FIRST BANK OF NIGERIA LIMITED v. CHIEF ISAAC OSARO AGBARA & ORS
(2019)LCN/12679(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2019
RATIO
COURT AND PROCEDURE: WHERE CONTEMPT OF COURT ARISES
“…Contempt of a Courts order, may arise in manifold or a variety of circumstances and may be described as any conduct, act or omission which tends to undermine and to bring the authority and dignity of a Court of law and the administration of justice, generally, to disrespect. In the case of Abbas v. Solomon (2001) FWLR (67) 847, (2001) 15 NWLR (735) 114, Iguh, JSC had said that:- There can be no doubt that it is a civil contempt of Court to refuse or neglect to do an act required by a judgement or order of the Court within the time specified in the judgement or order or within the time as abridged or provided for under the rules of Court or to disobey a judgement or order requiring a person to abstain from doing a specified act or to act in breach of an undertaking given to the Court by a person, on the faith of which the Court sanctions a particular course of action or inaction.” PER PER MOHAMMED LAWAL GARBA, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“It must be remembered that the right to a fair hearing guaranteed by the provisions of Section 36(1) of the Constitution simply requires that parties be provided and afforded equal and reasonably adequate opportunity and time to be heard on any material issue of dispute to be judicially determined or decided by a Court of law or other tribunal established by law, in the determination of their civil rights and obligations.See Baba v. N.C.A.T.C. (1991) 7 SCNJ, 1, (91) 7 SC (Pt. 1) 58, (91) 5 NWLR (192) 388, Adigun v. A.G., Oyo State (1987) 1 NWLR (53) 678, Mohammed v. Olawunmi (1990) 4 SC, 40, (1990) 1 NWLR (133) 458, Kotoye v. CBN (1989) 1 NWLR (98) 419, (89) ALLNLR, 76, Victino Fixed Odds Limited v. Ojo (2010) 8 WLR (1197) 486, LPDC v. Fawehinmi (1985) 1 NWLR (2007) 300.” PER MOHAMMED LAWAL GARBA, J.C.A.
JURISDICTION: WHERE JURISDICTION ARISES
“Jurisdiction of a Court or tribunal to conduct valid proceedings in a case over parties, would, among other, depend on the service of the material and relevant processes of the Court on the parties to the case in whose absence, the case could not effectively, fairly, completely and finally be decided or determined by the Court or tribunal. Amuda v. Ajobo (1995) 7 NWLR (406) 170; Santa Fe Drilling Nig. Ltd v. Awala (1999) 6 NWLR (608) 623; Adisa v. Oyinwola (2000) 6 SC (Pt. II) 47” PER MOHAMMED LAWAL GARBA, J.C.A.
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
Although the decision in Appeal No. CA/L/907c/2018 has effectively overtaken the issues canvassed in this appeal, I would still consider the issues on their merit, in case I be found to be wrong on further appeal to the apex Court, in the discharge of the duty of this Court to deal with all issues raised and properly put before it by the parties in an appeal.See Ikpeazu v. Otti (2016) 8 NWLR (1513) 38; Dasuki v. FRN (2018) 10 NWLR (1627) 320 @ 343; PDP v. INEC (2018) 12 NWLR (1634) 533; Osareren v. FRN (2018) 10 NWLR (1627) 221 @ 234.
The Federal High Court, sitting at Portharcourt (Lower Court) delivered judgment in favour of the 1st-6th Respondents against Shell Petroleum Development Company of Nigeria Ltd (SPDCN) and two (2) others, on the 14th June 2010 in Suit No FHC/PH/CS/231/01 (later renumbered Suit No. FHC/ASB/CA/57/2010). SPDCN appealed against the judgment (which was for the payment of money for damages) and its application to the lower Court for stay of execution pending the determination of the appeal was granted on 5th August,2010 on the condition that they posted a bank guarantee in favour of the judgement Creditors to secure the payment of the judgement debt in the event the appeal failed. The Appellant (then First Bank of Nigeria, Plc) issued the bank guarantee dated 17th December, 2012 as ordered by the lower Court for the stay of execution of the judgement in question and on the ground that the Appellant failed/refused to honour its obligations under the guarantee when it became due, the lower Court issued, at the instance of the 1st-6th Respondents, Notice of Consequences of disobedience to Order of Court (Form 48) to and against the Appellant and the 7th & 8th Respondents.
The 1st-6th Respondents also filed a motion on the 19th March, 2018 under Order 35, Rules 1 and 2 of the Lower Courts Rules, 2009 for an order committing the 7th & 8th Respondents to prison for persistent and flagrant disobedience of the undertaking/Bank Guarantee given on 17th day of December 2012 to which was annexed, Notice to show cause why Order of Committal should Not be Made (Form 49)
After service of FORM 48 and the motion of 19th March 2018 on it, the Appellant filed a Counter/Affidavit to the motion for committal and a motion dated the 19th but filed on the 20th March, 2018 seeking for an order for the dismissal of the suit on the following grounds: –
(i). There is no Order of Court against the applicants in respect of which they can be in breach of and/or contemptuous of.
(ii) There is no Order against the applicants which they have violated or in respect of which they can be liable for commencement of contempt proceedings.
(iii) The applicants were not parties to the Order of this Honourable Court made on 5th August, 2010, referenced in Forms 48 and 49, issued in this suit on 26th February, 2018 and 2nd March, 2018, respectively.
(iv) The Form 49 issued in this suit is incompetent, not having annexed with it any affidavit or any Motion on Notice supported by any affidavit.
(v) Forms 48 and 49 issued herein in purported execution of the Order of this Honourable Court made on 5th August, 2010, is statute-barred.
(vi) This action is entirely incompetent and in breach of applicants right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(viii) This Honourable Court is divested of the jurisdiction to entertain this suit.
(ix) It is in the interest of justice that the instant application is granted.
The Appellant also filed another motion on 28th March, 2018 for an order dismissing or striking out the 1st-6th Respondents Motion of 19th March, 2018.
The motions filed by the Appellant and the 1st-6th Respondents were heard on the 18th May, 2018 and Rulings therein delivered on 6th June 2018, striking out the Appellants motion of 20th March, 2018 as premature and granting the 1st-6th Respondents motion for committal.
The Appellant brought this appeal against the decision contained in the Ruling on their motion vide the Notice of Appeal dated and filed on 20th June, 2018 containing eight (8) grounds from which five (5) issues were distilled in the Appellants brief filed on the 13th August, 2018 for decision by the Court. The issues are: –
(i) Considering the definitive finding of the lower Court that appellant breached an undertaking whilst giving its decision on the preliminary objection to the contempt proceeding filed by the appellant at the lower Court, whether the decision is not liable to be set aside for breach of fair hearing. (Ground 2)
(ii) Whether the lower Court was not wrong to have validated Form 48 filed by the 1st-6th Respondents before it on the ground that it was a vehicle used to notify appellant of the consequences of the breach of an undertaking. (Ground 3, 4)
(iii) Did the lower Court breach the appellants right to fair hearing by using and relying on exhibits attached to 1st-6th respondents motion for committal in resolving appellants separately filed jurisdictional challenge to the originating processes at the lower Court dated 19th March, 2018 (Grounds 5 and 7).
(iv) Whether the lower Court was not wrong when it described appellants application as premature and failed to resolve fundamental jurisdiction issues raised before it. (Grounds 1 and 6).
(v) Was the lower Court not wrong to have held that appellants reply address was a re-argument of its motion? (Ground 8)
In the 1st-6th Respondents brief filed on 26th October, 2018, two (2) issues are said to arise for determination in the appeal as follows: –
a. Whether the Appellants right to fair hearing was breached by the lower Court. (Distilled from Grounds 2, 5, 7 and 8, addressing Appellants Issues 1, 3 and 5).
b. Whether 1st to 6th Respondents processes before the lower Court were defective and warranting the granting of the Appellants motion at the lower Court. (Distilled from Grounds 1, 3, 4 and 6, addressing Appellants issues 2 and 4).
An Appellants reply brief was filed on 31st October, 2018 and a Notice of Preliminary Objection was filed by the 1st-6th Respondents on 6th November, 2018 to challenge the jurisdiction of the Court to adjudicate over the appeal as constituted in reaction to which, the Appellant filed a Counter-Affidavit on 8th November, 2018.
Lists of Additional Authorities were filed on the 5th November, 2018 by the Appellant in support of the appeal and in opposition to the objection, and on 9th and 26th of November, 2018 by the 1st-6th Respondents in support of the objection which is premised on the following grounds: –
1. The Counsel to the Appellant, the 7th and 8th Respondents are the same team of lawyers having been retained by both the Appellant, the 7th and 8th Respondents on record.
2. The Appellants Brief of Argument and Reply Brief in this Appeal are incompetent having been filed without stating the address for service of the 7th and 8th Respondents.
3. The Appellant, through its Counsel, accepted services on behalf of the 7th and 8th Respondents.
4. The Appellant has argued its appeal without serving either the Appellants Brief or Reply Brief on the 7th Respondent or 8th Respondent, being parties on record.
5. This appeal is an abuse of the process of this Honourable Court.
6. That it is interest of justice that this Preliminary Objection be granted and the entire Appeal dismissed.
In line with the established and prudent practice, I would deal with and decide the objection to the jurisdiction of the Court to adjudicate over the appeal, first.
Although, the objection was not argued in the 1st-6th Respondents brief which was filed earlier or in a written address, it has attached to it,AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE deposed to by an associate in the Chambers of the 1st-6th Respondents lead Counsel along with copies of first and last pages of the Briefs filed by learned Counsel for the parties to the appeal and the appeals by the 7th and 8th Respondents, among other documents.
The learned Lead Senior Counsel for the 1st-6th Respondents; Mr. L. E. Nwosu, SAN moved the objection at the oral hearing of the appeal and urged the Court to uphold it on the ground that the Appellants briefs are incompetent for non-compliance with the mandatory Rules of Court in failure to state addresses for service on the 7th and 8th Respondents, thereon and that Appellant and 7th & 8th Respondents are represented by the same Counsel in the appeal.
The 7 paragraphs Counter-Affidavit for the Appellant in opposition to the objection was referred to and adopted by the Lead Learned Senior Counsel for the Appellant; Chief Wole Olanipekun, SAN and the Court was urged to dismiss the objection.The Learned Silks says the objection is an abuse of the Courts process, citing Saraki v. Kotoye (1992) .; Adewunmi v. Plastex (1986) 3 NWLR (32) 767 and Order 20, Rule 5 of the Court of Appeal Rules, 2016 and that in any case, it is for the 7th and 8th Respondents to complain about absence of their address for service and not the 1st 6th Respondents.
The Learned Silk for the 1st 6th Respondents cited Order 2, Rule 13 of the Court of Appeal Rules, 2016 as well as the cases number 4 and 5 on the List of Additional Authorities filed on the 26th November, 2018, in response and once more, urged the Court to uphold the objection.
Resolution of Objection:
In his oral argument on the objection and on the List of Additional Authorities, the learned SAN for the 1st-6th Respondents referred to Order 17, Rule 3(1) of the Court of Appeal Rules, 2016 which requires that a Notice of Appeal, or application for leave or for extension of time to appeal, shall be given in the Forms set out in the 2nd Schedule to the Rules.It may however be recalled that from the grounds of the objection and the averments in the Affidavit in support thereof, the fulcrum of the complaint is that the Appellants did not provide addresses for service of the Appellants briefs on the 7th and 8th Respondents and that the Appellants counsel was served and he accepted services of processes of the 1st-6th Respondents, for the 7th & 8th Respondents, thus representing both the Appellant and 7th & 8th Respondents to the appeal.
Speaking generally, pursuant to the Constitutionally guaranteed right of a person to a fair hearing in the determination of his civil rights and obligations by a Court of law or tribunal established by the law, provided for in Section 36(1) of the 1999 Constitution (as altered) a party to any proceedings; civil or criminal, conducted by a Court or tribunal in Nigeria, has the right to be notified of and be served with all the material processes in such proceedings for him to be afforded not only a hearing, but a fair hearing in the proceedings.See Otapo v. Sunmonu (1987) 5 SCNJ, 57; Baba v. N.C.A.T.C. (1991) 5 NWLR (192) 388; Bamgboye v. Univer. of Ilorin (1999) 10 NWLR (622) 290; N. A. C. B. Ltd. v. Obadiah (2004) 4 NWLR (863) 326; B. O. N. Ltd v. Adegoke (2006) 10 NWLR (988) 339.
Jurisdiction of a Court or tribunal to conduct valid proceedings in a case over parties, would, among other, depend on the service of the material and relevant processes of the Court on the parties to the case in whose absence, the case could not effectively, fairly, completely and finally be decided or determined by the Court or tribunal. Amuda v. Ajobo (1995) 7 NWLR (406) 170; Santa Fe Drilling Nig. Ltd v. Awala (1999) 6 NWLR (608) 623; Adisa v. Oyinwola (2000) 6 SC (Pt. II) 47
Parties to proceedings of a Court cannot be served with the material processes of the Court without proper and effective addresses provided or endorsed on the processes for the purpose as required by the relevant Rules of Court.Provision of addresses for service of Court processes by parties as provided by the Rules of Court is therefore very fundamental and crucial for the hearing and determination of cases by the Court, as the absence of such address(es) would result in non service, which depending on the peculiar facts and circumstances, may go to the competence of the processes and by necessary implication, the jurisdiction of the Court to adjudicate over them.See Adeleke v. Oyo State House of Assembly (2006) ALL FWLR (319) 862; Agip Nig. Ltd. v. Agip Petroli Intl (2010) 6 NWLR (1187) 348.
For the purpose of the objection, Order 2, Rule 4(1) of Court of Appeal Rules, 2016 provides that: –
4(1) Every person who by virtue of service on him of a notice of appeal becomes a Respondent to any appeal or intended appeal shall within thirty days after service on him of the notice of appeal file twenty copies with the registrar of the Court below notice of a full and sufficient address for service in such number of copies as the said registrar shall require. The registrar of the Court below shall forthwith send a copy of the notice of address to the Registrar and shall cause a copy thereof to be served on the Appellant.
By these provisions, the duty and obligation to provide an address for service of processes of an appeal on a person who becomes a Respondent to the appeal, are imposed on that person after being served with the Notice of Appeal.The notice of this appeal is at pages 1165 to 1172 of Vol. III of the Record of Appeal and at page 1172 (the last page), address for service thereof on each of the 7th & 8th Respondents was separately and clearly set out and being an appeal by the Appellant; a corporate legal entity that can only act by or through human beings as its principal officer and agents or servants,see Shuwa v. Chad Basin D. A. (1991) 7 NWLR (205) 550, NNSC Ltd. v. Alh. Hamajoda Sabana Co. Ltd. (1988) 35 SCNJ, 130; SPDCN Ltd. v. Allaputa (2005) 9 NWLR (931) 475; Ishola v. Societe Generale Bank Nig. Ltd. (1997) 2 NWLR (488) 405, the Notice of Appeal was signed by the Managing Director (MD) and Secretary, being an appeal in criminal or quasi-criminal proceedings, required to be personally signed, and filed by an Appellant. Order 17, Rules 4(1) and 6 of the Court of Appeal Rules, 2016, provide that: –
4(1) Every notice of appeal or notice of application to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the Appellant himself or by his legal representative except under the provision of sub-rules (5) and (6) of this Rule.
6. In the case of a body corporate where any notice or other document is required to be signed by the Appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the secretary, clerk, manager or legal representative of such body corporate.
It is not the case of the 1st-6th Respondents in the objection that the 7th & 8th Respondents were not duly served with the Notice of Appeal at the address provided for service thereon and since there was/is no complaint from the 7th & 8th Respondents, that they are not in fact duly served with the Notice of Appeal at the address provided thereon, the reasonable presumption is that they were duly served therewith.With that position, as shown above, the duty to provide an address(es) for service of subsequent processes in the appeal on them, is placed on the 7th & 8th Respondents by the provisions of Order 2, Rule 4(1) and until they are satisfactorily shown to have discharged the duty by compliance with the provisions, Sub-Rule 3 of Rule 4 will apply. It provides that: –
4(3) If any Respondent fails or omits to file such notice of address for service it shall not be necessary to serve on him any other proceeding in the appeal or any notice of hearing thereof.
Order 19, Rule 4(1) of the Rules which provide and require that an Appellants brief shall contain address or addresses for service, could only be complied with in respect of a Respondent or Respondents who obeyed and complied with the provisions of Order 2, Rule 4(1) by providing the required address(es) for service of processes in the appeal by other parties on them. In the absence of compliance by the Respondent(s) with the requirements of the Rules, mere absence of address(es) for service on them of processes of the appeal, including the Appellants brief, would not ipso facto, render it incompetent for the purpose of hearing and determination of the appeal.However, where a complaint was made by a Respondent who was not served with a process because no address was provided on the process for service on him, the Court may direct that the said process be served on such Respondent in line with dictates of justice in the case.
In the present appeal, the objection has not demonstrated that the 7th & 8th Respondents provided the addresses for service of the Appellants briefs and other processes in the appeal, which was omitted from the Appellants brief and the fact that the 1st-6th Respondents address for service was provided for on the Appellants briefs even though they may not have complied with the requirements of Order 2, Rule 4(1)by providing it after receipt of the Notice of Appeal, did not derogate from nor mitigate the duty of the 7th & 8th Respondents to have so complied with the provisions of the Rules.
In addition, since the 7th & 8th Respondents are agents and/or servants by or through whom the Appellant could only act and both were proceeded against by the 1st-6th Respondents in that capacity in the contempt proceedings from which this appeal arose and the Appellant had retained its learned Senior Counsel for the said proceedings against it and the 7th & 8th Respondents, they have the same interest in the appeal which challenges the validity of not only the proceedings, but the decision to commit them for contempt. The fact that the three of them: Appellant, 7th & 8th Respondents had to file separate Notices of Appeal against the Ruling by the lower Court is premised by the settled requirement of the law that in criminal trials, where more than one party or accused persons were convicted, each must personally signed and filed a separate Notice of Appeal if he desires to appeal against the decision of the trial Court.See Order 17, Rule 4(1); Asco Nig. Ltd. v. Ward & Green (2010) 3 NWLR (1181) 302; Karsha v. COP (1991) 2 NWLR (172) 202.The Appellant and 7th & 8th Respondents would only be Respondents in appeals by each of them not because the decision of the lower Court was in their favour but that parties are not at liberty to change the parties, as constituted before the lower Court, on appeal.
The Apex Court in the case of PDP v. Godwin in Re: Apeh (2017) 2-3 SC (Pt. 1) 1 @ 49, (2017 11 NWLR (1576) 252 @ 293 and 296, per I. T. Muhammad, JSC, had said that: –
It is settled law that individuals are not allowed to unilaterally alter a case as constituted from trial Court and the names of parties in that character must be maintained except as may otherwise be ordered by the Court of law.It is not open for a party to unilaterally effect a change in the names of parties who are on record of proceedings of any Court.
So the 7th & 8th Respondents to this appeal are only listed as Respondents in line with the above position not because they are real Respondents as defined by Order 1, Rule 5 of the Court of Appeal, 2016 which says: –
Respondent; any party in a criminal appeal means the person who undertakes the defence of the judgment appealed against and includes a legal practitioner representing such a person in the proceedings before the Court;
In this con, since the 7th and 8th Respondents have each appealed against the Ruling by the lower Court, and are Appellants in respect of their appeals, they are not parties who undertake the defence of the Ruling appealed against in this appeal for them to be substantive Respondents for the purpose of the hearing and determination of the appeal.At best, they are nominal Respondents to the appeal by the operation of the principle of law stated above.Both the Appellant and the 7th & 8th Respondents are dissatisfied with the Ruling by the lower Court and if it was in purely civil proceedings, they would have filed a joint appeal against it as permitted and required by the Rules of the Court.Being dissatisfied with the Ruling by the lower Court, the Appellant, the 7th & 8th Respondents have common, identical and joint interest in the appeal to be presented by the Counsel instructed by them in that regard.In the circumstances, they do not have to instruct separate Counsel for the purposes of the separate appeals they filed against the said Ruling, notwithstanding the nomenclature of being Respondents ascribed to them in appeals other than their own separate ones.
The position of the Appellant and the 7th & 8th Respondents should not be equated with parties in purely civil proceedings in whose favour a decision was given by a trial Court and are made Respondents to an appeal against the said decision, who have the traditional role of defending it in the appeal, see Oguma Assoc. Co. Ltd v. IBWA Ltd (1988) 1 NWLR (73) 1; Kotoye v. CBN (1989) 1 NWLR (98) 419; Obi v. INEC (2007) 11 NWLR (1046) 560, even if they were dissatisfied with some aspects or parts thereof and have filed a notice of cross-appeal in that regard, such Respondents could not file separate appeals against the same decision in the same case and between the same parties and so cannot be Appellants in some and Respondents in other of the appeals. See Agbedo v. Adenowo (2018) 13 NWLR (1636) 264 @ 299.
As borne out by the record of the proceedings at the hearing of the appeal, the 7th and 8th Respondents are represented by Mr. Emmanuel Uwadoka who announced his appearance for them. Very recently, in the case of Martins v. FRN (2018) 13 NWLR (1637) 523 @ 543, para. B-C; Kekere-Ekun, JSC poignantly stated that:
It does not also lie in the mouth of a litigant to question the authority of the legal practitioner representing his adversary in the proceedings. As stated in the lead judgement, learned Senior Counsel for the appellant cannot cry louder than the bereaved. When Counsel announces appearance in Court as representing a party to the proceedings, it is presumed that he has been briefed by that party and has his authority to conduct the proceedings on his behalf. It is not for the Court to embark on an inquiry as to whether he has such instructions or not. See FBN Plc v. Maiwada (2013) 5 NWLR (1348) 444; FRN v. Adewunmi (2007) 10 NWLR (Pt. 1042) 399.
This pronouncement from the apex Court has fully and effectually answered any complaint raised by the learned SAN for the 1st-6th Respondents in respect of the representation for the 7th & 8th Respondents at the hearing of the appeal.
In the absence of any complaint by the 7th & 8th Respondents through their Counsel that they were not served with any of the material processes of the appeal, but particularly the Appellants brief, the 1st-6th Respondents brief and the Appellants Reply brief, the fact that no address for service on them was provided on the Appellants briefs constitutes and only amount a mere procedural irregularity arising from inadvertence or mistake of counsel which does not and has not been suggested to have caused or is likely to cause any prejudice to the 1st-6th Respondents in the hearing and determination of the appeal. In these premises, even if there was non compliance with the provision of Order 19, Rule 3(1) of the Court of Appeal Rules, it does not go to the competence of the said briefs and is condonable for the purpose of the determination of the appeal on the merit, which is the primary purport of the Rules. In this regard, the popular statement by the apex Court many years ago, in the case of Nneji v. Chukwu (1988) 6 SCNJ, 132, (1988) 3 NWLR (81) 184, is apt, that: -Albert rules of Court are meant to be complied with but the principal object of the Courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with those rights. Rules of Court are made to help the Court in its primary duty and objective; namely, to do justice to the parties by deciding on the merit of their case.The rules are mere hand maids to justice and inflexibility of the Rules will only serve to render justice grotesque. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merit, but a technical knock-out at the expense of a hearing on the merits.
See also Nishizawa Ltd v. Jethwani (1984) 12 SC, 234 @ 286; Afribank Ltd v. Owoseni (1995) 2 NWLR (375) 110; F. S. B. Intl Ltd. v. Imano (2000) 7 SCNJ, 65 @ 78; Alsthom v. Saraki (2000) FWLR (28) 2267.
In the result, for the aforenamed reasons, the objection is wanting in merit, it fails, is overruled and dismissed.
I now return to the issues for determination in the appeal.
A calm look at the issues raised in the Appellants brief would easily show that Issues 1, 3 and 5 deal with a complaint of denial or breach of the Appellants right to fair hearing in reaching the decision appealed against and can be considered together. I intend to consider the Appellants issues since they are derivable from the grounds of the appeal and issues 1, 3 and 5 together, which are also subsumed in the Issue a in the 1st- 6th Respondents brief.
Issues 1, 3 and 5
Appellants Submissions:
The submissions on Issue 1 are that the originating processes before the lower Court were the Forms 48 and 49 issued at the instance of the 1st-6th Respondents for the determination of whether the Appellant was in breach of an order or/and undertaking, which being criminal in nature, required proof beyond reasonable and not to be determined on an objection to jurisdiction of the lower Court. That in the determination of the objection to its jurisdiction by the Appellant dated 19th March 2018, the lower Court was limited to the processes filed in respect of same and cannot go outside thereof and to even decide that the Appellant, was in breach of any Court order or undertaking as was done by it in the Ruling appealed against.
Madukolu v. Nkemdilim (1962) 2 ALL NLR, 581 @ 589-90 on the nature of jurisdiction of a Court and Nwankwo v. Yaradua (2010) 12 NWLR (1209) 518 @ 540 and Odon v. Bariga-Amange (No.2) (2010) 12 NWLR (1207) 13 @ 28 on the law that a Court should refrain from a pronouncement on the substantive matter in the determination of an interlocutory issue in a case, were cited and it is contended that that lower Court had made finding on the 1st-6th Respondents committal proceedings which was the substantive matter/issue before it in the case, while determining the Appellants objection to its jurisdiction to adjudicate over the said proceedings. A portion of the lower Courts Ruling at page 1157 of the Vol. III of the Record of Appeal was set out and the cases of Trade Bank, Plc v. Chami (2003) 13 NWLR (836) 158 and Mbanefo v. Molokwu (2014) 6 NWLR (1403) 377 @ 415-6 were referred to in support of the argument.
Relying on Adebesin v. State (2014) 9 NWLR (1413) 609 @ 635-6, it is said that the lower Courts decision is tainted with bias by prejudging the 1st-6th Respondents case before it as successful at the preliminary stage, relying on exhibits attached to a separate motion to the one it was determining, thus breaching the Appellants right to fair hearing, on the authority of Mohammed v. Kano N. A. (1968) 1 ALLNLR, 411 and Anuforo v. Obilor (1997) 11 NWLR (530) 661 @ 674, among other cases. Akamgbo-Okadigbo v. Chidi (No.2) (2015) 10 NWLR (1466) 124 @ 197-8; Salu v. Egeibon (1994) 6 NWLR (348) 23 @ 44 and Tsokwa Motors v. UBA, Plc (2008) 2 NWLR (1071) 347 were cited on the effect of breach of the right to fair hearing on a decision by a Court and the Court is urged to resolve the issue in Appellants favour.
Similar arguments are proffered under Issue 3 and it is said that the lower Court did not even consider the Appellants counter-affidavit to the motion for committal when it referred to exhibits attached to the Counter-Affidavit of the 1st-6th Respondents in its Ruling and so the Appellants right to fair hearing was breached thereby.Cases, including Adeyemi v. Opeyori (1976) 9-10 SC, 31 @ 51 were cited on the determinant of a Courts jurisdiction in a case and it is maintained that the lower Court erred to have made reference to the exhibits attached to the 1st-6th Respondents motion for committal in deciding the Appellants objection to its jurisdiction.In the alternative, it is argued that even if the lower Court could make reference to the said exhibits, they do not validate the Form 48, which if could be used to enforce a Bank guarantee, was incompetent because the guarantee was not attached to it.
On Issue Five (5), it is submitted that the lower Courts refusal to consider the Appellants Reply to the 1st-6th Respondents Address dated 6th April, 2018 in opposition to the Appellants motion on the ground that it was a re-argument of the motion, constituted a breach of the Appellants right to fair hearing.Citing Olafisoye v. FRN (2004) 4 NWLR (864) 508 @ 64 (sic), it is argued that the said Reply was not a re-argument of the Appellants motion, but rather response to issues raised by the 1st-6th Respondents in their address.Reference was made to some issues addressed in the Reply said to be in response to new issues raised in the 1st-6th Respondents address and relying on Section 294(1) of the 1999 Constitution and Kalu v. State (2017) 14 NWLR (1586) 522 @ 549-9 and 551 among other cases, it is contended further that the Appellant has the right to file the said Reply.
The Court is urged to resolve both Issues 3 and 5 in Appellants favour and set aside the Ruling by the lower Court on ground of breach of the Appellants right to fair hearing.
1st 6th Respondents Submissions
It is submitted that the lower Court did not determine or make pronouncement on the substantive issue in the committal proceeding while dealing with a preliminary matter and that the Appellants arguments are misconceived on the basis of failure to appreciate the nature of the committal proceedings.Citing Odu v. Jolaoso (2005) 16 NWLR (950) 178 which affirmed this Courts decision in the case reported in (2003) 8 NWLR (823) 547 @ 560, the learned SAN submits that the object of the committal proceedings before the lower Court was not for the purpose of deciding whether the Appellant was in breach but rather, merely to show cause why an order for committal should not be made against it for breach of the undertaking/bank guarantee given pursuant to the order of that Court. The case of Mofunanya v. Nwadiogbu (2017) LPELR-43079 (CA) cited in the Appellants brief, was referred to on the special nature of contempt proceedings and it further submitted that Order 35 Rule 1 of the lower Courts Rules, 2009 empowers it to punish for contempt where there is breach of an undertaking to the Court and that by Rule 2, the lower Court had to resort to the motion filed for committal to determine whether the circumstances of the breach of an undertaking have been disclosed so as to justify the issuance of Forms 48 and 49 in the suit. According to the learned Silk, it is akin to resort to a Court looking at avernments in a statement of claim in order to determine whether or not an action is alive as to justify the issuance of the writ of summons and so all the arguments of the Appellant and authorities cited on the issue are not relevant in view of the object of the contempt proceedings.
It is also argued that for the purpose of the contempt proceedings before the lower Court, the motion and the Affidavit in support thereof filed by the 1st-6th Respondents were the originating processes which the lower Court was entitled to look at in the determination of the objection to its jurisdiction by the Appellant on the authority of C. C. Oil & Gas Co. Ltd v. Masiri (2011) 3 NWLR (1234) 283 @ 301; Nwosu v. Nzeadibe (2010) LEPLR-4897 and Order 35, Rule 2 of the lower Courts Rules.Cases on the determinants of jurisdiction of a Court, that include, Opia v. INEC (2014) 7 NWLR (1407) 431 @ 453 and Anyanwu v. Ogunewe (2014) 8 NWLR (1410) 437 @ 469 are referred to and it is submitted that no mention was made in all of them of response to originating of processes and the facts of the case of Society Bic, SA v. Charzin Ind. Ltd (2014) 4 NWLR (1398) 497 @ 535 cited in the Appellants brief are different to the facts before the lower Court.
It is then submitted that the lower Court had considered the Appellants Reply Address and rightly found it to be re-argument of the motion to dismiss the committal proceedings, so the issue of denial or deprivation of the right to fair hearing did not arise as the Appellants Reply Address was considered in the Ruling by the lower Court.
In the Appellants Reply brief, it is contended that the facts of the Odu v. Jolaosho case (supra), are different in that a firm and positive order was made by the Court and the appeal was on bail in which there was conclusion that the Appellant therein was contemptnor, unlike the Appellant here who filed counter-affidavit to the motion for the committal proceedings. The learned Silk for the Appellant maintains that the originating processes for the determination of the Appellants objection to the lower Courts jurisdiction to adjudicate over the committal proceedings was the Form 48 and that Order 35 of the lower Court Rules does not avail the 1st-6th Respondents as the undertaking was not with the Court but a private contract between them and Appellant.
All other arguments in the Appellants Reply brief on the Respondents Issues are simply round and about, repetitive re-arguments and further arguments of the points already canvassed in the Appellants brief which are not on new points arising from the Respondents brief, the only purpose for which an Appellants Reply brief is permitted to be used under Order 19, Rule 5(1) of the Court of Appeal Rules, 2016. What the Appellants Reply brief contains are largely replies, answers or reactions to all the points canvassed in the Respondents brief on Issue 1; paragraph by paragraph as if it was a Respondents brief and in complete disregard of the limited purpose and object for which it is provided for in the Rules of the Court. As a reminder, the provisions of Order 19, Rule 5(1) of the Court of Appeal Rules, 2016 are that: –
The Appellant may also, if necessary, within fourteen days of the service on him of the Respondents brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondents brief.
(underline provided for emphasis)
From the simple, clear and straight forward language and tenor of these provisions, a reply brief is to be necessary and so be filed by an Appellant in an appeal for the sole and only purpose of strictly dealing with all new points arising from the Respondents brief.In that con, where no new point arises or was raised in the Respondents brief in answer to the points or issues canvassed in the Appellants brief, then the filing an Appellants Reply brief does not and will not arise for it to become necessary in the appeal.
In such a situation, a Reply brief becomes unnecessary, undesirable of no judicious use and so otiose as it cannot and should not be used as an avenue for repetition, re-arguments, further arguments or as a repair kit; how be it, on points or issues already canvassed in the Appellants brief, which would be discountenanced by the Court even if made, anyhow. See Olafisoye v. FRN (supra); Mozie v. Mbamalu (2006) 15 NWLR (1003) 466; Ochemaje v. State (2008) ALL FWLR (435) 1661 @ 1681;Ojiogu v. Ojiogu (2010) 9 NWLR (1198) 1; Duzu v. Yunusa (2010) 10 NWLR (1201) 80; Oshoboja v. Amida (2009) 18 NWLR (1172) 188; Dogo v. State (2013) LPELR-20175(SC); Ikine v. Edjerode (2001) 12 SC (Pt. II) 94.
RESOLUTION:
The complaint under Issue 1 by the Appellant is that its right to fair hearing was breached on the ground that the lower Court made pronouncement on the substantive issue in the committal proceedings while dealing with the objection to its jurisdiction. Page 1157 of Vol. III of the Record of Appeal was referred to as the finding or pronouncement made by the lower Court where it stated: –
It is also true that a perusal shows that the said Order in respect of which the Appellants gave their undertaking of 17/12/2012 (which they have breached following the Judgment Creditors demand and instructions both dated 7/7/2017 (Exhibit 1A8 and 1A8a attached to their Motion on Notice for Committal in these proceedings) states, inter alia, thus:
That a Conditional Stay is hereby granted the Applicant to the effect that the Applicant (sic) are succeed in part, the Applicant shall provide a Bank guarantee in the judgement sums in favour of the Plaintiff/Judgment Creditor/Respondent within 21 days from today the 5th day of August, 2010.
The statement was made by the lower Court in a Ruling on the motion dated the 19th but filed on 20th March, 2018 by the Appellant for an order to dismiss the suit; that is, the committal proceedings initiated by the 1st-6th Respondents against the Appellant and the 7th & 8th Respondents. As stated earlier in this judgement, Rulings on the Appellants motion filed on 20th March, 2018 and the 1st-6th Respondents Motion filed on 19th March, 2018 for the committal proceedings were delivered on the same date and day; the 6th June, 2018, though separately, so it appears.
By way of a general restatement of the principle of law, as stated and restated in the judicial authorities cited (supra) by learned Senior Counsel for the parties on the point, a Court is not supposed to and should not make pronouncement at an interlocutory stage, that would tend to or have the consequential effect of prejudging material and substantive issues to be determined in a case. The reasons for this position of the law is that parties have the right to be heard on all material issues they have joined in a case and any pronouncement by a Court that may be prejudicial to the interests of any of the parties before they have or are afforded adequate and reasonable opportunity to be heard or of a hearing thereon, would violate, breach and contravene their constitutionally guaranteed right to a fair hearing in the determination of their civil rights and obligations by the Court.In addition to the cases cited earlier, see Olaniyi v. Aroyehun (1991) 5 NWLR (194) 652; NNPC v. Famfa Oil Ltd (2009) 6 MJSC, (Pt. II) 30; Okotie-Eboh v. Manager (2004) 11-12 SC, 174; Frinam Nig. Services Ltd v. Ukueku (2006) ALL FWLR (293) 296; Agip Nig. Ltd. v. Agip Petroli Intl (supra); Eregbowa v. Obanor (2000) 16 NWLR (1218) 33.
The law is also settled firmly, that
(a) when and where the jurisdiction of a Court to adjudicate over a case arises or is raised in the course of proceedings before it, the issue or objection to the jurisdiction should be settled first at the earliest opportunity before proceeding to consider and determine the other issues on the merit. The ground for this position is the law that any pronouncement made, decision reached and all proceedings conducted by a Court without the requisite jurisdiction, are rendered a nullity since jurisdiction is not only intrinsic, but extrinsic to judicial proceedings being the lifeblood thereof.Bronik Motors Ltd. v. Wema Bank Ltd (1983) 7 SC, 158; Okoye v. N. C. & F. C. Ltd (1991) 7 SC (Pt. III) 33, (1991) 6 NWLR (199) 501; Utih v. Onoyivwe (1991) 1 SCNJ, 25, (1991) 1 SC (Pt. 1) 61, (1991) 1 NWLR (166) 166; Odofin v. Agu (1992) 1 NWLR (229) 350; Sken Consult Nig. Ltd. v. Ukey (1981) 1 SC, 6; Madukolu v. Nkemdilim (1962) 2 SCNLR, 341.;
(b) a Court would have the requisite jurisdiction and so is competent to adjudicate over a matter or case when
(i) it is properly constituted in terms of number and qualification of membership;
(ii) the subject matter of dispute in the action is within its jurisdiction;
(iii) the matter or case was initiated or brought by due process of the law upon fulfillment of any condition precedent to the exercise of the jurisdiction; and
(iv) there is no feature in the case which prevents the Court from exercising its jurisdiction. Madukolu v. Nkemdilim (supra) also reported in (1962) AANLR, 587; Ajao v. Alao (1986) 1 NWLR (45) 802; Sken Consult Nig Ltd v. Ukey (supra); Oke v. Aiyedun (1986) 1 NWLR (23) 548, (1986) LPELR-2427(SC); Mark v. Eke (2004) 5 NWLR (865) 54; Plateau State v. A. G. Federation (2006) 3 NWLR (968) 346; A. G., Anambra v. A. G. Federation (1993) 6 NWLR (302) 700; Sea Trucks Ltd. v. Anigboro (2001) 1 SC, 56.
(c) in order to determine an objection to its jurisdiction, the relevant and material processes or documents a Court should resort to are the writ or other initiating process and the statement of claim. In other words, in the determination of whether or not it possesses the requisite jurisdiction to adjudicate over a matter or case, a Court would look at and consider only the claims of the claimant or plaintiff. That it is claimant/plaintiffs claims that determine whether or not a Court would have jurisdiction to entertain and adjudicate over a case or matter.Adeyemi v. Opeyori (1976) 9-10 SC, 31 @ 41; Opiti v. Ogbeiwi (1992) 4 NWLR (234) 184 @ 195; Tukur v. Govt., Gongola State (1989) 4 NWLR (117) 517; O. H. M. B. v. Garba (2002) 14 NWLR (788) 538 @ 563; Onuorah v. K. R. P. Co. Ltd (2005) 2 SC (Pt. II) 1, (2005) 6 NWLR (925) 393); Adelusola v. Akinde (2004) 12 NWLR (887) 295 @ 312; Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (1157) 83; Associated Discount House Ltd. v. Amalgamated Trustees Ltd (2006) 10 NWLR (989) 635.
The grounds relied upon by the Appellant for the objection in the motion dated 19th March 2018 and filed on 20th March 2018 were that: –
(i). There is no Order of Court against the applicants in respect of which they can be in breach of and/or contemptuous of.
(ii) There is no Order against the applicants which they have violated or in respect of which they can be liable for commencement of contempt proceedings.
(iii) The applicants were not parties to the Order of this Honourable Court made on 5th August, 2010, referenced in Forms 48 and 49, issued in this suit on 26th February, 2018 and 2nd March, 2018, respectively.
(iv) The Form 49 issued in this suit is incompetent, not having annexed with it any affidavit or any Motion on Notice supported by any affidavit.
(v) Forms 48 and 49 issued herein in purported execution of the Order of this Honourable Court made on 5th August, 2010, is statute-barred.
(vi) This action is entirely incompetent and in breach of applicants right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(viii) This Honourable Court is divested of the jurisdiction to entertain this suit.
(ix) It is in the interest of justice that the instant application is granted.
Apparently, the suit which the Appellant sought the lower Court to dismiss, was the one initiated by the 1st-6th Respondents vide the motion on ex-parte dated and filed on the 19th February, 2018 which was predicated on an Administrative Application from the Learned SAN for the 1st-6th Respondents to the Registrar of the lower Court for the issuance of Form 48 against the Appellant and the 7th & 8th Respondents, dated the same 19th February, 2018.It was the grant of ex-parte motion on 26th February, 2018 by the lower Court that led to the service of the Forms 48 and later 49 on the 7th & 8th Respondents at the registered office of the Appellant or by publication thereof in a National Daily.The objection to the lower Courts jurisdiction by the Appellant was therefore in respect of the 1st-6th Respondents motion for committal of the 7th and 8th Respondents which was filed on the 19th March, 2018 and heard together with the Appellants motion filed on 20th March, 2018. In the case of Henshaw v. Abia (2012) LPELR-19714(CA) it was held that: –
Jurisdiction to entertain committal proceedings by Court of law is commenced by an application to the Registrar of the Court that issued order for the issuance and personal service of Forms 48 together with a copy of the enrolled order of the Court.
The originating process for the commencement or initiation of committal proceedings for contempt is the administrative application made to the Registrar of Court for the issuance and service of Form 48 on a contemptnor. The issuance of Forms 48 and 49 for the committal proceedings was done by the Registrar of the lower Court, administratively and the motion for committal by the 1st-6th Respondents commenced the committal proceedings against the Appellant and the 7th & 8th Respondents.The motion filed by the Appellant on 20th March, 2018 was in fact, an objection to the lower Courts jurisdiction to adjudicate over the 1st-6th Respondents motion of 19th March, 2018 for committal on the grounds set out thereon.
The originating process which the Appellant objected to by the motion of 20th March, 2018 was the 1st-6th Respondents motion of 19th March, 2018 for committal proceedings against the 7th and 8th Respondents which was predicated on the Forms 48 and 49 issued by the Registrar of the Lower Court. it was the motion for committal proceedings which the Appellant said by the motion of 20th March, 2018 that the Lower Court lacks the requisite jurisdiction to adjudicate upon on the aforenamed grounds. In the determination whether it possesses the jurisdiction to adjudicate over the motion for committal proceedings, the relevant processes that should be looked at and considered by the Lower Court are the grounds of the objection and the Affidavit evidence in support of both the objection as well as the motion.The Lower Court has the power, was entitled to, had the duty to and was right to have had resort to, used and relied on the Affidavit in support of the 1st-6th Respondents motion for committal proceeding in the determination of the Appellants objection to its jurisdiction to adjudicate over the said motion. In the determination of the objection, the Appellants Affidavit in opposition to the motion for committal was irrelevant and of no moment since the only relevant and material process for consideration at that stage, were facts as deposed to in the Affidavit of the 1st-6th Respondents motion for committal and the applicable or/and rules of Court.However, because facts of grounds of the Appellant?s objection and those in support of the motion for committal are the same or at least substantially and materially so, and the objection and the motion were heard or taken together and Rulings thereon delivered on the same date, comments or observation made by the Lower Court in the course of writing the Rulings on either the objection or motion in respect of each, after hearing the parties on both, cannot form a reasonable basis or ground for the allegation of the breach of the right to fair hearing by any of the parties. It must be remembered that the right to a fair hearing guaranteed by the provisions of Section 36(1) of the Constitution simply requires that parties be provided and afforded equal and reasonably adequate opportunity and time to be heard on any material issue of dispute to be judicially determined or decided by a Court of law or other tribunal established by law, in the determination of their civil rights and obligations.See Baba v. N.C.A.T.C. (1991) 7 SCNJ, 1, (91) 7 SC (Pt. 1) 58, (91) 5 NWLR (192) 388, Adigun v. A.G., Oyo State (1987) 1 NWLR (53) 678, Mohammed v. Olawunmi (1990) 4 SC, 40, (1990) 1 NWLR (133) 458, Kotoye v. CBN (1989) 1 NWLR (98) 419, (89) ALLNLR, 76, Victino Fixed Odds Limited v. Ojo (2010) 8 WLR (1197) 486, LPDC v. Fawehinmi (1985) 1 NWLR (2007) 300.
It is not the complaint of the Appellant under issue 1 that it was denied the right to be heard in the determination of both its objection to and the motion for committal and before the Rulings thereon were delivered by the Lower Court.
The comment by the lower Court at page 1157 of Vol. III of the Record of Appeal said to be Definitive finding and complained of by the Appellant was made in course of reviewing the Affidavit evidence along with the Exhibits attached thereto, in support of the motion for committal for which a separate Ruling was delivered. The comment or observation cannot, by any reasonably tenable legal argument, be said to have prejudged the motion for committal and to constitute a breach the Appellants right to fair hearing in the determination thereof.The Appellant was not only afforded the opportunity to, but it was fully utilized to argue and be heard on the merit of the motion for committal before the Ruling thereon, was delivered.Because the Appellants objection was to the motion for committal, as stated earlier, the observation or comment by the Lower Court was/is not one which prejudged the motion for committal.
In addition, in the determination of the objection, which was taken along with the motion for committal, the Lower Court was entitled to refer to, make use of and rely on the Affidavit evidence filed by the parties in support of both even if they were filed separately. Like I stated earlier, the motion filed by the Appellant on 20th March, 2018 was in fact an objection to the motion for committal and not a distinct or different motion with or on another issue that was not related to the motion for committal, notwithstanding the nomenclature or title given to it or the fact that it was filed separately. As is evident in the Ruling on the Appellants motion, the Lower Court referred to and used the Affidavit evidence filed by the parties in support of their respective positions on the motion for committal and the objection thereto by the Appellant and the Appellant cannot seriously be heard to say that the reference by the Lower Court to the Exhibits attached to the 1st-6th Respondents Affidavit in support of the motion for committal, constituted an infringement or breach of its right to fair hearing in the determination of the objection to the motion for committal. In the face of the record of the proceedings at the hearing of the objection by the Appellant and the motion for committal, the contention of the Appellant that its right to fair hearing was breached by reference to the Exhibits attached to the Affidavit in support of the motion for committal in the Ruling on the Appellants motion of 20th March, 2018, is not legally tenable. I find no merit in the arguments of the Appellant on its issues 1 and 3 and resolve them against it.
The arguments of the Appellant on issue 2 are that enforcement proceedings anchored on Form 48 are sui generis and governed by the Sheriff and Civil Process Act (SCPA) and not by the Rules of Court. That any non-compliance with the SCPA vitiates the entire proceedings, on the authority of inter alia, FCDA v. Koripamo-Agency (2010) LPELR-4148 and Mofunanya v. Nwadiogbu (2017) LPELR-43079.
It is contended that since the Appellant was not a party to the suit and no order was made or directed at it, the Lower Court was wrong to have validated the Form 48 on the ground that it was a vehicle for bringing to their attention a stern warning of the consequences of their breach of the undertaking which they made pursuant to their orders of this Court made on 5th August, 2010. Order IX, Rule 13 of the judgement Enforcement Rules was cited and it is said that committal for contempt can only arise under Section 72 of SPCA, if any person refuses or neglects to comply with an order made against him as indicated in the heading to the section; which shows the intention of the legislature. Skye Bank v. Iwu (2017) 16 NWLR (1590) 24 was cited on the argument and it is further argued, on the authority Berliet Nigeria Limited v. Kachalla (1995) 9 NWLR (420) 478 @ 500, that the express mention of order in Section 72 of SPCA and Order IX Rule 13, excludes any other thing apart from an order of Court to be enforceable vide Form 48.According to the learned SAN for the Appellant, since no order of Court was directed at the Appellant which it breached or neglected to comply with, the Form 48 and contempt proceedings were not commenced by due process of the law and so incompetent as it could not be used for the enforcement of an alleged breach of an undertaking, citing Madukolu v. Nkemdilim (1962) 1 ALLNLR (Pt. 4) 581 @ 595 and Idika v. Offia (2017) LPELR-42280 (CA), among other cases.
The Court is Aurged to resolve the issue in Appellants favour.
For the 1st-6th Respondents, it is submitted that the Form 48 served on the Appellant and 7th and 8th Respondents in all material respect, is consistent with the format contained in the SPCA and that although contempt proceedings are sui generis, by the provisions of Section 93(1) and (2) of the SPCA and Order XII, Rule 2(1) and (2) of the Judgment Enforcement Rules (JER), variation in the Forms contained in the schedule thereto, is provided for and allowed.Section 136 of the Administration of Criminal Justice Act (ACJA) was referred to on the effect of an irregularity, and it is contended that Forms provided for use under the SPCA may be varied as the circumstances of a case may require.
The Court is urged to so hold and discountenance the arguments of the Appellant.
Relying on Ape v. Olomo (2010) LPELR-4988 (CA), Davies v. Odofin (2017) LPELR-4171 and Daniel v. FRN (2014) 8 NWLR (1410) 570, it is further submitted that the Lower Court was right to have held that Form 48 is the proper vehicle for contempt proceedings for breach of the undertaking made pursuant to its order of 5th August, 2010 which constituted an act calculated to lower the authority and dignity of the Lower Court.
The Court is urged to hold that the Appellant has failed to show that proper procedure was not followed in the proceedings before the Lower Court.
In the Appellants Reply brief, it is maintained that the SPCA and JER do not provide for breach of an undertaking outside the express provision of order given or made by a Courtand that the ACJA does not apply to contempt which judicial authorities say that the slightest technical error in contempt proceedings suffices to invalidate same.
Other arguments on the issue in the Appellants Reply brief are further arguments which are not answers to new point/s arising or raised in the 1st-6th Respondents brief.
RESOLUTION:
From the arguments of the Appellant on the issue, the pith of the complaint is that committal proceedings by use of Forms 48 and 49 cannot be properly, in law, commenced for the breach of and enforcement of an undertaking under Section 72 of the SPCA and the JER which expressly provide for refusal or neglect to comply with an order of Court.That the Form 48 under the Section does not admit of an undertaking or bank guarantee.
Perhaps, I should state that committal proceedings in a case are initiated or commenced against a party who is alleged to be in contempt of an order validly made and competently issued and directed at him, but which he deliberately and willfully refuses or neglects to comply with or obey without any legally acceptable excuse.
Contempt of a Courts order, may arise in manifold or a variety of circumstances and may be described as any conduct, act or omission which tends to undermine and to bring the authority and dignity of a Court of law and the administration of justice, generally, to disrespect.
In the case of Abbas v. Solomon (2001) FWLR (67) 847, (2001) 15 NWLR (735) 114, Iguh, JSC had said that:-
There can be no doubt that it is a civil contempt of Court to refuse or neglect to do an act required by a judgement or order of the Court within the time specified in the judgement or order or within the time as abridged or provided for under the rules of Court or to disobey a judgement or order requiring a person to abstain from doing a specified act or to act in breach of an undertaking given to the Court by a person, on the faith of which the Court sanctions a particular course of action or inaction. Where, therefore, any person refuses or neglects to comply with an order made against him by a Court of competent jurisdiction other than for payment of money, the Court has ample jurisdiction pursuant to the provisions of Section 72 of the said Sheriffs and Civil Processes Act to order that he be committed to prison and detained in custody until he has purged his contempt.
See also Awobokun v. Adeyemi (1968) NWLR, 289, Candide-Johnson v. Edigin (1990) 1 NWLR 659, Ezeji v.Ike (1996) 1 NLR, 173, (1997) 2 NWLR (486) 206, Ejembi v. A.G., Benue State (2003) 16 NWLR (846) 337, Oko v. Aganyi (supra), Onocha v. A.G., Delta State (2013) LPELR-20781-(CA).
The principal object or aim of the law of contempt of Court is therefore to uphold and ensure smooth and effective administration of justice by protecting and preserving the authority and dignity of the Court in order to maintain the confidence of the public in the judicial process.See Candide-Johnson v. Edigin (supra), Odu v. Jolaoso (supra) 257 (CA), Shugaba v. UBN, PLC (1999) 11 NWLR (627) 459, Inland Bank Nigeria Plc v. Ruhanti Nigeria Enterprise Limited (2010) LPELR-4324 (CA), Mobil Oil Nigeria Limited v. Assan (1995) 8 NWLR (412) 129, Fame Publications Limited v. Encomium Ventures Limited (2000) 8 NWLR (667) 105.
In the Appellants case, the parties do not dispute that the Appellant issued a bank guarantee as an undertaking to pay a judgment debt entered in favour of the 1st-6th Respondents by the Lower Court, in fulfillment of a condition for the stay of execution of the said judgement.Undoubtedly, the judgement entered in favour of the 1st-6th Respondents was for the payment of various sums of money for damages against the SPDCN Limited and 2 others and so it was a monetary judgement. On the application of SPDCN Limited, the Lower Court granted a conditional order for stay of execution of the judgement pending appeal, on the provision of a bank guaranty by SPDCN to secure the payment of the judgement debt in the event that the appeal failed.
The Appellant issued a Bank Guarantee dated the 17th December, 2012 to secure the payment of thejudgement debt is satisfaction of the only condition imposed by the Lower Court for the stay of execution of its judgement for the payment of the debt.The Bank Guarantee issued by the Appellant, on its Letter Headed Paper, for the stay of execution of the Lower Courts judgement appears at pages 44-5 of Vol. of the Record of Appeal and is in the following terms:-
THIS GUARANTEE is given this 17th day of December, 2012 by FIRST BANK OF NIGERIA PLC, No. 35 MARINA, Lagos (the Bank) to the above named persons (the Respondents) at the instance of our Customer, SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (SPDC) of SHELL INDUSTRIAL AREA, RUMUOBIAKANI, PORT HARCOURT, RIVERS STATE, in the sums of (1) N1,772,450,585.00 as special damages, (2) interest for delayed payment for 5 years from 1996 at 25% per anuum (N5,407,777,246.00), (3) 25% of the said sum till the date of judgement and 10% of the Judgement debt till payment, and (4) Billion as general damages, as contained in the judgment of the Federal High Court, Asaba Division dated 14th June 2010 in Suit No. FHC/ASB/CS/57/2010 formerly Suit No. HHCPH/CS/221/2001 (Chief Isaac Osaro Agbare & 9 Orders vs. SPDC & 2 Ors) now the subject of pending appeal in Appeal No. CA/PH/396/2012 formerly Suit No. CA/B/291/2010.
WHEREAS:
(1) The Federal High Court Asaba Division (Lower Court) had given judgement in Suit No. FHC/ASB/CS/57/2010 formerly FHC/PH/CS/231/2001 (Chief Isaac Osaro Agbara & 9 Ors vs. SPDC & 2 Ors) in the sums of (1) N1,772,460,585.00 as special damages, (2) interest for delayed payment for 5 years from 1995 at 25% per annum (N5,407,777,248.00), (3) 25% of the said sum till the date of Judgement and 10% of the Judgement debt till payment, and (4) N10Billion as general damages (Judgement Sums) against SPDC and the Co-Defendants.
(2) SPDC and the said Co-Defendants (herein after called the Appellants) have appealed against the said judgment and applied for a stay of enforcement by any other means pending the determination of the appeal and the Lower Court granted a stay of execution of the said Judgement on condition that a Bank Guarantee for the Judgement Sums be provided in favour of the Respondent.
(3) The Appellants being dissatisfied with the condition for stay granted by the Lower Court applied to the Court of Appeal for a variation of same.
(4) By its ruling dated 3rd December 2012, the Court of Appeal, Port Harcourt Judicial Division in Suit No. CA/B/291M/2010 dismissed the application for variation and affirmed the decision of the Lower Court that a Bank Guarantee for the judgement sums be provided in favour of the Respondents, and also granted the appellants 21 days to provide the Bank Guarantee.
(5) SPDC requested and the Bank agreed to issue the said Guarantee on its behalf in favour of the Respondent.
HOW THIS GUARANTEE WITNESSES AS FOLLOWS:
Pursuant to the foregoing, the Bank hereby guarantees to pay to the Respondents the Judgement Sums only if the aforesaid appeal to the Court of Appeal fails and the Appellants become liable in law to pay the Judgement Sums therein.
This Guarantee and the Banks liability thereunder shall be subject to all due process of law and payment by the Bank under this Guarantee will only be made upon receipt by the Bank of The Respondents written demand accompanied with duly certified copy of the judgment of the Court of Appeal, stating that the Judgement Sum is due and payable by the Appellants in the matter.
This Guarantee shall become operative and enforceable from the 17th day of December, 2012 and shall remain valid until 14 days after the determination of the aforementioned appeal at the Court of Appeal, after which it shall terminate, whether or not the original Bank Guarantee is returned to the Bank for cancellation. PROVIDED however that the Guarantee shall immediately lapse and become viod if the said appeal is successful.
This Guarantee is limited to the specific Judgment Sums specified above, it is not a continuing Guarantee and shall not extend to any other sum payable by the Appellants to the Respondents, neither shall it extend to any other transaction between them.
This Guarantee shall be governed by and subject to all the laws of the Federal Republic of Nigeria and shall not be construed to fetter or limit the Constitutional rights of the parties, including their right of appeal.
Dated this 17th day of December, 2012.
The Common Seal of
FIRST BANK OF NIGERIA PLC
Was hereunto affixed in the presence of:
___________ —————————-DIRECTOR SECRETARY
Eventually, when the Guarantee became due for discharge by the Appellant upon the fulfillment and satisfaction of all conditions and terms set out therein, the Appellant refused or neglected to meet the obligations it freely and voluntarily agreed and undertaken to do thereby, to pay the judgement debt entered in favour of the 1st-6th Respondents by the Lower Court.
The word Guarantee was defined by Akpata, JSC in Royal Exchange Assurance Nigeria Limited v. Aswani ile Industries Limited (1992) 3 NWLR (227) 1 @ 13, as follows: –
A guarantee is a written undertaking made by one person to a second person to be responsible if a third person fails to perform a certain duty.
See also Amede v. UBA (2007) LPELR-90-43 (CA),Olam Nigeria Limited v. Intercontinental Bank Limited (2009) LPELR-8275) (CA), Nwankwo v. Ecumenical Dev. Co. Society (2002) 1 NWLR (749) 573.The Guarantee issued by the Appellant to secure the payment of judgment debt against the SPDCN Limited in the event that the appeal against the judgement of the Lower Court failed, was an undertaking, a formal promise or pledge to pay the debt once the appeal the SPDCN Limited failed and upon the fulfillment of the terms and conditions set out therein.
The question that arises is whether the guarantee, undertaking, promise or pledge given, issued or made by the Appellant for the payment of the judgement debt and upon which the execution of the judgment by Lower Court was stayed, is enforceable by way of contempt proceedings under the law.
The relevant laws for the purpose of the appeal are the SCPA, JER and the Rules of the Lower Court. The committal proceedings commenced or initiated by way of Form 48 against the Appellant were brought pursuant to Order 35, Rules 1 and 2 of the Lower Court, 2009 as indicated on the 1st-6th Respondents motion of 19th March, 2018. The provisions of Order 35, Rules 1 and 2 are in the following terms:
(1) The power of the Court to punish for contempt of Court may be exercised by an order of committal.
(2) An order of committal may be made by the Court where contempt of Court.
(a) is committed in connection with
(i) any proceeding before the Court.
(ii) Criminal proceedings.
(b) Is committed in the face of the Court, or consists of disobedience to an order of the Court or a breach of an undertaking to the Court, or
(c) Is committed otherwise than in connection with only proceeding.
(d) An application for an order of committal shall be made to the Court by motion on notice supported by an affidavit and shall state the grounds of the application.
These provisions are in simple, unambiguous and straightforward words and engage such that by their plain and ordinary purport, they say in Rule 1(2)(b) that an order of committal may be made by the Lower Court where the contempt of Court consists of disobedience to an order of the Court or a breach of an undertaking to the Court.
In Sub rule (2), an application for an order of committal shall be made to the Lower Court by motion on notice supported by an affidavit, stating the grounds upon which it was promised.
Under the provisions of the Rules, the contempt of Court for which an application may be made to the Lower Court for a committal order, shall inter alia, consist of disobedience to an order of the Lower Court or a breach of an undertaking made to the Court. These provisions show clearly that disobedience to an order of Court is not the same and is different and separate from the breach of an undertaking made to the Court in the course of proceedings of a case either by a party thereto or some other person/s and that a committal order may be made for either on application, as provided therein. It is beyond argument therefore that by the Rules of the Lower Court the breach of an undertaking duly made to that Court in the course of the proceedings of a case, may and can be enforced by way of contempt proceedings against the person/s who made the undertaking and breached same as may be determined by the Lower Court. Although the 1st-6th Respondents motion for committal was based on the Forms 48 and 49 which are provided for in the First Schedule to the SCPA for committal for disobedience to an order of Court, the Forms and their content are not sacrosanct for the purpose of committal proceedings and orders.Section 93 of the SCPA, with the Heading Use of forms in First Schedule, provides that: –
93(1) Subjection to the express provisions, if any, of the Rules, the forms contained in the First Schedule to this Act may, in accordance with any instructions contained in the said forms and with such variations as the circumstances of the particular case may require, be used in the cases to which they apply and, when so sued, shall be good and sufficient in law.
(2)The forms in the First Schedule may be added to, repealed, replaced or varied by rules of Court in all respects as if they had originally been so made.
By these provisions, Forms 48 and 49 may and can properly and validly be used and employed with such variations; added to, as the circumstances of the particular case may require or varied by the rules of Court in all respects as if they had originally been so made, in committal proceedings before the Lower Court.
What the authorities on strict compliance with the requirements of committal proceedings say and show is that all procedural steps in the process provided for in the SCPA, JER and Rules of Court must be complied with before a committal order for contempt could validly be made against an alleged contemptnor. In the case of Nwosu v. Nzeadibe (2010) LPELR-4897 (CA) (cited in the 1st-6th Respondents brief) Owoade, JCA, enumerated the requisite steps to provided for by the SPCA, JER and Rules of Court to be complied with to ground valid committal proceedings and order against an alleged contemptnor when he said: -Stage 1
The first thing to do is the endorsement of the order of Court word to word on Form 48. See e.g. the cases of Enabinive v. Atambo (1967) NWLR 253 (per Obaseki J, as he then was) and Ojemen v. Momodu II (supra).
Stage II
The next duty of a person who wants to enforce Order is to ensure that Form 48 endorsed with the Court Order is formally served on the defendant personally, preferably by the Bailiff who must file a copy of proof of service. See e.g.Chief John Ikimi v. Godwin Omamuli (1995) 3 NWLR (383) 355 at 358-360.
Stage III
If on the service of Form 48 the contemptnor still refuses to comply with the Court Order, the applicant can after 2 days of service of Form 48 apply to the Registrar for Form 49 to issue on the contemptnor.The conditions stated earlier in relation to the service of Form 48 also apply to service of Form 49. See e.g. Chief Darby Akpan v. Chief Effiong Akpan (1996) 7 NWLR (Pt. 462) 620.
Stage IV
After service of Form 49, the judgement creditor will then approach the Court by a Motion on Notice for committal supported by affidavit brought under the Sheriffs and Civil Process Law, the Judgement Enforcement Rules made thereunder and under the like provisions of Order 42 Rule 1(2) of the Uniform Procedure Rules, 1988.
The bottom line in the requirement that all procedural steps must be strictly complied with in committal proceedings is that the alleged contemptnor be given reasonably adequate notice of alleged act, conduct or omission in disobedience of an order of the Court which constituted contempt and the penal consequences of the continued refusal or neglect to obey or comply with the said order and the opportunity to a fair hearing. This position of the law inured from the constitutional guarantee of the personal liberty of every person as enshrined (now) in Section 35 of the 1999 Constitution which in Subsection (1)(b), permits the deprivation of such liberty for reason of failure by a person to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him by law.
Once the procedural steps were fully complied with in the initiation or commencement of committal proceedings against an alleged contemptnor and he was adequately notified of the alleged conduct, act or omission which constituted the disobedience to an order of a Court in clear terms and given reasonable opportunity of a fair hearing, the proceedings would be valid in law under the Constitution, SCPA, JER and relevant Rules of Court.
In the present appeal, it is not the case of Appellant that any of the procedural steps set out above was not taken or complied with in the committal proceedings before the Lower Court and since the provisions of Section 93 of the SCPA and Order 35, Rule 1(2)(b) of the Rules of the Lower Court provide for variations of Forms 48 and 49 and for committal order for breach of an undertaking made to the Lower Court respectively, the Form 48 can be and was validly used for the breach and enforcement of the undertaking/bank guarantee made and issued by the Appellant to the Lower Court to secure the order for stay of execution of the judgement in question and payment of the judgement debt.
Perharps, I should point out that the Appellant though not a party to the application for stay of execution by SPDCN in respect of which the Order dated 5th August, 2010 was made by the Lower Court, the Bank Guarantee was an undertaking made to the Lower Court by the Appellant on behalf of SPDCA which was ordered to provide it as a condition for the stay order made in the course of proceedings by the Lower Court. This was clearly and unequivocally stated in paragraph 5 of the Bank Guarantee set out earlier. In that regard, the Appellant cannot now be heard to say that it did not make any undertaking to the Lower Court in respect of the conditional order for stay made on 5th August, 2010 for SPDCN to provide for such guarantee or that no order was made or directed at it by the Lower Court since it was not a party to the case between SPDCN and 1st-6th Respondents or the application for stay. The judgement against SPDCN was only stayed on the provision of the Bank Guarantee by the Appellant on behalf of SPDCN, who thereby made itself and became a subject of the said order.
I should also say that although the Committal proceedings were initiated by use of the Forms 48 and 49 prescribed by the SCPA, since they were modified and varied to suit the peculiar circumstances of the case under the Rules of the Lower Court pursuant to Section 93 of the SCPA, the Rules of that Lower Court rather than the provisions of the SCPA were to govern and regulate the proceedings in the case which were brought under the Rules as shown earlier. It is only when Forms 48 and 49 were used without modification or variation to initiate committal proceedings that the provisions of SCPA, including Section 72 thereof, would apply to regulate them for the purpose of the order the Court could make therein.
In this regard, the learned SAN for the 1st-6th Respondents is right that the facts in the case of Oko v. Aganyi (supra) relied on by the Appellant for the argument that committal proceeding could not be used to enforce an undertaking, are different,for among other reasons, there was no undertaking by the Counsel in that case to found the enforcement by committal proceedings. In addition, the High Court Rules in that case did not contain similar provisions as in Order 35, Rule 1(2) (b) of the Rules of the Lower Court which allows or permits committal proceedings for the enforcement of an undertaking made to the Court. The case is not helpful to the facts and circumstances of the Appellants case.
I find no merit in the arguments of the Appellant under the issue and resolve same against it.
The submissions of the Appellant under issue Four are to the effect that the Lower Court failed to resolve the fundamental jurisdictional issues raised before it when it described the Appellants motion as premature.
Akere v. Governor, Oyo State (2012) 12 NWLR (1314) 240 @ 281 on the duty of a Court to consider a preliminary objection challenging the competent of its process, first, as an issue of jurisdiction, and other cases, including Odofin v. Agu (1992) 3 NWLR (229) 350 @ 364 on the fundamental and crucial nature of the issue of jurisdiction being the life blood of the adjudication process, were cited. The Lower Court is said to have considered the 1st-6th Respondents motion for committal in the determination of the Appellants motion/objection dated 19th March, 2018 which ought to have been determined first before a consideration of the motion for committal.The case of Fadare v. A.G. Oyo State (1982) NSCC, 52 @ 60 on when a cause of action arises in a case was referred to and the Court is urged to resolve the issue in Appellants favour.
The arguments for the 1st-6th Respondents on the issue are that the Lower Court did consider all the issues raised and argued by the Appellant in the motion/objection to the motion for committal in its Ruling at pages 1157-61 of Vol. II of the Record of Appeal and it is contended that the fact that the Lower Court went on to state that the Appellants motion was pre-mature, was a mere suplusage. In the alternative, it is submitted that even if the remark was wrong, the error is not enough to vitiate the Ruling since all the issues raised were effectively and effectually dealt with, and reliance was placed on Osareren v. FRN (2018) LPELR-43839(SC). The Court is urged to discountenance the submissions of the Appellant.
RESOLUTION:
I have earlier set out the grounds upon which the Appellants motion/objection filed on 20th March, 2018 was premised.In the Appellants Written Address in support of the motion, also filed on the 20th March, 2018; which appears at page 616 625 of Vol. II of the Record Appeal, a sole issue was formulated for determination in the motion/application at page 617 as follows:-
Considering the Forms 48 AND 49 filed in this Suit vis–vis the applicable statutory provisions on contempt proceedings, whether this suit is not liable for an Order of dismissal.
This issue was canvassed under subheads (sub-issues) couched in the following terms: –
(1) ORDER OF 5TH AUGUST, 2010, ATTACHED TO FORM 48 IS NOT ENFORCEABLE BY CONTEMPT PROCEEDINGS, at page 618-620,
(2) APPLICANT NOT ANSWERABLE IN COMMITTAL PROCEEDING IN RESPECT OF ORDER MADE ON 5TH AUGUST, 2010 AND ATTACHED TO FORM 48, at page 621,
(3) NO AFFIDAVIT AND/OR MOTION ON NOTICE SERVES ALONGSIDE FORM 49, at page 622-624,
(4) ISSUANCE OF COMMITTAL PROCEEDINGS IN THIS SUIT IN RESPECT OF THE 5TH AUGUST, 2010 ORDER-STATUTE BARRED, at page 624-625.
A calm reading of the Ruling on the motion/objection would readily reveal that all the material points canvassed by the Appellant under the sole issue and the sub issues before the Lower Court were individually and specifically considered and pronounced on by it even though it eventually stated that the motion/objection was premature and struck it out. The Lower Court did not fail, but dutifully considered the relevant and material points/issues raised by the Appellant which formed the foundation of the challenge to the competence of the committal proceedings before it and effectually made specific pronouncement on each of them.
In the premises, the Lower Court cannot rightly be accused of failure to resolve the sole issue of the competence of the committal proceedings which automatically translated to a challenge to its own jurisdiction to adjudicate over it.The mere fact that the motion/objection was subsequently pronounced premature and struck out did not affect or change the record that all the points canvassed by the Appellant for the objection, or challenge to the Lower Courts jurisdiction were, in fact and deed, considered and decided by the Court.
I find the Appellants arguments under the issue lacking in merit and it is resolved against the Appellant.
The last issue is issue Five (5) under which the Appellant argues that its right to fair hearing was breached on the ground that the Lower Court failed/refused to consider or countenance its Reply to the 1st-6th Respondents address dated and filed on the 6th April, 2018 in opposition to the Appellants motion dated 19th March, 2018, by stating that it was a re-argument of the motion.Page 1161 of Vol. III of the Record of Appeal was referred to and it is submitted that no part of the address was indicated to be a re-argument, which, on the authority of Olafisoye v. FRN (2004) 4 NWLR (864) 550 @ 64 (sic) means repeating arguments already made in earlier process.What are said to be new issues raised in the 1st-6th Respondents address to which the Appellants Reply answered, were enumerated and it is maintained that failure to countenance the Appellants Reply constituted a breach of the Appellants right to fair hearing which vitiated the proceedings and decision of the Lower Court relying on Section 294(1) of the Constitution and Kalu v. State (2017) 14 NWLR (1586) 522 @ 548-9; among other cases.The Court is urged to resolve the issue in Appellants favour.
For the 1st-6th Respondents, it is submitted that the pronouncement by the Lower Court that the Appellants Reply was a re-argument of its motion clearly shows that the Reply was countenance and that the Lower Court was right that it was merely an attempt to re-argue the objection in the motion.That since the Reply was considered by the Lower Court which afforded the Appellant the opportunity to address it on the motion, breach of fair hearing could not have arisen in the circumstances.
In the Appellants Reply brief, the Court is urged to discountenance the arguments of the 1st-6th Respondents on the issue as the Appellants submissions have not been countenanced and so conceded to.
RESOLUTION:
The law is now firmly settled and is beyond argument that one of the requirements of the right to a fair hearing in the judicial proceedings of a Court of law is for parties to a case to be afforded and given equal opportunity to address the Court at the end of or conclusion of evidence in the case. It is also a further requirement of the right to fair hearing in judicial proceedings of a Court that where a party utilized the opportunity to address the Court at the end or conclusion of evidence in a Court, the Court has the duty and obligation to countenance and specifically consider the material and relevant points or issues canvassed by the parties in such addresses (which are known as final address/es) in the determination and before arriving at or reaching a decision on the dispute in the case. By the general position of the law, failure or refusal by a Court to either afford the opportunity to or for a final address or to countenance and specifically consider or take into account, the points or issues canvassed by a party in such address(es), will constitute a denial of the partys right to fair hearing which automatically, vitiates the entire proceedings and all products thereof.
The provisions of Section 294(1) of the Constitution and cases cited in the Appellants brief on the issue, including Kalu v. State (supra) as well as Ihom v. Gaji (1997) 6 NWLR (509) 526, UBN, Plc v. Nwanajuo (2012) LEPLR-7914(CA), Adigun v. A.G., Oyo State (1987) 1 NWLR (53) 678, Okafor v. A.G., Anambra (1991) 6 NWLR (200) 659, Olatunbosun v. N.I.S.E.R.C. (1988) 6 SCNJ, 38, Tunbi v. Opawole (2000) 1 SC, 1, Oyekan v. Akinrinwa (1996) 7 NWLR (459) 128 @ 150, Okoebor v. Police Council (2003) 5 SC, 11, all support this position.
The complaint of the Appellant under the issue is not that it was denied the opportunity to make a final address to the Lower Court at the conclusion of evidence in the proceedings of the motion/objection dated 19th March, 2018, but that its Reply Address to the 1st-6th Respondents Address in opposition to the said motion/objection, was not countenanced or considered in the Ruling by the Lower Court.
The 1st-6th Respondents Address, to which the aforenamed Reply was filed by the Appellant, is at pages 629-636 of Vol. II of the Record of Appeal while the Appellants Reply is at pages 1115-1121 of Vol. III of the Record of Appeal.
In the Ruling appealed against at page 1161 of Vol. III of the Record the Lower Court had ruled that: -The application is pre-mature and is hereby struck out. The reply filed is a re-argument of the motion of the Applicant.
Apparently, the reply filed was countenanced and considered, but found by the Lower Court to be re-argument of the Appellants motion for the purpose of the Ruling on the motion.However, the salient point to be discerned from the above finding by the Lower Court is/was that decision that the reply is a re-argument of the motion of the Applicants, was recorded after the finding that The application is pre-mature and hereby struck out. Since the Appellants motion or application was found pre-mature and struck out by the Lower Court the subsequent statement that the Appellants Reply to the points or issues canvassed on the merit of the said motion/objection was of no moment in the Ruling which was not based on the merit, but was found pre-mature and stuck out. The issue of denial of the Appellants right to fair hearing in the determination of the motion/application on the merit did not and could not have arisen in such a situation on the alleged failure to countenance or consider the Reply by the Appellant.
In any case, the above as it was/is, I have read both the 1st-6th Respondents Address and the Appellants Reply on points of Law there to dated the 6th April, 2018 and it is clear that the Appellants Reply was in reaction or response to all the points canvassed in the 1st-6th Respondents Address and further arguments of the motion/objection dated 19th March, 2018.
Order 22, Rules 5 of the Lower Courts Rules, 2009 provides for the filing of Reply by the party who files the first address, on points of law only. Although, the Appellants Reply was titled REPLY ON POINTS OF LAW —, as stated above, it is rather a response or reaction to all and every point canvassed in the 1st-6th Respondents Address and not confined to points of law only, in addition to further arguments of the motion/objection.
The Lower Court was right to have stated that the Appellants Reply was a re-argument of the motion/objection dated 19th March, 2018. The points/issues set out in the Appellants Reply brief are only further arguments on the merit of the objection as earlier canvassed in the Appellants Address in support of thereof which appears at pages 616-625 of Vol. II of the Record of Appeal.
I find no merit in the Appellants arguments on the issue and it is resolved against the Appellant.
In the final result, since all the issues canvassed by the Appellant in this appeal have been resolved against it, the appeal is lacking in merit and fails.
It is dismissed and as a consequence, the Ruling of the Lower Court on the 6th June, 2018 in the Appellants motion dated the 19th March, 2018 and filed on the 20th March, 2018, is hereby affirmed in its entirety.
There shall be costs in favour of the 1st-6th Respondents, assessed at 500.000.00 for the prosecution of the appeal to be paid by the Appellant.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the painstaking judgment by my learned brother. Mohammed Lawal Garba, J.C.A., (Hon. P.J.), which I had the honour of reading in draft with nothing extra to add.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading before now the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, JCA.
I agree.
Appearances:
Chief W. Olanipekun, SAN with him, Dr. D. Ipeazu (SAN), Akinlolu Oshibajo (SAN, Olabode Olanipekun (SAN) and other Counsel on the list submitted with Court.For Appellant(s)
Lucious E. Nwosu, SAN with him, R. A. Lawal-Rabana (SAN), K. L. Njemanze (SAN), J. U. L. Igwe (SAN) and other Counsel on the list submitted with Court for the 1st -6th Respondents/Judgement Creditors.
Emmanuel Nwadoka with him, A. U. Enyi and Etukudo, R. C. for the 7th & 8th RespondentsFor Respondent(s)
