MAIDUGURI METROPOLITANT COUNCIL & ANOR v. ELIJAH OSAGIE EZEKOR
(2013)LCN/6666(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of December, 2013
CA/J/287/2009
RATIO
WHETHER A PERSON MAY DISOBEY A COURT ORDER ISSUED BY A COURT WITH NO JURISDICTION TO MAKE SAME
It is pertinent to pause and state that there is no doubt about the position of the law that every Nigerian citizen is bound to obey orders of Court made against him until such order is set aside even where the person affected by the order believes that such order was irregular or even void as where the Court has no jurisdiction to make same. See the following cases:
(i) Alhaji Audu Shugaba vs UBN Plc (1999) 11 NWLR (Part 627) 459 at 477
(ii) Military Governor of Lagos State vs Ojukwu (2001) FWLR (Part 1779) at 1796, 1802 and 1906.
(iii) Odogwu vs Odogwu (1992) 2 NWLR (part 225) 539.
(iv) SPDC vs X. M. Federal Ltd (2006) ALL FWLR (part 339) 822 at Page 833, and also
(v) Akinyemi vs Soyanwo (2006) ALL FWLR (Part 335) 58 at 70. Per TIJJANI ABDULLAHI, J.C.A.
PROCEDURE: COMMENCEMENT OF COMMITTAL PROCEEDINGS
The law is now trite that it is after the said motion has been filed and served on the Appellants that a committal proceedings can be said to be pending before the trial Court. Having not filed the said motion,I am of the firm view that it is erroneous in point of law for the trial Court to find and hold that there is a motion for committal before it.
Order 9 Rule 13 of the Judgment (Enforcement) Rules which makes provision for the issuance and Service of forms 48 and 49 must be read and married together with the provisions of Order 45 of High Court (Civil Procedure) Rules, 2004.
In the case of Ojeme vs. Momodu (1995) 6 NWLR (Part 403) 585 at 588, this Court held that:
“My firm view that in a committal proceedings, the two laws shall be married together by observing the provisions of Section 63 of the sheriff’s and Civil Process Law and complying with requirements of order 9 rule 13 of the judgment that, an application under order 42 of the 1988 Edict shall be made to the court failure to comply with the aforementioned procedure makes the committal proceedings patently defective and any order made there on a nullity”. Per TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. MAIDUGURI METROPOLITANT COUNCIL
2. MODU GAMBO BUKAR
(Trading Under the name and style of Gaams Enterprises Ltd) Appellant(s)
AND
ELIJAH OSAGIE EZEKOR
(Trading under the name and style of First Class Elizeh Venture Ltd) Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Justice, Borno State, (Coram) John Jihantikiri (J) delivered on the 28th September, 2009 wherein the learned trial Judge held that:
“As far as this court is concerned, the judgment exparte granted on 18-2-2009 is still subsisting for it had not been appealed nor set aside, therefore it still stands as the judgment of this Court.
In view of the above reason, I rule that the contempt proceedings be taken first before any other proceedings. Objection therefore sustained.”
Dissatisfied with the said Ruling, the Appellants through their Counsel filed a Notice of Appeal containing three grounds on 4th of October, 2009. Shorn of their particulars, they are:
GROUND ONE
“The trial court erred in law when it found that:
“…Dada brought his motion for contempt of the order of the court for the failure of MMC and Modu Gambo Bukar to comply with that judgment…”
and when it concluded that:
“…I rule that the contempt proceedings be taken first before any other proceedings”
GROUND TWO
The trial Court further erred in law when it held that:
“…The judgment ex-parte granted on 18th February 2009, is still subsisting for it had not been appealed nor set aside therefore it still stand (sic) the judgment of the court.
GROUND THREE
The trial court erred in law when it purported to rely on the Supreme Court decision in the case of EBHODGHE VS OKOYE as authority for holding that the contempt proceedings be taken first before any other proceedings.”
From the three grounds, reproduced above, the learned Counsel for the Appellants distilled three issues for determination to wit:
“(1) Whether the trial court was right when it held that there was a motion for contempt filed by the Respondent pending before it.
(2) Where there is a pending application to discharge an ex-parte order of the trial Court, will the court be right in law to first determined contempt proceedings based on the said ex-parte order, before a consideration of the motion to discharge the order?
(3) Whether having regard to the provisions of Order 9 Rules 11 and 12 of the High Court (Civil Procedure) Rules 2004 of Borno State, the exparte order granted by the trial court on the 18th day of February 2009, is still valid and subsisting notwithstanding the pendency of the motion to discharge or set aside same.”
It is instructive to note that the Respondent though duly served with all the processes in this appeal, did not file a brief of argument. This necessitated the Appellants to file a motion on notice praying for an order of the Court to argue the appeal on the basis of the Appellants/Applicants’ brief of argument alone. The application was heard and granted on 21/02/2011. This appeal will therefore be determined on Appellants’ brief.
Let me tarry a while and state that though in appeals where no Respondent’s brief was filed, the Respondent would be deemed to have conceded to all the issues and submissions contained in the Appellant’s brief the Court still owes the duty to consider the issues in the appeal on their merit before deciding the outcome of the appeal. See John Holt Ventures vs. Oputa (1996) 9 NWLR (part 621); Sofolahan vs. Falahan (1999) 10 NWLR (Part 621) 86.
It is for the foregoing reason, that I will now proceed to consider the appeal on its merit. But before I do that let me albeit briefly set out the facts of the case and they are that:
“The Respondent was the Plaintiff before the trial court, on the 18th day of February 2009, he obtained an exparte order from the High Court of Borno State against the Appellants. Restraining Inter-alia the 1st Appellant from collecting revenue/rate on tenement within the Maiduguri Metropolitan Council.
On the 28th day of February 2009, the Appellants filed a motion on notice praying inter-alia for an order to discharge or set aside the ex-parte order, and also challenged the jurisdiction of the trial court to entertain the suit. The said motion and notice of preliminary objection are still pending before the trial court. Respondent filed forms 48 and thereafter changed his counsel, and later filed form 49 before the trial court.
When the motions and notice of preliminary objection came up for hearing Respondent objected to the hearing and insisted that the contempt proceedings should be heard first. Arguments were heard by the trial Court and matter reserved for ruling.
On the 11th day of August 2009,the trial court ruled that the ex-parte order still subsists and that it will hear the contempt proceedings first before any other proceedings. The Appellants were dissatisfied with the ruling of the trial court and filed three grounds of appeal, and formulated 3 issues for the Court’s determination.”
On the 1st issue for determination, learned Counsel submitted that the trial Court misled itself when it held that the Respondent filed a motion for contempt before the Court wherein it held.
“I have considered the submission of both learned counsel for the parties the motion filed by the plaintiff in this suit was a result of the case decided on 18th February 2009 in which this court on an application exparte granted Mr. Elijah Osagie Ezekor his relief as per the order of this court on that day.
Dada brought his motion for contempt of the order of the court (sic) Modu Gambo Bukar to comply with that judgment.”
A careful perusal of the record of appeal will reveal that there was no motion for committal filed before the Court. What the Respondent did was to file form 48 on 2nd March 2009 contained at page 46 and form 49 on the 7th of July contained at page 65 of the record of proceedings.
It is the contention of the learned Counsel that, issuance and service of forms 48 and 49 are mandatory requirements in committal proceedings that must be complied with in view of the fact that the liberty of a citizen of Nigeria is at stake. Learned Counsel further contended that this is a requirement of the provision of Section 63 of the Sheriffs and Civil Process Law and Order 9 Rule 13 of the Judgment (enforcement) Rules. However the issuance of these forms, learned Counsel went on, on their own do not constitute the required committal proceedings as misapprehended by the trial Court as provided by law.
It is the submission of the learned Counsel that the provisions of Order 9 Rule 3 of the Judgment (Enforcement) Rules which make provision for the issuance and service of forms 48 and 49 must be read and married together with the provisions of Order 45 of the High Court (Civil Procedure) Rules, 2004 of Borno State, as failure to do so will make the committal proceedings patently defective. He relied on the decisions in the cases of Agu vs. Anyalogu (2001) FWLR (Part 68) 1247 at 1257 and Ojeme vs. Momodu (1995) 6 NWLR (Part 403) 585 at page 588 to buttress his submission on this point.
On issue No. 2, learned Counsel argued that assuming but not conceding that the issuance of forms 48 and 49 could be properly regarded as contempt proceedings, learned Counsel submitted that the trial Court was in grave error when it held that the contempt proceedings would be heard before any other proceedings. He drew the attention of the Court to the application filed before the Court to set aside the ex-parte order of the trial Court at page 69 line 10 wherein the learned Counsel argued that:
“Lastly, the purpose of this application before this Court is that the order of this Court was not properly made and one of our grounds for this application is that order should be set aside”.
It is the contention of the learned Counsel that though every citizen of Nigeria is bound to obey orders of Courts made against him, however, there are circumstances in which the rules of Court permit a party to apply within a specified time that such order made against him be set aside, varied or discharged.
Learned Counsel further contended that the position of the law is that a party who has availed himself of the provisions and applied within the time stipulated by the Rules cannot be held to be in contempt of the ex-parte order of Court until his application has been disposed of. He relied on the case of Adelakun vs. Adelakun (1993) 7 NWLR (part 308) 746 at 762. We are urged to resolve this issue in favour of the Appellants.
On issue No. 3, after reproducing some portion of the Ruling of the trial Court as it relates to the subsistence of the ex-parte order granted on 18/02/2009, learned Counsel submitted that ex-parte order of a Court is not intended to last indefinitely rather it is meant for a short duration. For this submission, Learned Counsel relied on Order 9 Rule 12(1) and (2) of Rules of the trial Court.
Learned Counsel made the point that having failed to hear the motion to set aside the order, he (learned trial Judge) made ex-parte, he was grossly in error. He was also grossly in error when he regarded the ex-parte order still subsists as same has not been set aside. Learned counsel relied on Bogban vs. Diwhre (2005) 16 NWLR (part 951) 274 at 299 paragraphs B-E and Okechulcwu vs. Okechukwu (1989) 3 NWLR (Part 108) 234 at 247.
Learned Counsel urged us to resolve this issue in favour of the Appellants and set aside the Ruling of the lower Court.
Let me begin the consideration of the 1st issue for determination by reproducing the provisions of Order 9 Rule 3 of the High Court (Civil Procedure) Rules 2004, Borno State as well as Order 45 Rules 1 and 2 of the same High Court (Civil Procedure) Rules. They provide as follows:
“Order 9 Rule 3;
“… Every motion shall be supported by affidavit setting the grounds on which the party moving intends to rely, and no affidavit shall be used at the hearing unless it is duly filed.”
“Order 45 Rules 1 and 2 of the Rules of Court provide:
(1) The power of Court to punish for contempt of Court may be exercised by an order of committal.
2(1) An application for an order for committal shall be made to the court by motion on notice supported by an affidavit and shall state the grounds of the application.
(2) The notice of motion, affidavit and grounds shall be served personally on the person sought to be committed but the court may dispense with personal service where the justice of the case so demands.”
A hard look at what transpired at the lower Court will reveal the fact that the learned trial Court treated forms 48 and 49 as a motion on notice and did not advert its mind to the fact that none of the said forms is supported by an affidavit and therefore could not have been regarded as a motion. There is nowhere in the record of the trial Court where the Respondent filed a motion on notice supported by an affidavit stating the grounds of the application.
The law is now trite that it is after the said motion has been filed and served on the Appellants that a committal proceedings can be said to be pending before the trial Court. Having not filed the said motion,I am of the firm view that it is erroneous in point of law for the trial Court to find and hold that there is a motion for committal before it.
Order 9 Rule 13 of the Judgment (Enforcement) Rules which makes provision for the issuance and Service of forms 48 and 49 must be read and married together with the provisions of Order 45 of High Court (Civil Procedure) Rules, 2004.
In the case of Ojeme vs. Momodu (1995) 6 NWLR (Part 403) 585 at 588, this Court held that:
“My firm view that in a committal proceedings, the two laws shall be married together by observing the provisions of Section 63 of the sheriff’s and Civil Process Law and complying with requirements of order 9 rule 13 of the judgment that, an application under order 42 of the 1988 Edict shall be made to the court failure to comply with the aforementioned procedure makes the committal proceedings patently defective and any order made there on a nullity”.
It is my firm view that the trial Court was in palpable error when it found that there was a motion for committal before it. I am of the further firm view that there cannot be a valid contempt proceedings until a motion to that effect has been filed before the Court. This issue is resolved in favour of the Appellants.
On the 2nd issue for determination, let me start with the reaction of the learned trial Judge to the submission of the learned Counsel that their application to set aside the order made ex-parte should be taken first before that of committal, the learned trial Judge at pages 73 – 74 of the record held that:
“…going by the Supreme Court decision in the above cited case of ESHODGHE VS OKOYE supra…. I totally accept the reasons of Mr. Dada on his submission … in view of the above reasons, I rule that the contempt proceedings be taken first before any other proceedings objection therefore sustained.”
It is pertinent to pause and state that there is no doubt about the position of the law that every Nigerian citizen is bound to obey orders of Court made against him until such order is set aside even where the person affected by the order believes that such order was irregular or even void as where the Court has no jurisdiction to make same. See the following cases:
(i) Alhaji Audu Shugaba vs UBN Plc (1999) 11 NWLR (Part 627) 459 at 477
(ii) Military Governor of Lagos State vs Ojukwu (2001) FWLR (Part 1779) at 1796, 1802 and 1906.
(iii) Odogwu vs Odogwu (1992) 2 NWLR (part 225) 539.
(iv) SPDC vs X. M. Federal Ltd (2006) ALL FWLR (part 339) 822 at Page 833, and also
(v) Akinyemi vs Soyanwo (2006) ALL FWLR (Part 335) 58 at 70.
The above is the general rule but as it has been said that to every rule there is an exception and in the case in hand the rules of Court permit a party to apply within a specified period of time that such order made against him be set aside, varied or discharged. The position of the law is that a party who has availed himself of the provisions and applied within the time stipulated by the rules cannot be held to be in contempt of the exparte order of Court until his application has been disposed of. See the case of Adelakun vs. Adelakun (1993) 7 NWLR (Part 308) 746 at 762.
It is to be noted that in the instant case, the ex-parte order of injunction was granted on the 18th day of February, 2009. The Appellants filed a motion seeking inter-alia to discharge or set aside the ex-parte order, on the 25th day of February, 2009, within the statutory period of 7 days. By exercising the statutory right vested on them by the rules of Court, the trial Court was duty bound to hear and determine the said application before proceeding to determine any committal proceedings that might be brought before it.
I am of the view that by not hearing the said application, the trial Judge was in grave error when he held that the contempt proceedings would be heard first before any other proceedings. This issue is therefore resolved in favour of the Appellants.
Last but not the least issue for determination is issue No. 3 which relates to the potency or otherwise of the ex-parte order. The learned trial Judge, as can be gleaned from the records held the view that the said order was still subsisting. Hear him!:
“… I totally accept the reasons of Mr. Dada on his submission. As far as the judgment ex-parte granted on 18-02-2009 is still subsisting for it had not been appealed nor set aside therefore it still stands as the judgment of the court…”
The law is now trite that ex-parte order of a Court of law is not intended to last indefinitely rather it is meant for a short duration. Order 9 Rule 12 (1) and (2) of the Rules of the Court provide as follows:
“12(1). No order made on a motion ex-parte shall last for more than 14 days after the party affected by the order has applied for the order to be varied or discharged or last for another 14 days after application to vary or discharge it has been concluded.
(2) If a motion to vary or discharge an order is not taken within 14 days of its being filed, the ex-parte order shall automatically lapse”.
The provisions of the order are very clear and unambiguous and no aid is required for their interpretation. The order ex-parte was made on the 18th day of February, 2009, Appellants filed their motion to discharge the said order on the 25th day of February, 2009, within the statutory period given to them by the rules of Court.
I am of the view that having failed to hear the said motion on 11th day of March, 2009, the ex-parte order of the trial Court automatically lapsed from the 12th day of March, 2009. The order has lost its potency and has since, become a spent force and no coercive power of the Court can be predicated thereon.
It is on the basis of this that I hold the view that the trial Court grossly erred in law when it regarded the ex-parte order as still subsisting as same has been set aside.
I am of the further view that where a statute or rules of Court regards an order of Court as having automatically lapsed, no application to set aside the order is required, it lapses by operation of law, without any direct human intervention.
In the case of Bogban vs. Diwhre (supra) this court held that:
“…The order of interim injunction is not meant to provide a temporary victory to be used against an adverse party ad-infinitum. It should not be allowed to hang on the opposing party. The duration of its potency is always limited to a short period ……. Courts must ensure that an ex-parte order of injunction is not allowed to over stay. Delay or inaction is not tolerated by the court and the counsel to the party that obtained an interim order should act very fast to see that all that needs to be done in order not to make it as if getting the ex-parte injunction was all that concerned him…”
Again, in the case of Okechukwu vs. Okechukwu (1989) 3 NWLR (Part 108) 234 at 247, it was held thus:
“… It is most disturbing that the use of ex-parte injunction by some judges cannot be supported in any measure either on the applicable principles or on the fact. They do not seem to advert to the need for caution in the exercise of that extra ordinary jurisdiction. They appear to give impression that the discretion is so personal that it does not matter if others see it as a means of inflicting undeserved punishment and hardship on another party …… it has again become necessary to issue a reminder that even where everything point favourably to the granting of an exparte injunction there is always the need to make its life very short…”
A cursory look at the proceedings of the trial Court reveals that the Respondent proceeded contrary to the above words of wisdom, there was no concerted efforts on his part to ensure speedy disposal of the various applications before the trial Court.
It is instructive to note that while the application to discharge the exparte order was still pending, Respondent proceeded to file forms 48 and 49 in July 2009, about 16 months after the ex-parte order was granted. Thus given the impression that, what matters to him was only the ex-parte order and nothing more. This to my mind is not fair, and does not accord with the justice of the case.
I am therefore of the opinion that the decision of the learned trial judge cannot stand based on the authorities cited above. This issue is also resolved in favour of the Appellants.
In conclusion, this appeal is pregnant with a lot of merit and same is hereby allowed. The Ruling of the High Court of Justice appealed against is set aside. Pursuant to Order 16 of the Court of Appeal Act, I hold that the preliminary objection of the Appellant is meritorious and same is granted as prayed. The ex-parte order dished out by the learned trial Court is quashed.
I make no order as to costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead Judgment just delivered by my learned brother, ABDULLAHI, JCA. I fully agree with all his reasonings and conclusions. I adopt them as mine. I have nothing more to add. I too would allow this appeal and also abide by all the consequential orders in the lead Judgment, including the order on costs.
CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.: I have read before now the judgment just delivered by my learned brother, Tijjani Abdullahi, JCA. I agree that there is merit in the appeal and same is allowed. The Ruling of the trial Court is set aside and the ex-parte order by the trial Court is accordingly quashed. I also make no order as to costs.
Appearances
P. A. Bello Esq.For Appellant
AND
B. Adamu (ADCL) Ministry of Justice MaiduguriFor Respondent
