MANDARA v. ALI & ANOR (2020)

MANDARA v. ALI & ANOR

(2020)LCN/14721(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/G/53/2020

RATIO

JURISDICTION: NATURE OF AN ISSUE TOUCHING ON THE JURISDICTION OF A COURT

An issue or objection touching on the jurisdiction of a Court to entertain a matter is of law because it touches on the competence of the Court to entertain the matter placed before it for determination. Hence, where there is an issue touching on the competence of the trial Judge’s determination of the Respondent’s application, this Court has a duty to first resolve that issue before proceeding further to consider other grounds of appeal and the issues distilled from it: EFCC & Ors vs. Odigie (2012) LPELR-15324 (CA), per Yakubu, JCA (p. 18 paras E – G), AG Lagos State vs. Dosunmu (1989) LPELR-3154 (SC) page 10 paras B, State vs. Onagoruwa (1992) LPELR-3228 (SC) Pp. 26 – 27 paras F – A, Obaba & Ors vs. Military Gov. of Kwara State & Ors (1994) LPELR-2147 (SC) at page 11 paras A – E.

This Court therefore has its priority, the determination of the complaint of the appellant that the issue of jurisdiction it raised was not addressed, and if addressed, it was wrongly decided.

In the case of PDP vs. Ezeonwuka & Anor (2017) LPELR-42563 (SC), it was held:

“Now, a Court is said to have jurisdiction when:- (1) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another. (2) The subject matter of the case is within its jurisdiction. (3) There is no feature in the case which prevents the Court from exercising its jurisdiction and (4) The case comes before the Court initiated by due process of law and fulfillment of any of the condition precedent to the exercise of jurisdiction. See Madukolu & Ors v. Nkemdilim (1962) NSCC 374 at 379 to 380 and Chief Ikechi Emenike v. P.D.P. & Ors (2012) LPELR-7802 (SC).” Per MUHAMMAD, JSC (Pp. 92-93, paras. D-A)
See also Akeredolu & Ors vs. Aminu & Ors (2003) LPELR-12410 (CA) at page 16, paras B – F, NNPC & Anor vs. Orhiowasele & Ors (2013) LPELR-24710 (SC) at 25 – 26 paras F – A. PER ABUNDAGA, J.C.A.

JUDGE: JUDICIAL DUTY OF A TRIAL JUDGE

The trial Judge owes it a judicial duty to give reasons why he preferred the views of one counsel to the other. With utmost respect, the learned trial judge did not do enough. My learned brother, Sankey J. was confronted with a similar judgment in the case of ED. Tsokwa & Ors vs. Alh Mijinyawa & Ors (2014) LPELR – 24200 (CA) Per Sankey, JCA (PP. 30-35, Para F). Therein she stated in an unambiguous language, thus:
“I must be quick to respectfully observe at this point that every judge is entitled to adopt his own style of writing judgments whether sitting as a trial Court or as an appellate Court. Nonetheless, what is accepted as universal and indeed settled law is that every judge adjudicating in a matter before his Court has a duty to pronounce judgment on all issues placed before him for resolution. In other words, every judgment has to state the facts of the case, the points in issue requiring the Court to pronounce on them and then set out the Court’s decision with the reasons for the same. However, in view of the way and manner in which the lower Court chose to couch its Judgment, without beating about the bush, I am sadly but most respectfully, of the view that it fell far short of the requirements of a judgment. It has not been exhaustive and precise as every judgment ought to be. Indeed, the trial Court glossed over the whole gamut of the evidence led before it and this has most certainly occasioned a miscarriage of justice to the parties. The fundamentals of writing a good judgment which a trial Court is enjoined to adhere to as articulated over the years by the Courts of our land, and in particular, by the recent decision of the Supreme Court per Muhammad, J.S.C. in Ishola v. Folorunsho (2010) 6 SCNJ 151 @ 168, amongst others, comprise of: a) Making a brief statement of the type of action/offence being adjudicated upon; b) Setting out the claims/offence in full or in part c) Reviewing of the evidence led; d) Appraising/evaluating such evidence; e) Making findings of fact therefrom; f) Considering the legal submissions made and/or arising and making findings of law on them; and g) Reaching a conclusion, i.e. verdict/final decision/order(s). One of the most important yardsticks of determining a good judgment is the appraisal or evaluation of the evidence presented before the Court. Without this, it becomes impossible for an appellate Court to carry out its duty and responsibility of examining the decision of the Court below to determine whether or not the decision is in tune with the facts and the law. It must also be comprehended that reviewing evidence is certainly different from evaluating evidence. What a Court does when it reviews evidence is to re-state or re-hash briefly and concisely what the case of each party as presented before the Court is. Thereafter, it becomes obligatory on the Court to go further to consider the quality of the evidence, the weight to be attached to it, and in civil cases, the evidence preponderating on both sides. It is at this stage that the judge uses his imaginary scale to weigh the evidence on both sides. He must then come to an objective decision as to which side of the scale the evidence preponderates and he delivers his decision accordingly. A judge is not allowed to adopt a hop, step and jump procedure by leaping hurriedly from a review of evidence, straight on to the finishing line, (as it were), to deliver a verdict. He must step into the area where he addresses all the issues raised in the case, appraises the facts, applies the law before he gives his decision and the reasons therefore, i.e. the ratio decidendi. It is well recognized that, as individuals, different Judges have different styles of writing judgments. Whereas some espouse brevity, others are long-winded, while others are in-between. In all these, what is of paramount importance is clarity, a proper consideration and evaluation of the facts as presented before the Court, a proper application of the law to these facts, a decision and the perception of the ordinary reasonable man that justice has been done to all the parties in the dispute. Evaluation is the dispassionate appraisal of the evidence before the Court with a view to finding out which side of the imaginary scale the evidence preponderates. In Anselem Onejeme v. Hon. (Mrs.) Eucharia Azodo & Ors (supra) @ 579 para E, Onnoghen, J.C.A., (as he then was) held thus: “Evaluation is different from summation of evidence. Evaluation of evidence involves a process of reasoning by which the trial Court believes the evidence of one of the contending parties and disbelieves that of the other; a preference of one version to the other. On the other hand, summation is restatement of the evidence produced by parties.” See also Gatah (Nig) Ltd v. ABU (2005) ALL FWLR (Pt. 278) 1186 @ 1223 para H, wherein this Court again held thus: “It needs be stressed, that a summary or restatement of evidence, is not the same thing, as evaluation of evidence which entails the assessment of evidence so as to give value or quality to it.” In Kaydee Ventures Ltd v. Hon. Minister, FCT (2010) ALL FWLR (Pt. 519) 1079 @ 1104 paras A-C, the apex Court held: “These are all geared towards justifying the averments each of the parties made in his/its pleadings. After the completion of evidence and perhaps closing addresses (where necessary) by the parties, it is now the duty of the learned trial Judge to first of all put the totality of the testimony adduced by both parties on an imaginary scale that is, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then observe which is heavier not by the number of witnesses called by each party, but by the quality or probative value of the testimony of those witnesses. In determining which side is heavier, the learned trial judge will need to have regard to whether the evidence is relevant, conclusive, admissible and more probable than the one adduced by the other party. It is to be noted that any evidence that was rejected by the trial Judge should not find a resting place on that imaginary scale. The totality of the evidence should be considered in order to determine which has weight and that which carries no weight at all.” Again, in Sule v. State (2009) ALL FWLR (Pt. 481) 809 @ 829 paras B-C, wherein the apex Court per Ogbuagu, J.S.C., succinctly held thus: “It need be stressed and this is also settled that the role of a trial Court is to hear evidence, to evaluate the evidence, to believe or disbelieve a witness or witnesses, to make findings of fact based on the credibility of the witness or witnesses who testified and to decide the merits of the case based on the findings…” Furthermore, it is absolutely the duty of a Court to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Where it fails to do so, such leads to a miscarriage of justice, apart from the fact that it breaches the right of the parties to a fair hearing. In the instant case, the lower Court’s duty to pronounce on every issue raised before it was fundamental to resolving the questions raised in the suit. A failure to do so has been characterized as a failure to perform a statutory duty. In Ovunwo v. Woko (2011) 6 SCNJ 124, reference was made to Brawal Shipping (Nig.) Ltd v. Onwadike & Co Ltd (2000) 6 SCNJ 508, wherein Uwaifo, J.S.C. held as follows: “It is no longer in doubt that this Court demands of and admonishes, the lower Courts to pronounce, as a general rule on all issues properly placed before them for determination in order apart from the issue of fair hearing not to risk the possibility that the only issue or issues decided by them may be faulted on appeal.” Per SANKEY, JCA (Pp. 30-35, para F). PER ABUNDAGA, J.C.A.

CONTEMPT: NATURE OF A CONTEMPT PROCEEDING

A contempt proceeding is meant to call one in disobedience to Court judgment, to order and to protect the integrity and sanctity of the Court and to ensure effective administration of justice. See Alechenu vs. A.G Borno State (2011) LPELR–3981(CA), Nwawka vs. Adikamkwu (2015) All FWLR (Pt. 804) 2064, Egbebu vs. IGP & Ors (2016) LPELR-40224 (CA) at Pp. 61 – 63, paras F – A).
The long and short of it is that contempt proceedings is in the nature of criminal proceedings. There is a school of thought who insist that being a criminal matter, there should be a formal charge if the contempt was committed exfacie curiae and if in the face of the Court, the alleged contemnor, in the nature of a criminal allegation shall still be given the opportunity to show cause why he should not be convicted and punished for contempt. Contempt proceedings can ensue from orders made in criminal as well as civil proceedings. PER ABUNDAGA, J.C.A.

WORDS AND PHRASES: MEANING OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT

What autrefois acquit or autrefois convict means and when it can avail one who pleads it was, thus, beautifully explained in the case of PML (Securities) Co. Ltd vs. FRN (2018) LPELR– 47993 (SC):
“Double jeopardy, which prohibits a person from being tried or punished twice for the same offence with the same set of facts, is enshrined as a right under Section 36(9) and (10) of the Constitution of the Federal Republic of Nigeria, 1999, which provides – (9) No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court. (10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence. Section 36 (9) of the 1999 Constitution (as amended) makes it very clear that any accused person, who shows that he had been tried for a criminal offence, and was convicted or acquitted, shall not be tried again for the same offence or for a criminal offence having the same ingredients as that said offence. In this case, appellant argued that withdrawing the charges against it, amounted to an “acquittal”, which is – “a setting free from the charge of an offense by verdict, sentence or other legal process” – merriam-webster.com. See Blacks’ Law Dictionary, 9th Edition, where autrefois acquit is defined as – (Law French “previously acquitted”) A plea in bar of arraignment that the defendant has been acquitted of the offence – also termed former acquittal. See Double Jeopardy. Cases: Criminal Law; Double Jeopardy: “Suppose that a transgressor is charged and acquitted for lack of evidence, and evidence has now come to light showing beyond doubt that he committed the crime. Even so, he cannot be tried a second time. He has what is termed in legal Frenglish (sic), the defence of autrefois acquit. Similarly, if he is convicted, even though he is left off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defence of autrefois convict. These uncouth phrases have never been superseded, though they might well be called the defence of “previous acquittal” and “previous conviction”; and “double jeopardy” makes an acceptable generic name for both.” Glanville Williams, Textbook of Criminal Law. In this case, in resolving this issue against the appellant, the Federal High Court, Benin held that it did not adduce any evidence to show that it had gone through any trial and was convicted or acquitted or pardoned; and that since there was also no evidence of any plea bargain agreement with the prosecution or the EFCC to drop or condone the said charges, then “the doctrine of double jeopardy and abuse of Court process is not available and open” to the appellant herein.” Per AUGIE, JSC (Pp. 42-45, paras. F-B). PER ABUNDAGA, J.C.A.
RELIEF: WHETHER THE COURT CAN GRANT A RELIEF NOT SOUGHT

It is clearly the law that a Court cannot give a relief not asked for unless it is consequential.
See the cases of Makanjuola & Anor vs. Balogun (1989) LPELR – 1827 (SC), page 20 para E, Awojugbagbe light Industries Ltd vs. Chinukwe & Anor (1995) LPELR – 650 (SC), at page 75 paras E – F. PER ABUNDAGA, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ALHAJI ALI BUKAR MANDARA APPELANT(S)

And

1. ALHAJI USMAN ALI 2. BABA UMAR BABAGANA RESPONDENT(S)

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling/Judgment of High Court of Borno State, in Suit No. BOHC/KDG/CV/4/M/2019 delivered on 13/12/2019 by Hon. Justice HADIZA Ali Jos. The facts upon which the Judgment on appeal is predicated is that the lower Court entered Judgment in Suit No. BOHC/MG/CV/25/12 on 4/12/15 in favour of the Respondents against the Appellant. It was a Judgment in which the Respondents who were the plaintiffs were declared owners in respect of the parcel of land with No. 32 BOSA 32A as well as the farmland covered by M. M. C. C. of O No. 11377. The Judgment was delivered by Hon. Justice Hadiza Ali Jos, who incidentally delivered the Ruling in the instant appeal. The orders as contained in the aforesaid Judgment was made against the Appellant herein who was the defendant in that suit.

Not satisfied with the Judgment in the said Suit No. BOHC/MG/25/12, the Appellant filed an appeal to the Court of Appeal and lost. He also lost an application for the stay of Execution of the Judgment, which was dismissed. The Appellant’s appeal against the Judgment of the High Court to

the Court of Appeal Jos, was dismissed for lack of merit. Still not satisfied, he filed an application before the Court of Appeal Jos for leave to appeal to the Supreme Court. The application was struck out for want of diligent prosecution. Consequent on the above the Respondents sought the assistance of the police and the Deputy Sheriff to enforce the Judgment. This was successfully done on 4/8/17, whereby the occupants of the premises were ejected. However, as alleged by the Respondents, the Appellant with his agents went back to the premises, broke into it and occupied it and still remains there till date (that is, as at when the application whose Judgment is in the instant appeal was filed). Following the above, the Respondents wrote to the Commissioner of Police, Borno State Command, who acted on their complaint by arraigning the Appellant on first information Report for criminal trespass, criminal intimidation and contempt before the Chief Magistrate’s Court Maiduguri. In his Judgment delivered on 9/1/2019 the trial Chief Magistrate discharged and acquitted the appellant. The case was at the instance of the Respondents. Meanwhile, on 13/5/2019, the

Respondents commenced committal proceedings before the High Court of Borno State in Suit No. BOHC/MG/CR/41M/19 against the Appellant, in which they sought the following orders:-
(1) An order committing the Judgment debtor/Respondent for contempt of Court in disobeying the Judgments and orders of this Honourable Court and those of Court of Appeal in Suit No. BOHC/MG/CV/25/12 and No. CA/J/31/2016 delivered on 4th December, 2015 and 4th January, 2017 respectively.
(2) And any other order or orders this Court may deem to make in the circumstances.

The motion by which the committal proceedings was commenced was supported by an affidavit of 16 paragraphs. Annexed to it were Exhibits. A written address by the Respondents’ Counsel accompanied the affidavit.

In his reaction to the motion on notice for committal proceedings, the Appellant filed Notice of Preliminary Objection to the competence of the motion for committal proceedings on the ground that the motion is incompetent. He also filed a Counter affidavit of 3 paragraphs. The preliminary objection was accompanied with a written address of the Appellant’s Counsel.

The motion for committal was heard on the aforestated processes. In a considered Ruling/Judgment delivered by the trial Judge, the application to commit the Appellant was granted. The trial Judge ordered as follows:
“I hereby order the Respondent and all person (sic) whosoever is occupying the property covered by no. 32 BOSA 32A and certificate of occupancy No. 011377 to vacate and deliver vacant possession on or before 01/01/2020. Also the judgment of this Court dated 04/8/17 still stand (sic) the Respondent should on no account threaten the Applicants. Failure to comply will attract committal to prison. Parties to bear their cost.”

The Judgment of the trial Court can be located at pages 78 – 86 of the record of appeal.

Though the record of appeal bears no evidence of the Appellant’s committal to prison, counsel were on the same page in informing the Court that the Appellant is in prison custody (now, “Correctional Centre”).

The Appellant found his conviction for contempt unsavoury and decided to file an appeal against it. The notice of appeal which was filed on 20/12/2019 contains four substantive grounds of

appeal together with their particulars. The grounds of appeal shorn of their particulars are:
“GROUND ONE
The learned trial judge erred in law when she entertained the matter without having jurisdiction thereby causing a miscarriage of justice to the appellant.
GROUND TWO
The learned trial judge erred in law when she convicted the appellant for contempt despite the record of proceeding placed before the Court where the appellant was tried by Chief magistrate 4 and discharged on the same alleged contempt.
GROUND THREE
The learned trial judge erred in law when she failed to entertain a preliminary objection of the appellant for lack of serving forms 48 and 49 of sheriffs and civil process Act thereby causing a miscarriage of justice to the appellant.
GROUND FOUR
The learned trial judge erred in law when she convicted the appellant and held that the appellant or any other person shall vacate the premises on or before 1st January, 2020.”
The Appeal seeks the following reliefs:
(a) To allow the appeal
(b) To set aside the Ruling of the lower Court
(c) Discharge and acquit the Appellant<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Record of Appeal duly compiled and transmitted, briefs of argument were filed and exchanged by the parties.

The appeal came up for hearing, on 14/10/2020 whereat, A. B. Usman adopted the Appellant’s brief of argument and Appellant’s reply brief of argument, all settled by him, filed on 18/3/2020 and 24/9/2020 respectively. The Respondent’s brief of argument settled by A. H. Aliyu was adopted by him in urging the Court to dismiss the appeal and affirm the Judgment of the lower Court as against the submission of A. B. Usman who urged the Court to allow the appeal and set aside the Judgment/Ruling of the lower Court.

The Appellant distilled three issues in his brief of argument. The issues as formulated by the Appellant are:
1. “Whether or not the Trial Court was endowed with jurisdiction to entertain the matter and is not caught by res judicata (Distilled from ground one & two).
2. Whether the lower Court was right when it failed to entertain the preliminary objection or not (Distilled from ground three).
3. Whether or not the order of vacation of (sic) made by the Trial Court was valid or not.”

The Respondents distilled four issues for determination. Though the issues are not tied to the grounds of appeal, a run through of them reveals that they can be accommodated within the three issues formulated by the Appellant save for the fact that they are not tied to the grounds of appeal. The Respondents’ issues are for this reason competent. The issues are:
i. Whether or not the Appellant’s actions collectively and severally amount to contempt of Court.
ii. Whether or not the Court below had the requisite jurisdiction to try and convict the Appellant for contempt considering the circumstance(s).
iii. Whether or not in the consideration of the circumstances of the matter at hand, the Appellant has made a case for the Court to decide in his favour.
iv. Whether or not the issue before the Trial Court as asserted falls within the purview of res judicata.”

The issues formulated by the parties are the same in content. However, I find the issues formulated by the Appellant more organised and more precise. Therefore, I adopt them for the determination of this appeal.

In doing so I will consider issues one and

two together, and issue three separately.

Argument on the issues
Issue One
Whether or not the Trial Court was endowed with jurisdiction to entertain the matter and is not caught by res judicata.
Issue Two
Whether the lower Court was right when it failed to entertain the preliminary objection or not.

For the appellant, it is submitted that the trial Court had no jurisdiction when it heard and determined the matter. It is submitted that the matter had been determined by another Court (in this case, the Magistrate’s Court), and therefore they were precluded from re – litigating the same cause of action again. In other words, issue estoppel operated against the parties. The Court is referred to pages 31 – 65 of the record of the trial Court.

Further submitted is that the Respondents did not comply with the requirements for committal proceedings. It is submitted that before committal proceedings can be commenced there must be compliance with the provisions of the sheriffs and Civil Process Law (Judgment Enforcement) Rules which requires the prior personal service of forms 48 and 49 by the Applicants on the

Respondent (now Appellant). It is submitted that the Respondents did not comply with this requirement, as none of the forms was served on the Appellant. Reliance is placed on Order IX Rule 13 of the Sheriffs and Civil Process Act. Further submitted is that a Court of law can only exercise its discretion in favour of an applicant where he has placed all materials required before the Court. Cited in support is the case of Gen & Aviation Service Ltd vs. Thahal (2004) 10 NWLR (Pt. 880) page 50 at 74 paras A – F.

The Court is on these submissions urged to resolve issues one and two in favour of the Appellant.

It is for the Respondents submitted that the necessary requirements to establish contempt has been fulfilled by them. That contempt could be criminal or civil in nature depending on the circumstances and the facts of the case. On the issue of jurisdiction it is submitted that jurisdiction is very fundamental to the adjudication of any dispute, and being a threshold and life wire issue, any decision reached where there is no jurisdiction will become a nullity no matter how well it is conducted. Referred to is the case of

Ibadan North East Local Government & Anor vs. Makinde (2018) LPELR-44984 (CA).

In regard to the issue of estoppel contended by the Appellant, in relation to the case before the magistrate Court, it is contended for the Respondents that Section 36 of the 1999 Constitution (as amended) was cited without reference to any particular subsection. Also in respect of Appellant’s submission that there was faulty enforcement procedure, it is submitted for the Respondents, that the application was for disobedience/contempt for a property already enforced, and therefore even if there was a faulty procedure, that the Appellant ought to have approached the Court and not to take the laws in his hands as he did.

Further, on the authority of the case of Olonade & Anor vs. Sowemimo (2014) LPELR-22914 (SC), it is submitted that not every error of law committed by a Court can justify the reversal of the decision on appeal; that the appellant must go extra mile to establish that the error complained of and established has substantially affected the result of the decision arrived and/or occasioned a miscarriage of justice.

On the appellant’s submission that the case

is caught up by estoppel per rem judicatem/res judicata, it is submitted that the parties in the case at the Magistrate Court and the High Court were not the same, as one was criminal, and still pending before the Borno State High Court, whereas, the instant matter is a civil matter with different parties from the case decided at the magistrate’s Court. Cited in support of this submission is Onwuchekwa & Anor vs. Onwuegbu & Ors (2013) LPELR-20653 (CA). The Court is thus urged to dismiss the appeal and affirm the judgment of the trial Court.

Resolution of issues
An issue or objection touching on the jurisdiction of a Court to entertain a matter is of law because it touches on the competence of the Court to entertain the matter placed before it for determination. Hence, where there is an issue touching on the competence of the trial Judge’s determination of the Respondent’s application, this Court has a duty to first resolve that issue before proceeding further to consider other grounds of appeal and the issues distilled from it: EFCC & Ors vs. Odigie (2012) LPELR-15324 (CA), per Yakubu, JCA (p. 18 paras E – G),

AG Lagos State vs. Dosunmu (1989) LPELR-3154 (SC) page 10 paras B, State vs. Onagoruwa (1992) LPELR-3228 (SC) Pp. 26 – 27 paras F – A, Obaba & Ors vs. Military Gov. of Kwara State & Ors (1994) LPELR-2147 (SC) at page 11 paras A – E.

This Court therefore has its priority, the determination of the complaint of the appellant that the issue of jurisdiction it raised was not addressed, and if addressed, it was wrongly decided.

In the case of PDP vs. Ezeonwuka & Anor (2017) LPELR-42563 (SC), it was held:

LPELR-7802 (SC).” Per MUHAMMAD, JSC (Pp. 92-93, paras. D-A)
See also Akeredolu & Ors vs. Aminu & Ors (2003) LPELR-12410 (CA) at page 16, paras B – F, NNPC & Anor vs. Orhiowasele & Ors (2013) LPELR-24710 (SC) at 25 – 26 paras F – A.

Now in this appeal, the Appellant objected to the jurisdiction on two grounds:
i. That the Appellant had already been tried for contempt by a Magistrate Court and discharged and acquitted.
ii. That the prerequisites for commencing contempt proceedings had not been fulfilled in that forms 48 and 49 were not issued before the commencement of the contempt proceedings.

When these two grounds are situated against the background of the question of when a Court is said to have jurisdiction as stated in the case of PDP vs. Ezeonwuka & Anor (supra), it can see seen that the objection is hinged on conditions 3 and 4; which for avoidance of doubt are:
“(3) There is no feature in the case which prevents the Court from exercising its jurisdiction,”
“(4) The case comes before the Court initiated by due process of law and fulfilment of any of the conditions

precedent to the exercise of jurisdiction.”

I will first consider the complaint of the Appellant that the trial Court did not consider his preliminary objection.
On this, it is instructive to take a short trip to the Judgment of the trial Court. It is found at pages 78 – 86 of the record of appeal.
In the Judgment the trial Judge captured the submission of Counsel on the objection. (See page 82, paragraphs 20 – 27 page 84 paras 1 – 7 of the record.
Now, in what seems to be the trial Judge’s decision on the preliminary objection, his Lordship stated thus at page 85, lines 10 – 15:
“I hold the same view with the claimant’s Counsel that the issue before this Court is contempt of Court for disobeying Court order and not for enforcement of Judgment and also of the view that the property was lawfully enforced by the Court which the Respondent tempered with unlawfully…”
I do not consider the portion of the Judgment reproduced above as constituting appropriate decision of the trial Judge on the issue of jurisdiction raised. He ought to have done more. There ought to be explicit

exposition of the law on the arguments of the two counsel. The trial Judge owes it a judicial duty to give reasons why he preferred the views of one counsel to the other. With utmost respect, the learned trial judge did not do enough. My learned brother, Sankey J. was confronted with a similar judgment in the case of ED. Tsokwa & Ors vs. Alh Mijinyawa & Ors (2014) LPELR – 24200 (CA) Per Sankey, JCA (PP. 30-35, Para F). Therein she stated in an unambiguous language, thus:
“I must be quick to respectfully observe at this point that every judge is entitled to adopt his own style of writing judgments whether sitting as a trial Court or as an appellate Court. Nonetheless, what is accepted as universal and indeed settled law is that every judge adjudicating in a matter before his Court has a duty to pronounce judgment on all issues placed before him for resolution. In other words, every judgment has to state the facts of the case, the points in issue requiring the Court to pronounce on them and then set out the Court’s decision with the reasons for the same. However, in view of the way and manner in which the lower Court chose to couch its

Judgment, without beating about the bush, I am sadly but most respectfully, of the view that it fell far short of the requirements of a judgment. It has not been exhaustive and precise as every judgment ought to be. Indeed, the trial Court glossed over the whole gamut of the evidence led before it and this has most certainly occasioned a miscarriage of justice to the parties. The fundamentals of writing a good judgment which a trial Court is enjoined to adhere to as articulated over the years by the Courts of our land, and in particular, by the recent decision of the Supreme Court per Muhammad, J.S.C. in Ishola v. Folorunsho (2010) 6 SCNJ 151 @ 168, amongst others, comprise of: a) Making a brief statement of the type of action/offence being adjudicated upon; b) Setting out the claims/offence in full or in part c) Reviewing of the evidence led; d) Appraising/evaluating such evidence; e) Making findings of fact therefrom; f) Considering the legal submissions made and/or arising and making findings of law on them; and g) Reaching a conclusion, i.e. verdict/final decision/order(s). One of the most important yardsticks of determining a good judgment is the

appraisal or evaluation of the evidence presented before the Court. Without this, it becomes impossible for an appellate Court to carry out its duty and responsibility of examining the decision of the Court below to determine whether or not the decision is in tune with the facts and the law. It must also be comprehended that reviewing evidence is certainly different from evaluating evidence. What a Court does when it reviews evidence is to re-state or re-hash briefly and concisely what the case of each party as presented before the Court is. Thereafter, it becomes obligatory on the Court to go further to consider the quality of the evidence, the weight to be attached to it, and in civil cases, the evidence preponderating on both sides. It is at this stage that the judge uses his imaginary scale to weigh the evidence on both sides. He must then come to an objective decision as to which side of the scale the evidence preponderates and he delivers his decision accordingly. A judge is not allowed to adopt a hop, step and jump procedure by leaping hurriedly from a review of evidence, straight on to the finishing line, (as it were), to deliver a verdict. He must

step into the area where he addresses all the issues raised in the case, appraises the facts, applies the law before he gives his decision and the reasons therefore, i.e. the ratio decidendi. It is well recognized that, as individuals, different Judges have different styles of writing judgments. Whereas some espouse brevity, others are long-winded, while others are in-between. In all these, what is of paramount importance is clarity, a proper consideration and evaluation of the facts as presented before the Court, a proper application of the law to these facts, a decision and the perception of the ordinary reasonable man that justice has been done to all the parties in the dispute. Evaluation is the dispassionate appraisal of the evidence before the Court with a view to finding out which side of the imaginary scale the evidence preponderates. In Anselem Onejeme v. Hon. (Mrs.) Eucharia Azodo & Ors (supra) @ 579 para E, Onnoghen, J.C.A., (as he then was) held thus: “Evaluation is different from summation of evidence. Evaluation of evidence involves a process of reasoning by which the trial Court believes the evidence of one of the contending parties and

disbelieves that of the other; a preference of one version to the other. On the other hand, summation is restatement of the evidence produced by parties.” See also Gatah (Nig) Ltd v. ABU (2005) ALL FWLR (Pt. 278) 1186 @ 1223 para H, wherein this Court again held thus: “It needs be stressed, that a summary or restatement of evidence, is not the same thing, as evaluation of evidence which entails the assessment of evidence so as to give value or quality to it.” In Kaydee Ventures Ltd v. Hon. Minister, FCT (2010) ALL FWLR (Pt. 519) 1079 @ 1104 paras A-C, the apex Court held: “These are all geared towards justifying the averments each of the parties made in his/its pleadings. After the completion of evidence and perhaps closing addresses (where necessary) by the parties, it is now the duty of the learned trial Judge to first of all put the totality of the testimony adduced by both parties on an imaginary scale that is, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then observe which is heavier not by the number of witnesses called by each party, but by the

quality or probative value of the testimony of those witnesses. In determining which side is heavier, the learned trial judge will need to have regard to whether the evidence is relevant, conclusive, admissible and more probable than the one adduced by the other party. It is to be noted that any evidence that was rejected by the trial Judge should not find a resting place on that imaginary scale. The totality of the evidence should be considered in order to determine which has weight and that which carries no weight at all.” Again, in Sule v. State (2009) ALL FWLR (Pt. 481) 809 @ 829 paras B-C, wherein the apex Court per Ogbuagu, J.S.C., succinctly held thus: “It need be stressed and this is also settled that the role of a trial Court is to hear evidence, to evaluate the evidence, to believe or disbelieve a witness or witnesses, to make findings of fact based on the credibility of the witness or witnesses who testified and to decide the merits of the case based on the findings…” Furthermore, it is absolutely the duty of a Court to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision. Where it

fails to do so, such leads to a miscarriage of justice, apart from the fact that it breaches the right of the parties to a fair hearing. In the instant case, the lower Court’s duty to pronounce on every issue raised before it was fundamental to resolving the questions raised in the suit. A failure to do so has been characterized as a failure to perform a statutory duty. In Ovunwo v. Woko (2011) 6 SCNJ 124, reference was made to Brawal Shipping (Nig.) Ltd v. Onwadike & Co Ltd (2000) 6 SCNJ 508, wherein Uwaifo, J.S.C. held as follows: “It is no longer in doubt that this Court demands of and admonishes, the lower Courts to pronounce, as a general rule on all issues properly placed before them for determination in order apart from the issue of fair hearing not to risk the possibility that the only issue or issues decided by them may be faulted on appeal.” Per SANKEY, JCA (Pp. 30-35, para F).

Now, I come to the decision whether the trial Judge’s pronouncement on the preliminary objection as terse as it is, was right.

Before that, I shall also take on Appellants counsel, Mr. A. B. Usman, Esq. I did not want to denigrate him, but I cannot sheer

away from expressing my disappointment with him in the manner he wrote his brief of argument. The cases he relied on and referred the Court to are without citation. How could he do that, and in the Court of Appeal for that matter?

I take note of him and hope he does not repeat that in future because he will definitely incur the wrath of this Court if he does.
I will consider the two grounds separately, beginning with No (3) which is that:
“There is no feature in the case which prevents the Court for exercising its jurisdiction.”
Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:
“No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence, save upon the order of a superior Court.”

In the Respondent’s brief of argument, it is submitted inter-alia in the introductory part of the brief thus:
“…in gross and flagrant disobedience to the

judgment/orders of both Courts, more particularly those of this very Honourable Court, the Debtor/Appellant went back to the properties broke in and re-entered the premises with threats and intimidation, creating chaos leading to almost bloodletting. The said incident was reported to the Borno State Command, which prosecuted the Debtor/Appellant for offences bordering on criminal trespass, criminal intimidation and contempt of Court.
The creditors/Respondents in the lawful pursuit of the fruit of their legitimate labour approached the trial Court for contempt proceedings against the Debtor/Respondent (sic) who had disobeyed its orders.
The Debtor/Appellant was convicted for contempt.” (See page 2 lines 3 – 14 of the Respondents’ brief argument).

In the case at the Magistrate Court even though the police prosecuted, it was at the instance of the Respondents. The defendant who was put on trial for alleged contempt and other offences resulting from the judgment of the lower Court in favour of the Respondents is the Appellant herein.

The judgment of the Chief Magistrate Court 4, Maiduguri is located at pages 60 – 65.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The opening paragraph of the judgment stated:
“The accused was charged for the offences of criminal trespass, criminal intimidation and contempt of Court punishable under Sections 146, 348 and 397 of the Penal Code Law of Borno State.” See page 60 of the record.
At the last paragraph of page 65 of the record, the Chief Magistrate found:
“Finally, from the totality of the evidence adduced from Exhibit “A”, this alone can secure a conviction. The visibility of Exhibits B, B1, and B2 clearly shows that a step was already taken to appeal against the decision. With this, I so hold that I have not found the accused person guilty of the offences charged under Sections 146, 348 and 397. I accordingly discharged and acquit the accused person.”

Now, also in the motion of the Respondents that culminated in judgment in the instant appeal, the following relief, for ease of reference was sought:
“An order committing the judgment Debtor/Respondent for contempt of Court in disobeying the Judgment and orders of this Honourable Court and those of the Court of Appeal in Suits No. BOHC/MG/CV/25/12 and Appeal No.

CA/J/31/2016 delivered on the 04/12/2015 and 24/01/2017 respectively.”

In the Respondent’s brief of argument, Counsel was at pains in trying to convince us that the parties, the issue and subject matter in the case at the Chief Magistrate’s Court and the one before the lower Court are not the same. That the one at the Magistrate’s Court is a criminal case, while the one in the instant appeal is a civil case. The lower Court was misled into toeing counsel’s line of argument. The Respondent’s Counsel accuses the Appellant’s Counsel of misconceiving the issue. I think it is he that has misconceived the issue.

thought who insist that being a criminal matter, there should be a formal charge if the contempt was committed exfacie curiae and if in the face of the Court, the alleged contemnor, in the nature of a criminal allegation shall still be given the opportunity to show cause why he should not be convicted and punished for contempt. Contempt proceedings can ensue from orders made in criminal as well as civil proceedings. I am therefore unable to comprehend the holding of the Court in its agreement with the submission of Respondents’ Counsel that the issue before it was contempt of Court for disobeying Court order, and not enforcement of judgment. If the proceedings at the Chief Magistrate Court was in the bid to enforce the judgment of the High Court and Court of Appeal, why were criminal charges for contempt and other offences which could end up in conviction and sentence preferred against the Appellant? I see nothing in this argument but the dilemma of a drowning man who will clutch at everything in sight to save himself.

The crucial question therefore is whether the Appellant is entitled to the benefit of autrefois acquit as enshrined in

Section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). What autrefois acquit or autrefois convict means and when it can avail one who pleads it was, thus, beautifully explained in the case of PML (Securities) Co. Ltd vs. FRN (2018) LPELR– 47993 (SC):
“Double jeopardy, which prohibits a person from being tried or punished twice for the same offence with the same set of facts, is enshrined as a right under Section 36(9) and (10) of the Constitution of the Federal Republic of Nigeria, 1999, which provides – (9) No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court. (10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence. Section 36 (9) of the 1999 Constitution (as amended) makes it very clear that any accused person, who shows that he had been tried for a criminal offence, and was convicted or acquitted, shall not be tried again

for the same offence or for a criminal offence having the same ingredients as that said offence. In this case, appellant argued that withdrawing the charges against it, amounted to an “acquittal”, which is – “a setting free from the charge of an offense by verdict, sentence or other legal process” – merriam-webster.com. See Blacks’ Law Dictionary, 9th Edition, where autrefois acquit is defined as – (Law French “previously acquitted”) A plea in bar of arraignment that the defendant has been acquitted of the offence – also termed former acquittal. See Double Jeopardy. Cases: Criminal Law; Double Jeopardy: “Suppose that a transgressor is charged and acquitted for lack of evidence, and evidence has now come to light showing beyond doubt that he committed the crime. Even so, he cannot be tried a second time. He has what is termed in legal Frenglish (sic), the defence of autrefois acquit. Similarly, if he is convicted, even though he is left off very lightly, he cannot afterwards be charged on fresh evidence, because he will have the defence of autrefois convict. These uncouth phrases have never been superseded, though they might well be called the defence of

“previous acquittal” and “previous conviction”; and “double jeopardy” makes an acceptable generic name for both.” Glanville Williams, Textbook of Criminal Law. In this case, in resolving this issue against the appellant, the Federal High Court, Benin held that it did not adduce any evidence to show that it had gone through any trial and was convicted or acquitted or pardoned; and that since there was also no evidence of any plea bargain agreement with the prosecution or the EFCC to drop or condone the said charges, then “the doctrine of double jeopardy and abuse of Court process is not available and open” to the appellant herein.” Per AUGIE, JSC (Pp. 42-45, paras. F-B).
I have no doubt in my mind that on the facts before this Court and applicable principles, the Appellant is entitled to the benefit of this plea.
How can he not be? Assuming, the Respondents through the state succeed in their appeal against the discharge and acquittal what would be the fate of the Appellant? It would mean that on the same set of facts he would be punished twice. That is what Section 36(9) of the 1999 Constitution (as amended) set out to prevent.

Next to consider is condition No (4) which is;
“The case comes before the Court initiated by due process of law and fulfilment of any condition precedent to the exercise of jurisdiction.”
There are two shades of opinion as to the condition precedent to commencement of contempt proceedings. There is the school of thought who advocate that being a criminal proceeding, the alleged contemnors should be arrested and charged before another Court where a full trial will be conducted. If they are found guilty after proof beyond reasonable doubt, the contemnors will be punished in accordance with the law. See the case of Babalola & Ors vs. Olulowo (2017) LPELR–45359 (CA), per Sankey, JCA (Pp. 10 -16 paras E-D).
The second school of thought which is in the majority, is the procedure that requires the issuance of forms 48 and 49 annexed with the enrolled order of the Court before the commencement of contempt proceedings. The case of Nwawuba vs. Ezeabasirim & Ors (2018) LPELR–46273 9 (CA), is instructive. It was thus elaborately stated in that the case:
“The law is well developed, as to how contempt proceedings are raised in Court,

especially in civil contempt committed outside the purview of the Court, as opposed to contempt, committed before the Court to be dealt with summarily. Where contempt is alleged to have been committed outside the precinct of the Court, that is, contempt ex facie curiae, the procedure to invoke same is stipulated by law and involves, filing the necessary Forms (Form 48, to bring the default to the notice of the alleged contemnor, and Form 49, issued by the Court registrar, to urge the alleged contemnor to purge himself), and the processes must be served, personally, on the alleged contemnor. See Nwawka Vs Ohazurike (2014) LPELR – 22558 CA. In Egbebu Vs IGP & Ors (2016) LPELR – 40224 (CA), it was held that: “…the essence of issuing forms 48 and 49 in contempt proceedings is to inform and warn the person in disobedience of Court Order (contemnor) of the consequences of such disobedience and afford him the opportunity to correct himself. See Okwueze Vs Ejiofor (2000)15 NWLR (Pt. 690)389 at 407.” Those Forms were not issued in this case at hand, and there was no process, to initiate any against the Appellant. A contempt proceeding is meant to call on one in

disobedience of Court judgment, to order, and to protect the integrity and sanctify of the Court, and ensure effective administration of Justice. Alechenu Vs A.G. Benue State (2011) LPELR – 3981 CA Nwawka Vs Adikamkwu (2015) ALL FWLR – (Pt. 804) 2064; Ogunleye Vs Aina (2012) 28 WRN 41. Contempt proceeding was not intended to be used by an opponent or by a Court, anyhow, to harass, oppress, intimidate and/or cow a party, because he challenged the jurisdiction of the Court, or the competence of an action taken out against him. In the case of Nzidee & Ors Vs Kootu 7 Ors (2006) LPELR – 5519 CA, my Lord Dongba – Mensem JCA said: “A judge is this enjoined to exercise restraint in the use of its powers to punish for contempt. This restraint is further reinforced by the requirement to follow strictly the procedure for contempt proceedings as noted in the decisions of the Supreme Court. Even in the circumstances of contempt in the face of the Court, a judge is required to maintain his/her cool under fire… The judge must be hesitant to commit for contempt, he is always expected to hold his head in time of crises, so as to objectively appraise the situation of the

case before him in order to do justice. Nothing should be done in anger. To be a good judge, it is necessary not only to have a thorough grasp of the law but also important is a good sense of duty and recognition of the necessity to be always above board…” (See also Nzidee & Ors Vs Kootus & Ors (2007) 1 NWLR (Pt. 1014) 99). Contempt of Court cannot be brought through the back door. I think that was what the trial Court tried to do on 23/11/2007, smuggling contempt, proceedings, through the back door, when it devoted the entire time to adjudge the Appellant of flagrant disobedience of the order it made on 15/10/07, and ordered him to appear in Court, to show cause, without giving Appellant a hearing or opportunity to be heard, and when there was no contempt proceedings initiated, anywhere, against the Appellant to justify such attack. See also Nwadike Vs The State (2015) LPELR – 24550 CA; and Ethel Chukwu & Ors Vs Lolo Chukwu & Ors (2016) LPELR – 40553 CA; “Where the need to comply strictly with procedural rules was stressed, since contempt proceedings affect the liberty of individuals, and the Court cannot afford to gamble with the liberty

of persons appearing before it. See Akpan Vs Akpan (1996) NWLR (Pt. 462) 620; Onowu Vs Ogboko & Ors (2016) 1 CAR 167.” Per MBABA, JCA (Pp. 20-23, paras. B-C). See also Agu & Ors Vs. Anyalogu & Ors (2001) LPELR– 5724 (CA), at pages 14 – 16 paras A- D.
The Respondents did not dispute the fact of non service of forms 48 and 49 before the commencement of their contempt proceedings.
It is thus clear that the Respondent’s motion for committal did not come before the Court initiated by due process of law vide the fulfilment of the requisite conditions precedent to the exercise of jurisdiction by the lower Court.
Being contempt proceedings which affects the liberty of a citizen the fulfilment of the conditions precedent must be strictly followed. Issues one and two are hereby resolved in favour of the Appellant and against the Respondent.

Before taking my bow on this issue, I consider it important to share my thought on the proceedings for enforcement of Court orders cum contempt proceedings. There are Judges who would not take kindly to any complaint or allegation that their orders have been disobeyed. They get

so worked up and inflamed on hearing such allegations and would not exercise restraint and caution when hearing the contempt proceedings. I would therefore advocate the view (and no other) as taken by my Lord Hon. Justice Sankey, JCA, in the case of Babalola & Ors Vs. Olulowo (supra); that in the trial for contempt there should be an arrest and a formal charge before another Judge. This procedure also shields the Judge from any allegation of bias.
The additional advantage of the procedure is that where the order alleged to have been contravened is the order made in an interlocutory proceedings, such as interlocutory injunction, proceedings will not be stalled on account of the insistence of the beneficiary of the order to undertake contempt proceedings. As a trial Judge I was inundated with several cases in which the substantive cases were stalled for so many years because of contempt proceedings.

Issue Three
Whether or not the order of vacation made by the Trial Court was valid or not.

In resolving this issue I like to take us to the relief prayed for in the motion for contempt. See page 1 of the record of appeal. The whole intent of

the motion is to have the Appellant committed for contempt of orders made in Suit No. BOHC/MG/CV/25/12 and Appeal No. CA/J/31/2016 delivered on the 4th day of December, 2015 and 24th January, 2017 respectively. Contempt proceedings presupposes the subsistence of orders already made that had been disobeyed. Therefore there cannot be any room to make additional orders under the guise of the omnibus prayer, numbered 2 on the motion paper. It is a relief not asked for and cannot be granted.
It is clearly the law that a Court cannot give a relief not asked for unless it is consequential.
See the cases of Makanjuola & Anor vs. Balogun (1989) LPELR – 1827 (SC), page 20 para E, Awojugbagbe light Industries Ltd vs. Chinukwe & Anor (1995) LPELR – 650 (SC), at page 75 paras E – F.
Looking at the nature of this application, even if that relief was prayed for it is not one that the Court can grant.

I therefore arrive at the conclusion that issue three is resolved in favour of the Appellant and against the Respondent.

Now, before I seal up in this appeal, I like to state that the motion from which this appeal emanated

should not have been filed if counsel had properly advised the Respondents. The Respondents took the right step by complaining against the disobedient and violent behaviour of the Appellant to the Police who charged him to the Chief Magistrate’s Court. The Respondents, also being dissatisfied with the discharge and acquittal of the Appellant filed an appeal to the High Court of Borno State and instead of pursuing that appeal to its logical conclusion turned round to set in motion the committal proceedings on the same facts. There was no justification for this. As a counsel who knows the law, even on the insistence of the Respondents he should have maintained his ground as the person in charge to resist that temptation.

All issues having been resolved in favour of the Appellant, I find this appeal meritorious.

It is hereby allowed. Accordingly, the Ruling/Judgment of the lower Court in Suit No. BOHC/MG/CV/41M/2019 delivered by Hon. Justice Hadiza Ali Jos on 20th February, 2019 is hereby set aside. Consequently the Appellant is discharged and acquitted.
No order as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the

lead Judgment of my learned brother, Abundaga, J.C.A.

I agree with his reasoning and conclusions and therefore adopt them as mine. In furtherance of this agreement, I will add a few words.

From the facts placed before the learned trial Judge, the Appellants were reported to the Police, having purportedly disobeyed/flouted the Orders of the High Court by again taking-up residence in the property the subject of the Judgment, where they had earlier on been ejected/evacuated in execution of the Judgment of the said Court. The Police, in due execution of their duties, filed a formal charge against the Appellants before the Magistrate Court (at the instance of the Respondents) alleging criminal trespass, criminal intimidation and contempt of Court contrary to Sections 146, 348 and 397 of the Penal Code Laws of Borno State. At the close of trial, the learned trial Magistrate found the Appellant not guilty of the offences charged and consequently, discharged and acquitted him of the three-count charge.

The Respondents not satisfied with this decision, instead of filing an appeal, proceeded to file a fresh application before the lower Court by way of

a motion on notice purporting to commence contempt proceedings against the Appellant for allegedly flouting the same Orders of the Court awarding title to the Respondents. It is manifestly clear that this was the same reason for which the Appellant had been arraigned before the Magistrate Court, tried, discharged and acquitted.

Thus, from the facts of the case, there is no doubt that the Appellant is entitled to the benefit of the plea of autrefois acquit a.k.a. autrefois convict as enshrined in Section 36(9) of the Constitution of the Federal Republic of Nigeria (as amended). This is undoubtedly because he was being punished on the same set of facts twice. This is what is also referred to as double jeopardy and is not allowed by our Constitution – PML (Securities) Co. Ltd V FRN (2018) LPELR-47993(SC) 42-45, F-B, per Augie, JSC.

In addition to this, the procedure by which the contempt proceedings were commenced was also faulty. It is not disputed that prior to the filing of the application, the Respondents did not serve the requisite Forms 48 and 49 on the Appellant. Thus, the conditions precedent to the commencement of the action, as

enshrined in the Sheriffs and Civil Process Act, were undoubtedly not met, especially as the contempt was said to have been committed ex facie curiae – Nwawuba V Ezeabasirim (2018) LPELR-46273(CA) 20-23, B-C, per Mbaba, JCA; Egbebu V IGP (2016) LPELR-40224(CA).

It is therefore for these reasons, in conjunction with the comprehensive reasons in the lead Judgment of my learned brother, that I find the Appeal pregnant with merit. It succeeds and is allowed. I abide by the consequential Orders made therein.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother ABUNDAGA JCA, I agree that this appeal is meritorious and hereby allowed. I abide with all the consequential orders in the lead judgment and adopt them as mine.

Appearances:

B. USMAN, ESQ. For Appellant(s)

H. ALIYU, ESQ. For Respondent(s)