1 All E.R. 247 at 250; Boyo v. The State (1970) 1 All NLR 318 at 319-320; Okuosa v. Okwuosa (1973) 3 ECSLR (pt. 1) 75.
“Since a proceeding to commit a person for contempt is a criminal or quasi-criminal proceeding, every procedural step – the legal modus proseqiandi must, ‘ex necessitate’, to be followed, strictly and be strictly complied with.”
That is the exotic picture painted by Nsofor, J,C,A in Bonnie v. Gold (1996) 8 NWLR (pt. 465) 230 at 238 and that description is what is, in effect the law. PER MARY U. PETER-ODILI, J.C.A.
PROCEDURE: EFFECT OF FAILURE TO SERVE PROCESS
For emphasis, failure to serve process where service is required is a failure which goes to the root of jurisdiction of the court. Any proceedings in such a case is a nullity and a party against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the order has not been fulfilled.
Atser v. Gachi (1997) 6 NWLR (pt. 510) 609; Odita v. Okwudinma (1969) 1 All NLR 228; Union Beverages Ltd. v. Adamite (1990) 7 NWLR (pt. 162) 348; Scott Emuakpor v. Ukarba (1975) 12 SC 41. PER MARY U. PETER-ODILI, J.C.A.
WORDS AND PHRASES: MEANING OF CONDITION
‘Condition’ is a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right. A true condition is where the event on which the existence of the right depends is in the future and uncertain. A ‘condition precedent’ is one which delays the vesting of a right until the happening of an event. Per Uwais, CJN in Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536 a6 562. PER MARY U. PETER-ODILI, J.C.A.
WORDS AND PHRASES: MEANING OF LIS PENDENS
‘Lis pendens’ simply means a pending suit, and as stated by the Supreme Court “The doctrine of Lis pendens prevents the effective transfer of rights in any property which is the subject-matter of an action pending in court. In its application, the doctrine is not founded on the equitable doctrine of notice, actual or constructive. It is based on the principle that the law does not allow to litigant parties or give to them doing the currency of the litigation involving any property, rights in such property in dispute so as to prejudice any of the litigating parties. This is good law. For it would be plainly impossible that any action or suit could be brought to a successful termination if alienations pendent lite were allowed to prevail”.
per Katsina – Alu J.S.C (as he then was) in Olori Motors Co. Ltd. v. U.B.N Plc. (2006) 10 NWLR (pt. 989) 586 at 617; Ogundani v. Araba (1978) 6-7 SC 55; Osagie v. Oyeyinka (1978) 3 NWLR (pt. 59) 144; Dan-Jumbo v. Dan-Jumbo (1999) 11 NWLR (pt. 627) 445. PER MARY U. PETER-ODILI, J.C.A.
JUSTICES
HON. JUSTICE MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
HON. JUSTICE JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HON. JUSTICE ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. HON. MINISTER, FEDERAL CAPITAL TERRITORY – Appellant(s)
AND
DR. TIMIEBI AUGUSTA KORIPAMO-AGARY – Respondent(s)
MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): The Appellants herein were the Defendants at the trial Court where the Respondent as Plaintiff instituted the suit subject of this appeal through a Writ of summons and Statement of Claim filed on 14th February, 2007 in the High Court of the Federal Capital Territory of Nigeria sitting at Abuja, Coram: The Honourable Justice M.N. Oniyangi seeking the six (6) reliefs endorsed in paragraph 31(i) – (vi) of the Statement of Claim as follows:-
STATEMENT OF RELEVANT FACTS:
1. The Respondent (as Plaintiff) commenced Suit No. FCT/HC/CV/461/2007 by Writ of summons and statement of Claim filed on 14th February, 2007 against the present Appellants (as Defendants) in the High Court of the Federal Capital Territory of Nigeria sitting at Abuja (Coram: The Honourable Justice, M.N. Oniyangi) seeking the 6 reliefs endorsed in Paragraph 31 (i)-(vi) of her Statement of Claim in terms outlined therein.
2. Simultaneously, with the filing of the Writ of Summons and Statement of Claim on 14th February, 2007, the Respondent (as Plaintiff) in the Lower Court also applied for interim injunctive orders in the following regard by filing a Motion Ex-Parte. The Plaintiff had also separately filed a Motion on Notice seeking the following orders:
“(1) AN ORDER OF INTERIM INJUNCTION restraining the Defendants jointly and severally by themselves, officers, agents, servants, privies or howsoever called from taking any steps or doing any act or otherwise dealing in/or with the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja in any manner that will adversely affect the interest of the plaintiff as occupant thereof pending the hearing and determination of the Motion on Notice for the interlocutory injunction.
(2) AN ORDER OF INTERIM INJUNCTION restraining the Defendants jointly and severally by themselves, officers, agents, servants, privies or howsoever called from taking any steps or doing any act or otherwise dealing in/or with the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja as to rest in or transfer to Nestllo Global Limited or any other person, any equitable, proprietary or other rights whatsoever in the said property pending the hearing and determination of the Motion on Notice for the interlocutory injunction. (3) AN ORDER OF INTERIM INJUNCTION restraining the Defendants jointly and severally by themselves, officers, agents, servants, privies or howsoever called from evicting the Plaintiff from or otherwise interfering with the Plaintiff’s peaceable possession and quiet enjoyment of the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja pending the hearing and determination of the Motion on Notice for the interlocutory injunction.”
3. On the 19th February, 2007, The Honourable Justice M. N. Oniyangi sitting at the High Court of the federal Capital Territory of Nigeria at Abuja heard the Motion Ex-Parte for Interim Injunctive Orders and held in the following terms:-
“ORDER IS HEREBY GRANTED restraining the Defendants in the interim jointly and severally by themselves, officers, agents, servants, privies or howsoever called from evicting the Plaintiff from or otherwise interfering with the Plaintiff (‘s) peaceable possession and quiet enjoyment of the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja pending the hearing and determination of the Motion on Notice for the interlocutory injunction.
The Motion on Notice is fixed for 27th of February, 2007 for hearing.”
4. On the 20th February, 2007, Tijani A. Danjuma a Bailiff of the Lower court caused to be issued and served upon the present Appellants (as Defendants) the following processes:-
(i) Separate Notice of Consequences of Disobedience to Order of Court (Form 48) to Engr. Mohammed Al-Hassan, Executive Secretary to the 1st Appellant; and to Mallam Nasir El-Rufai, OFR, the then Minister of the Federal Capital Territory.
(ii) Separate Certified Copies of Court Order of the Lower Court of 19th February, 2007 indorsed and endorsed to the Separate forms 48 referred to above.
(iii) Writ of Summons and Statement of Claim filed on 14th February, 2007.
(iv) Motion on Notice together with supporting affidavit seeking interlocutory injunctive orders filed on 14th February, 2007.
5. Proof of Service in form of Certificate issued in terms of form 3 pursuant to the provisions of Order 5 Rule 16(1) and (3) High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 on both Appellants was executed by one Tijani A. Danjuma, a Bailiff of the Lower Court on 20th February, 2007.
6. By letter of 27th February, 2007 both Appellants acting through agents served upon the respondent an unsigned Notice to Quit the property situate at No. 58, (formerly Plot 1112) Kwame Nkrumah Crescent, Asokoro, Abuja within 48 hours thereof or suffer the risk of forceful ejection contrary to, in willful, wanton disobedience to the order of the Lower court of 19th February, 2007. The letter of 27th February, 2007 concluded by stating that:
“Please note that failure to comply with this directive will result in forceful ejection.”
7. Finally, between the hours of 10.30am and 11.30am and 4:00 pm and 5.00pm on Thursday 1st March, 2007, the present Appellants made good on their threat to evict the Defendant from the property in wanton, reckless and arbitrary disregard and defiance of the Order of the Lower Court of 19th February, 2007.
8. Consequently, the present respondent through counsel Caused Notice to Show Cause Why Order of Committal Should Not Be Made (form 49) to be filed and served upon the Defendants, namely Engr. Mohammed Al-Hassan and Mallam Nasir El-Rufai, OFR. The Honourable Justice, M. N. Oniyangi, sitting at the High Court of the Federal Capital Territory at Abuja heard the Form 49 on 29th March, 2007.
9. The Appellants (as Defendants/Respondents) contended that although they were Public Officers, yet since they were not ‘personally’ served with processes which rendered the whole committal proceedings against them incompetent. The Respondent (as Plaintiff) through Counsel relied on the provisions of Order 11 Rule 6 High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 to the effect that owing to the circumstances before the Court, both Forms 49 were properly served and that ‘personal service’ was not synonymous with or meant “service in person’.
10. Learned trial Judge thereafter held inter alia:
“I have patiently listened to the response of Engr. Mohammed Al-Hassan and Mallam Nasir El-Rufai, OFR, The Honourable Minister of the Federal Capital Territory to the question posed by the Court as to why they were not here after being served with the process of this Court inviting them to come forward to explain the part or role which they played in the alleged complaint of the Plaintiff regarding the alleged violation of the interim order of this Court.
I have equally considered the submission of the learned Counsel to the Plaintiff and that of the learned Senior Counsel representing the Defendants/Respondents. Equally, I have considered the provision of Order 11 Rule 6 of this Court’s Rules on service of process and the like. In the instant case and having regard to the provision of the rules and their respective position(s) in the civil service of this great nation they were legally served with the processes. The various endorsements by their staff of their ministry or department is an eloquent testimony to this effect. See also the affidavit of service by the Bailiff in that regard. I therefore hold that they were properly served in law.”
11. The present Appellants thereafter undertook to be of good behavior by respecting the Lower Court’s Order of 19th February, 2007 resulting in the termination of the whole committal proceedings with the Court observing viz:-
“Based on this mutual and free will and magnanimity of the Plaintiff/Applicant to withdraw (her) complaint on the alleged violation of the Court Order and the response of the learned silk representing the Respondents that status quo would be maintained as order by the Court and to which the Court has no objection”.
Parties to abide by their respective undertakings. I commend both learned counsel to the Plaintiff and the learned silk representing the Defendants/Respondents and their respective (team). By this gesture, I am rest assured that there is great hope for enhancement of the rule of law in this country.”
It is against the decision of the Lower Court that the Appellants (as Respondents) were properly served with committal Processes in Form 49 with which the Appellants are dissatisfied that they lodged their Notice of Appeal on 11th April, 2007 on a Sole Ground with 3 Particulars.
That sole ground of appeal is as follows without the particulars:-
GROUND OF APPEAL:
The Lower Court erred in law when it held to the effect that the Executive Secretary of the 1st Appellant and the 2nd Appellant were properly served the forms 49 of the Judgment Enforcement Rules issued at the instance of the Respondent.
On the 16/3/10 date of hearing, Mr. Elogun, learned Counsel for the Appellant adopted their Brief filed on 6/3/08 and deemed filed on 27/10/09. In response to the Respondent’s Preliminary Objection Appellant’s filed a Reply Brief on 10/11/09.
Respondent through counsel, Mr. Fadare filed a Preliminary Objection on 11/8/08 and thereafter incorporated the arguments therefore in Respondent’s Brief filed on 28/10/09 with additional list of authorities on 1/3/10. That preliminary objection has to be first taken and considered before anything else.
PRELIMINARY OBJECTION:
Learned Counsel for the Respondent contended that the Appeal of the Appellants on the Sole Ground constitutes an appeal against an interlocutory decision of the Lower Court which did not decide any issue relating to civil contempt or otherwise committed by the appellants against the Order of 19th February, 2007 issued by the Lower court. That the following facts and deductions are apparent and they are as follows:-
(1) The Sole Ground of Appeal contained in the Notice of Appeal of the Appellants filed on 11th April, 2007 which is against the interlocutory decision of the Lower Court is one of mixed law and fact.
(ii) An interlocutory decision of the High Court of the Federal Capital Territory against which an Appeal is lodged on a ground of mixed law and fact requires the leave of either the Lower Court or this Court to be first sought and obtained before it can be regarded as competent
(iii) No leave of this Honourable Court or the Lower Court was first sought and obtained before the Appeal was lodged.
(iv) Where no leave is obtained before an appeal is filed in the High Court of the Federal Capital Territory on an interlocutory decision of the latter and appeal is based on grounds of mixed law and facts, the appeal will be adjudged incompetent
(v) The Appeal is not based on a living issue requiring the adjudication of this Honourable Court, but rather, requires the determination of an academic or hypothetical question which this Honourable Court has no jurisdiction to entertain or determine.
(vi) In the foregoing circumstances, this Honourable Court will lack jurisdiction to entertain the Appellants Sole Ground of Appeal.
Mr. Fadare of Counsel for the respondent referred to the following cases:
1. First Fuels Limited v. Nigeria National Petroleum Corporation & anor (2007) 2 NWLR (pt. 1018) 276,295 E – H.
2. Williams v. Mokwe (2005) 14 NWLR (pt. 945) 249 at 261 C-E.
3. National electric Power Authority v. Eze (2001) 3 NWLR (pt. 701) 606.
4. Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536.
5. Abbey v. Alex (1991) 6 NWLR (pt. 198) 459.
Learned Counsel for the Respondent further contended that the important consideration in the determination of the nature of a ground of appeal is not the cognomen ascribed to the ground but the question it raises. He cited First Fuels Ltd (supra) at 294 – 295 B-A; Adeyemo v. Beyioku (1999) 13 NWLR (pt. 635) 472; Comex Ltd v. Nigeria Arab Bank Ltd (1997) 3 NWLR (pt. 496) 643; Nasiru v. Bridawa (2006) 1 NWLR (pt. 961) 355.
He went on to state that the line of distinction between law simpliciter and mixed law and fact is a very thin one. That an appellant does not convert a ground of mixed law and fact into a ground of law by christening it ‘error of law’ or ‘misdirection in law’. That in determining whether a ground of appeal alleges an error in law or in fact, to construe the ground of appeal together with the particulars of error alleged. He cited Metal Construction (West Africa) Limited v. Migliore & ors. (1990) 1 NWLR (pt.126) 299, 312 A-B 314 A.
Mr. Fadare of counsel further submitted that the Appellant’s sole Ground of Appeal read together with the Particulars of Error suggest an invitation to this Court to investigate the existence or otherwise of an alleged improper service of court processes on the appellants. That this is , at best a question of mixed law and fact and so the necessity for seeking and obtaining leave either in the Court below or this one before the lodgment of this appeal.
Also that the interlocutory decision of the Lower Court complained of by the Sole Ground of Appeal did not decide any issue relating to civil contempt or otherwise committed by the Appellants against the order of interim injunction of 19th February, 2007 issued by the Lower Court and so such no live issue arises for the determination of this Court, which court cannot embark on a journey of academic and hypothetical determination of most questions under any circumstances since there is no jurisdiction to so act. He referred to Olafisoye v. Federal Republic of Nigeria (2004) 4 NWLR (pt. 864) 580 at 654-655 H-B; Adewumi & anor v. Attorney General, Ekiti State & 6 ors (2002) 2 NWLR (pt.751) 474 at 525 C-D.
Learned Counsel for the Respondent stated on that even if the Sole Ground of appeal and issue formulated for resolution in this appeal are determined, it would not have resulted in any way in the adjudication of the main claim or case i.e the committal proceedings either before the Lower court or in this Court. That Mallam Nasir El-Rufai was the Minister of the Federal Capital Territory that was found to have been properly served with the committal proceedings in person and not the 2nd Appellant qua the office of the Minister of the Federal Capital Territory or the 1st Appellant qua the entity. Federal Capital Development authority who have now appealed. That since neither Mallam Nasir El-Rufai nor Engineer Mohammed Al-Hassan have appealed qua their respective persons, the present appeal is hypothetical and seeks to introduce moot questions for determination. He cited Akinyanju v. University of Ilorin & 6 ors (2005) 7 NWLR (pt.923) 87 at 115 B-C; Mamman v. Salaudeen (2005) 18 NWLR (pt. 958) 478 at 500; Action Congress & anor v. INEC & anor (2007) 18 NWLR (pt.1065) 50 at 74-76 H-G; Ogbonna & 50 ors. v. President, Federal Republic of Nigeria & 14 ors. (1997) 5 NWLR (pt. 504) 281 at 289 A; The Record of Proceedings.
Learned Counsel said, it is clear that whatever decision or complaint as to whether or not there was proper or improper service against Mallam Nasir El-Rufai as the then occupant of the office of the 2nd Appellant was one ground against him in a personal capacity since rendered otiose by a subsequent decision to terminate the proceedings by consent of all parties. That in reaching its conclusion, the Lower court clearly accepted the mutual and consensual position of both the Appellants and the Respondent to terminate all matters relating to the contempt proceedings against the appellants with a view towards achieving an expeditious hearing of the substantive suit. That therefore the Lower court reached a consent judgment or decision in the circumstances.
Mr. Fadare for the respondent further submitted that as regards this present Appeal being one against a consent judgment, for it to be valid and competent for adjudication of this Court, the Appellants ought to have sought and obtained leave of this Court, having not done so from the Court below before this appeal. He cited Dana Impex Limited v. Aderotoye (2006) 3 NWLR (pt. 966) 78 at 92 – 93; Shell Petroleum Development Company Limited v. Adamkue & ors. (2003) 11 NWLR (pt. 832) 533, 602; Action Congress & anor v. INEC (supra) 75; Olori Motors Company Limited v. Union Bank of Nigeria Plc (2006) 10 NWLR (pt. 989) 586 at 606.
Learned Counsel for the respondent said that the consequence of the incompetence of the Sole Ground of Appeal is that any issue formulated from it is itself incompetent and liable to be struck out. He referred to Agbaka v. Amadi (1998) 7 SC (pt. 11) 18 at 22; Korede v. Adedotun (2001) FWLR (pt. 65) 421 at 432-433; Alakija v. Abdullahi (1998) 5 SC 1; Gambari v. Ilori (2002) 14 NWLR (pt. 786) 78 at 93.
In reply, the Appellants utilizing the arguments in their Reply Brief contended and put forward the following points:-
1. That the Sole Ground of Appeal is very competent as it discloses a living issue of law for the just determination of this court and same does not constitute mixed law and fact.
2. That the issue of personal service of the committal processes on an alleged contemnor as contemplated by our laws cannot be said to be a mere challenge to the exercise of discretion by that trial Judge which would have constituted a ground of mixed law and facts.
3. That the procedure for initiating a contempt proceeding against an alleged contemnor is specifically provided for under Order 41 Rule 2 (2) of the High Court (Civil Procedure), of the Federal Capital Territory, and Order 9, Rule 5 (1) and 13 (2) of the Judgment (Enforcement) Procedure Rules made pursuant to the sheriff and Civil Process Act, Cap 407 LFN1990. That the import of the above provisions is that service of Committal processes on an alleged contemnor must be personal and that was not done in the instant case. That the trial Judge relied solely on the provisions of Order 11 Rule 6 of the High Court (Civil Procedure) Rules of the Federal Capital Territory 2004 which provides for service of processes generally.
Mr. Elogun for the Appellants stated on that the interlocutory decision of the Lower court which formed the basis of the Sole Ground of appeal is based on a live issue of law which was a misapplication of the proper law by the learned trial Judge and cannot be properly described as academic or hypothetical. He cited Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718; Yaro v. Arewa Construction Ltd (2007) 30 NSCQLR (pt. II) 1197 at 1217 – 1218; Chief of Air Staff v. Iyen (2005) 21 NSCQLR P.645 at 674; Nwankwo v. EDCS (2007) 29 NSCQLR PP.97-98; Uor
v. Loko (1988) 2 NWLR (pt. 77) 430; Babalola v. The State (1989) 20 NSCC 97; Oni v. Fayemi (2008) 8 NWLR (pt. 1089) 400 at 427.
Learned Counsel for the Appellant urged this Court to invoke the provisions of Order 6 Rule 5 of the Court of Appeal Rules, 2007 in hearing this Appeal as it is competent.
That is a summary of the submissions of counsel on either side in the determination of this appeal.
The Court frowns at disobedience of its orders; particularly by the executive branch of government, and has used rather harsh language such as ‘executive lawlessness’, in describing such acts of disobedience.
On the application of an aggrieved party, the court has in appropriate cases, not hesitated to exercise its coercive power to set aside such acts done in disobedience of its order and restore the parties to the position they were before such disobedience. The rationale for this course of action by the court is to ensure the enthronement of the rule of law rather than acquiesce in resort to self-help by a party. The court also has the power of sequestration and committal against persons disobeying its orders. It is an over generalization and therefore wrong to say that an act done in disobedience of Court order is an illegality. Attorney General, Ekiti State v. Daramola (2003) 10 NWLR (pt. 827) 104 at 161-162 per Ogundare J.S.C Governor of Lagos State v. Ojukwu (1986) 1 NWLR (pt. 18) 621.
A ground of appeal is a ground of law if the ground deals exclusively with the interpretation or construction of the law without resort to the facts. In this respect, the court is involved in the interpretation or construction of either the constitution or a statute with no reference to any factual situation. A ground of appeal which alleges a misapplication of law to the facts of the case is a ground of law. On the other hand, a ground of appeal is one of mixed law and fact when the ground deals with both law and fact. A ground of appeal is one of fact where the ground deals exclusively with the facts of the case and the facts only. Per Tobi J.S.C in Chief of air staff v. Iyen (2005) 1-3 NSCQLR 645 at 674.
In the determination of grounds of appeal, the courts, in most cases refer to the particulars if there are particulars. This will enable the court have a full view of the ground of appeal and come to the proper conclusion whether it is a ground of law or one of mixed law and fact or facts simpliciter. It is therefore not the appellation of the ground of appeal that makes it one of law or that of facts or mixed law and facts.Chief of Air Staff v. Iyen (2005) 21 NSCQR 645 at 674. Per Adekeye J.C.A (as she then was).
Where an appeal is interlocutory and the question raised in the grounds of appeal is that of mixed law and fact, leave of the trial Court or the appellate court will be required before the appeal can be competently filed. First Fuel Ltd. v. N.N.P.C. (2007) 2 NWLR (pt. 1018) 276 at 295; N.E.P.A. v. Eze (2001) 3 NWLR (pt. 701) 606; Abbey v. Alex (1991) 7 NWLR (pt. 198) 459.
A ground of appeal is not let of the hook simply because it is tagged an error in law. The court must be so satisfied that it is indeed so. Per Chukwuma-Eneh in Yaro v. Arewa Construction Ltd. (2007) 4-6 SCQLR 1193 at 1215 – 1216.
The Sole Ground of Appeal is as follows alongside the Particulars and the Reliefs Sought and they are as follows:-
GROUND OF APPEAL:
The Lower court erred in law when it held to the effect that the Executive Secretary of the 1st Appellant and the 2nd Appellant were properly served the Forms 49 of the Judgment Enforcement Rules issued at the instance of the Respondent.
Particulars:
a. Forms 49 dated 1/3/07 and 9/3/07 respectively issued at the instance of the Respondent were served on one Omar A. Bello, a Staff of the Appellant.
b. By the combined effect of Order 9 Rule 5(1) and 13(2) of the Judgment Enforcement Rules made pursuant to Sheriffs and Civil Process Act CAP 407 LFN 1990, and Order 41 Rule 2 (2) of the High Court of FCT (Civil Procedure) Rules, 2004, personal service is required.
c. Inspite of the said provisions the trial Court held that service on the Staff of the 1st Appellant was proper service in hand on the Executive Secretary of the 1st Appellant and the 2nd Appellant.
4. RELIEFS SOUGHT:
An Order allowing this appeal and setting aside the decision of the trial Court that service on the Staff of the 1st Appellant is proper service in hand, on the Executive Secretary FCDA and the Honourable Minister, FCT.
It is trite law that contempt of court is an office sui generis. An application for committal for any disobedience of an order of court is a very serious matter as it involves in most cases an exceptional interference with the liberty of a subject and therefore when any antecedent process has to be put in motion, every prescribed step and rule however technical should be carefully taken, observed and insisted upon. Any irregularity in the procedure for committal is a fundamental vice which vitiates the entire application. Per Edozie J.C.A in Atser v. Gachi (1997) 6 NWLR (pt.510) 609 at 624; Gordon v. Gordon (1946) 1 All E.R. 247 at 250; Boyo v. The State (1970) 1 All NLR 318 at 319-320; Okuosa v. Okwuosa (1973) 3 ECSLR (pt. 1) 75.
“Since a proceeding to commit a person for contempt is a criminal or quasi-criminal proceeding, every procedural step – the legal modus proseqiandi must, ‘ex necessitate’, to be followed, strictly and be strictly complied with.”
That is the exotic picture painted by Nsofor, J,C,A in Bonnie v. Gold (1996) 8 NWLR (pt. 465) 230 at 238 and that description is what is, in effect the law.
By Order 41 Rule 2 (2) of the High Court Rules 1987 applicable in Kwara State the notice of motion and affidavit and grounds for committal for contempt committed ex faciae 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, which is not the case where there was no application for substituted service. Military Governor of Kwara State v. Afolabi (1991) 6 NWLR (pt.196) 212 at 227.
Service of the relevant process on the clerks of the alleged contemnors would not constitute due process under the Rules of court and so the condition precedent to the 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.
Military Governor of Kwara State v. Afolabi (1991) 6 NWLR (pt.196) 212 at 227; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Obimonwe v. Erinosho (1966) 1 All NLR 250; Skenconsult v. Ukey (1981) 1 SC 6; Atser v. Gachi (1997) 6 NWLR (pt. 510) 609.
A court can only be competent if among other things all the conditions precedent to it’s jurisdiction are fulfilled. The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance of the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26.
For emphasis, failure to serve process where service is required is a failure which goes to the root of jurisdiction of the court. Any proceedings in such a case is a nullity and a party against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the order has not been fulfilled.
Atser v. Gachi (1997) 6 NWLR (pt. 510) 609; Odita v. Okwudinma (1969) 1 All NLR 228; Union Beverages Ltd. v. Adamite (1990) 7 NWLR (pt. 162) 348; Scott Emuakpor v. Ukarba (1975) 12 SC 41.
The mere fact that a court is dealing summarily with contempt does not imply that the principles of fair hearing are to be compromised.
Atser v. Gachi (1997) 6 NWLR (pt.510) 609 at 629 – 630; Boyo v. Attorney General Mid-Western State (1971) 1 All NLR 342.
‘Condition’ is a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right. A true condition is where the event on which the existence of the right depends is in the future and uncertain. A ‘condition precedent’ is one which delays the vesting of a right until the happening of an event. Per Uwais, CJN in Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536 a6 562.
‘Lis pendens’ simply means a pending suit, and as stated by the Supreme Court “The doctrine of Lis pendens prevents the effective transfer of rights in any property which is the subject-matter of an action pending in court. In its application, the doctrine is not founded on the equitable doctrine of notice, actual or constructive. It is based on the principle that the law does not allow to litigant parties or give to them doing the currency of the litigation involving any property, rights in such property in dispute so as to prejudice any of the litigating parties. This is good law. For it would be plainly impossible that any action or suit could be brought to a successful termination if alienations pendent lite were allowed to prevail”.
per Katsina – Alu J.S.C (as he then was) in Olori Motors Co. Ltd. v. U.B.N Plc. (2006) 10 NWLR (pt. 989) 586 at 617; Ogundani v. Araba (1978) 6-7 SC 55; Osagie v. Oyeyinka (1978) 3 NWLR (pt. 59) 144; Dan-Jumbo v. Dan-Jumbo (1999) 11 NWLR (pt. 627) 445.
A court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that it is incompetent.
It can do so of its own initiative, even though the parties have consented to the irregularity because mere acquiescence does not give jurisdiction. Attorney General Anambra State v. Okeke (2002) 12 NWLR (pt. 872) 575 at 618 – 619.
Courts do not indulge in the resolution of any issue that will not result in the determination of the claim before it, as such determination would amount to deciding on a hypothetical or academic issue, which the court has no business or jurisdiction to do. Akinyanju v. Unilorin (2005) 7 NWLR (pt. 923) 87 at 115;Akinfolarin v. Solomon Akinnole (1994) 3 NWLR (pt. 335) 659.
A person restrained by a court from doing any particular act or thing must be duly and properly informed or served with the court order restraining him before he could be made criminally liable for a breach of such order. Competent being a criminal charge, the burden of proving it is on the applicant and he must prove all the ingredients in the allegation beyond reasonable doubt. It follows therefore that when the respondent was restrained in his absence by the injunctive order of the High Court, the draw up order duly signed and sealed by the appropriate official of the Court should be served on the respondent who was expected to be authorised by the order. Such service must be in the form duly authorized by the court and anything short of the strict compliance with the procedure would vitiate any such application for committal. Bonnie v. Gold (1996) 8 NWLR (pt.465) 230 at 237 Okoya v. Santilli (1991) 7 NWLR (pt.206) 753; Agbachom v. State (1970) 1 All NLR 69; Awobokun v. Adeyemi (1968) NMLR 289; Onagoruwa v. Adeniji (1993) 5 NWLR (pt. 193) 319.
It is true that by virtue of Section 25 (2) (a) of the Court of Appeal Act, an appeal against an interlocutory decision of a High Court such as we have at hand must be filed within 14 days. However, a ground of appeal which challenges the competence of an appeal or the jurisdiction of the Court of Appeal to entertain an application for leave to appeal is a ground of law and so, when such leave was not obtained if the ground is just of law, then the appeal can survive, which is the position Appellant wants this court to take. That position is strongly disputed by the 1st Respondent who contends that the leave must first be obtained before the appeal can be entertained. They posit that the situation is a ground of mixed law and fact irrespective of the titling by Appellant that the ground is just of law.
See N.E.P.A. v. Eze (2001) 3 NWLR (pt. 701) 606; Williams v. Mokun (2005) 14 NWLR (pt. 945) 249 at 261.
The Appellant through Mr. Elogun invokes the Court’s powers under Section 16 of the Court of Appeal 1976. That Section operates to enable the Court of Appeal to exercise all such regular and lawful inherent powers that are open to it with a view, to arriving at a just and expeditious determination of a matter properly before it on appeal.
Attorney General Anambra State v. Okeke (2002) 12 NWLR (pt. 982) 575; Metal Construction (W.A.) Ltd. v. Migliore (1979) 6-9 SC 163.
The incontestable limit to the power of the Court of Appeal to assume a first instance jurisdiction under Section 16 of the Court of Appeal Act 1976 is that such first instance jurisdiction does not include what the trial Court not have done. Attorney General Anambra State v. Okeke (2002) 12 NWLR (pt. 782) 575 at 609 per Ayoola J.S.C.
As a follow up by virtue of section 16 of the Court of Appeal Act, 1976, the Court of Appeal is given full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as the Court of first instance and may re-hear the case in whole or in part or may remit, it to the High Court for the purpose of such re-hearing. Even though the powers of the Court of Appeal under this provision of the law are wide, it does not suggest that they are unlimited. There are limitations to the powers and these limits are to be determined case by case and not by a priori general propositions. Attorney General Anambra State v. Okeke (supra) 607 – 608; Jadesimi v. Okotie-Eboh (N0.2) (1986) 1 NWLR (pt. 16) 264.
In all civil litigations, it is the duty of the court to aim at, and to do, substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice and the end of litigation while recognizing that rules of court should be observed and followed, it should also be emphasized that justice is not a fencing game in which parties engage each other in a whirling of technicalities. Adewunmi v. Attorney General Ekiti State (2002) 2 NWLR (pt 751) 474 at 507 Per Wali, J.S.C, Afolabi v. Adekunle (1983) 2 SCNLR 141; Olafisoye v, Federal Republic of Nigeria (2004) 4 NWLR (pt. 864) 580.
An academic scholarly criticism of the greatest learning of an existing law does not wipe out the existing law. And the Courts are bound to interpret the existing law and not a critique of it.
Therefore, courts of law as a most serious and sacred institution do not build upon hypothesis or imagination, which is an idea suggested as a possible way of explaining facts or providing an argument. A theoretical hypothetical point is not for the courts to consider as the courts do not make moot decisions nor decide hypothetical cases which have no bearing with what the court is called upon to decide.
Having considered the legal principles and authorities in relation to the case at hand there is no gain saying that the matter of the service of a committal proceeding for 1st and 2nd Appellants which service was received on their behalf by the Executive Secretary, whether or not good service cannot be taken as a cut and dried matter of law rather the situation will call for elucidation which would create the new position of fact finding, therefore a matter of mixed law and facts. Therefore without leave, any attempt at appeal is a non starter as the condition precedent to a valid appeal is not in place. That would be an incurable defect. See Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536 at 562, Olori Motors Co. Ltd v. UBN Plc.(2006) 10 NWLR (pt.989) 586 at 617; Ogundani v. Araba (1978) 6 – 7 SC; Osagie v. Oyeyinka (1987) 3 NWLR (pt.59) 144.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, MARY U. PETER-OD1LI, J.C.A just delivered and I agree with my Lord’s reasoning and conclusion.
It is also my view that this appeal is incompetent because when the sole ground of appeal is read together with the particulars of error, it suggests an invitation to this Court to investigate the existence or otherwise of an alleged improper service of Court processes on the Appellants. This in my view is a question of mixed law and fact. It would therefore be necessary for an Appellant in this type of situation to seek and obtain leave either in the Court below or this Court before the notice of appeal could be filed.
It is for the above reason and fuller reasons in the lead Judgment that I also strike out this appeal.
There shall be no order as to costs.
ABDU ABOKI, J.C.A.: I have read before now the Lead Judgment of my learned brother MARY U. PETER-ODILI J.C.A. just delivered. I agree with all the reasonings and conclusion reached that this appeal be struck out for lack of merit and I hereby strike it out.
The preliminary objection of the 1st Respondent succeeds and is hereby upheld.
I abide by the order as to costs.
Appearances
For Appellant
AND
For Respondent
