MR. CHRISTIAN OBIUKWU v. JULIUS UGWUERUCHUKWU & ORS
(2019)LCN/12707(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/OW/224/2010
RATIO
COURT AND PROCEDURE: WHAT THE JUDGE MUST DO
“A Judge must act and pronounce on the case and issues properly brought before it, based on the facts and evidence adduced, and is not permitted to wander from case and issues raised, to scout for facts and evidence to make a case for or support the wish and/or fantasy of any party. See the case of Suberu Vs The State (2010) LPELR – 3120 SC (2010) 8 NWLR (Pt.1197) 586; Ajuwon Vs Akanni (1993) 9 NWLR (Pt.505) 422; Olorunfemi & Ors Vs Asho & Ors (1999) 1 NWLR (Pt.585) 1; Obi Vs A.G. Imo State (2014) LPELR 24280 CA; Nwafor Vs NCS & Ors (2018) LPELR 45034 CA.” PER ITA GEORGE MBABA, J.C.A.
COURT AND PROCEDUR: WHERE THERE IS CONTENPT OF COURT
“…contempt of Court was not meant to be wielded by the Court as an instrument of intimidation, or a club of offence, to harass and subjugate and hew down litigants, lawyers and persons within the precincts of the Court, or outside. Contempt of Court is not meant to be used as a weapon or means of showing strength and power by the judge.’ See also Nwadike Vs The State (2015) LPELR 24550 (CA); Ethel C. Chukwu & Ors Vs Lolo Stella C. 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.402) 620; Nwadike Vs State (supra); Onowu Vs Ogboko & Ors (2016) 1 CAR 167” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
MR. CHRISTIAN OBIUKWU Appellant(s)
AND
1. JULIUS UGWUERUCHUKWU
2. ALPHONSUS AGWUBUO
(For themselves and on behalf of Umuanunike family of Ibeama, Ekwe)
3. MR. OLIVER DURU
4. MR. LINUS DURU
(Substituted by Order of Court made on 24/10/2018)
(For themselves and on behalf of Umudimoha family of Ibeama, Ekwe) Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
Appellant filed this appeal against the Ruling of Imo State High Court, in the consolidated Suits No. HOR/12/74 and No. HOR/124/74, delivered on 31/6/2007 by Hon. Justice I.O. Agugua, wherein the Learned Trial Judge held in favour of the 1st set of Respondents in the consolidates suits (based on their suit No. HOR/124/74), and committed the Appellant and others (including the 2nd set of the Respondents) for contempt of Court.
As at 30th July 1987, the learned trial judge, A.A. Ononuju J; had given judgment in the consolidated suits Nos. HOR/12/74 and HOR/124/74, to the effect that the Defendants therein (1st set of Respondents herein) were:
entitled to the Customary Right of Occupancy in respect of all that piece or parcel of land in dispute, ALA UMUAMA verged pink in plan No. FCO/D15/75 filed with their pleadings; That the portion of the land in dispute called ?ALA IHEDIOKE? verged Yellow in Exhibit ‘B’; One Hundred Naira (N100.00) damages to the Defendants for trespass against the plaintiffs; One Thousand Naira (N1000.00) damages to the Defendants being value of Iroko and Anwusi trees cut by the plaintiffs; perpetual injunction Restraining the plaintiff, their servants and agents from further trespass on the said land or from acting in any way in violation of the Defendants rights over the said land. It is further ordered that the Plaintiffs pay costs of One Thousand Naira (N1000.00) to the Defendants. See the Court Order on pages 2 and 3 of the Records of Appeal.
The claims (Reliefs sought) of the Respondents in the suit No. HOR/124/74, as per their Amended Statement of claim, filed on 21/5/84, were for:
1) Declaration of title to the piece and parcel of land known as ?Ala Uhu Amo? including its little portion called Ala Ihendioke shown in the plan No. FCO/D15/75 filed with the statement of claim and situate and lying at Ibeama Ekwe within jurisdiction.
The annual value is N20.00 (Twenty Naira).
1a) Declaration that the plaintiffs had effectively redeemed the portion of the said Ala Uhu Ama known as Ala Ihendioke in accordance with the custom of Ekwe.
2) N100.00 (One Hundred Naira) general damages for trespass, in that sometime in 1974 and since then the defendants caused the said portion to be cleared and cultivated and entered therein, without the leave of the plaintiffs in possession thereof and also cut down the iroko tree and anwusi tree therein and have continued to assert ownership of the land and economic trees thereon, the property of the plaintiffs’.
3) N500.00 (Five Hundred Naira) general damages
4) Perpetual injunction restraining the defendants, their servants and agents from further trespass on the land, or from acting in any way in violation of the plaintiffs rights?. See pages 8 and 9 of the Additional Records of Appeal.
(It should be noted that upon the consolidation of the two suits the plaintiffs in HOR/ 124/74 became Defendants in the consolidated suits, and thus were referred in the judgment as Defendants. And there is nothing to show that the above judgment of 30/7/87 was appealed against).
But in 2001, Appellant said, due to changes in political configuration and arrangements in their community, the government created a new autonomous Community from the old Ekwe, and individuals indicated interest in the Ezeship of the new autonomous Community; that a total of three different panels or arbitrations were set up to resolve the issues of who to be/produce the Eze of the new Autonomous Community, namely:
1) That there was in 2001 a panel headed by Hon. Justice P.C. Onumajulu, who after hearing the parties, suspended the new autonomous community, because the parties could not agree on who the Eze or king should be;
2) The 2nd was Exhibit JUAI, dated 28/3/2005 at the instance of the Respondent herein, which the Appellant refused to submit to same;
3) The 3rd was Obi – Eziokwu Ekwe i.e. a body of Ndi Ezena Ozo title holders in Ekwe, dated 23/4/2006 at the instance of the Appellant, and the body found in favour of the Appellant.
Appellant said, it was this last decision that favoured him in the selection of the Eze that made the 1st set of Respondents to be against him and to resort to allegation of contempt of Court, and so they caused the Assistant Chief Registrar of the High Court to issue Form 48 against him (Appellant) and 5 others, dated 15/9/2006. And on 18/10/2006 they (1st set of Respondents) filed Form 49 (NOTICE TO SHOW CAUSE WHY ORDER OF COMMITTAL SHOULD NOT BE MADE) against them (Appellant and the 5 others). The said Form 49 was issued and signed by the Respondent?s Counsel, instead of the Registrar of the Court.
Appellant had filed counter affidavit and also raised a preliminary objection to the contempt process. After hearing the parties on the preliminary objection, as well as the contempt proceedings, taken together, the trial Court dismissed the preliminary objection and found Appellant and the others guilty of contempt of the judgment of Court, delivered on 30/7/87.
It held:
‘Exhibit ‘JUI’ of the Respondents is in contempt of the Judgment of Orlu High Court Per Ononuju J, in suit Nos. HOR/12/74 and HOR/124/74: Between George Duru and Another (For themselves and on behalf of Umudimoha family of Ibeoma Ekwe) And Julius Agwoeruchukwu and Another (for themselves and on behalf of Umuanunike family of Ibeoma Ekwe). The Respondents have not shown any cause why an order for their Committal should not be made as the law enjoins me to commit to prison and detain in custody, a party who fails to comply with the order or a person who is in contempt of such Court. To this end, again using the discretion allowed me in law, I make the following Orders:
Respondents are to purge themselves of the contempt committed, by paying into government funds through the Assistant Chief Registrar (A.C.R) of this Court the sum of N10,000.00 each, or failing which will serve 3 months prison term with hard labour. Payment will be duly receipted. Respondents will jointly pay N10,000.00 cost for the cost of this suit. See page 47 of the Records of Appeal.
That is the decision Appellant appealed against, as per the 2nd Amended Notice of Appeal, filed on 5/11/2018, (with the leave of this Court). Appellant filed his brief (2nd Amended Appellant?s Brief) on 5/11/2018, and an amended Reply Brief on the same 5/11/18, all with the leave of this Court, granted on 24/10/18. In the Brief Appellant distilled three (3) issues for the determination of the Appeal, namely:
1) Whether the committal proceeding filed on 18/10/2006 is competent. (Ground one)
2) Whether Suit No. HOR/124/74 and the judgment thereon raised any claim, or resulted in the issuance of an order touching on the headship or seniority of Ibeama Community capable of enforcement (Ground 2)
3) Whether the learned trial Court properly resolved the conflicting affidavit evidence before it to the effect that in 2001, when Ibeama was recognized as autonomous community, the representatives of the Appellant and Respondents appeared and submitted themselves to various arbitrations to select who should be the Eze of the Community, which is different from the land dispute the parties fought in suit No. HOR/12/74 and HOR/124/74. (Grounds 3 and 4).
The Respondents (1st set) filed their brief on 8/11/2018 and adopted the issue 1 as distilled by the Appellant, and went on to distill 3 more issues, as follows:
2) Whether the Judgment in Suit No. HOR/124/74/HOR/12/74 made findings or decided in one way or the other the issue of who is senior/head in Ibeama community, as between Umudimoha and Umuanunike in the cause of the lower Court, arriving at its final decision over the matter as initiated, canvassed and contested before it and whether that finding can by law be taken to a native panel for review?
3) Whether the findings of the lower Court as to who is senior/head between the two families of Umudimoha and Umuanunike is capable of enforcement by contempt proceedings as was initiated, whereupon the lower Court convicted the Appellant and 5 others?
4) Whether the trial Court which committed the appellant and 5 others who did not appeal the conviction properly committed them based on the affidavit evidence placed before the trial Court?
Arguing the appeal on 15/1/19, Appellant’s Counsel Ken E. Mozia SAN, with him J.I. Odibeli Esq and NSC Adipuo Esq on issue one, said the committal proceedings were incompetent as the Form 49 was not issued by the Registrar of the Court, but by the Applicant?s Counsel, who signed the process. He relied on the provisions of the Sheriffs and Civil Process Act (Cap 407), Laws of the Federation (or Cap 118 laws of Eastern Nigeria 1963 applicable to Imo State) as the laws guiding committal proceedings; he said that the law must be complied with, strictly, since the proceedings is capable of curtailing the liberty of citizens.
He relied on the case of Comet Products UK Ltd Vs Hawkex Plastics Ltd (1971)2 QB at 67; Abbas Vs Solomon (2001)2 LRCN 2684. He said that, because application for committal for contempt is a very serious matter, as it involves, in most circumstances, exceptional interference with the liberty of citizen, the antecedent process has to be complied with, strictly, and every prescribed step and rule carefully followed and observed; he said that any irregularity in the procedure for committal is a fundamental vice, which vitiates the entire application and committal proceedings. He relied on Aster Vs Gachi (1997)6 NWLR (Pt.510)609 at 624; Baoyo Vs The State (1970)1 All NLR 318; Dikibo Vs Ibuluya (2006)1 All NLR (Pt.1006) 563 at 577; Deduwa Vs The State (1975)1 All NLR (Pt.1) 15.
Thus, Counsel said, since the Form 49 did not comply with the mandatory provisions of Order 9 Rule 13(2) of the Judgment Enforcement Rules, the proceeding was incompetent. He relied on the case of Okwueze Vs Ejiofor (2000)15 NWLR (Pt.690) 389, to say that under Order 9 Rule 13 (1) and (2) of the Judgment Enforcement Rules, the authority to issue Forms 48 and 49 lies with the Registrar of Court.
He also relied on A.G. Anambra State Vs Okeke (2002)12 NWLR (Pt.782) 572; Nwankwo Vs Yar’Adua (2010)12 NWLR (Pt.1209) 518, Amadi Vs NNPC (2000)10 NWLR (Pt.674)76.
Counsel also relied on the , Injunction and Enforcement Orders’ by Afe Babalola, SAN page 276, and on the case of Nnonye Vs Anyichie (2000)1 NWLR (Pt.639) 66 at 75; N.W.A. Vs SPDC (Nig.) Ltd (2007)1 NWLR (Pt.1015) 305; Idris Vs Abubakar (2011) All FWLR (Pt. 557) 733; Manson Vs Halliburton Energy) Services Ltd (2007)2 NWLR (Pt.1018) 219.
On issue 2, whether the suit and judgment in HOR/124/74 raised any claim/or resulted in the issuance of an order touching on headship or seniority of Ibeama Community, Capable of enforcement, Counsel answered in the negative.
He reproduced the reliefs sought in the suit and the decision (Orders) entered by the Court on 30/7/87 and submitted that the complaint on which the contempt proceedings was founded was strange to the case and the judgment; that it was curious the learned trial Court acceded to the prayers of the Respondents, in the circumstances, as the Appellant neither disobeyed nor was in contempt of the orders of Court in the said judgment to warrant his being charged and convicted for contempt.
He argued that an order of Court must be based on the case made out by the parties at the trial, the reliefs sought and the final orders made in the judgment; that from the totality of the reliefs sought by the 1st set of Respondents, herein, as counter-claimants in HOR/12/74, and the orders made by the Court in the judgment, there was nowhere the headship or seniority of Ibeama Community ever made the basis of the reliefs nor was the orders of Court or the judgment based on such headship or seniority. Rather, he said, the issue in the case and judgment was strictly on title to land; that the alleged contempt had nothing to do with the case or any disobedience of the enrolled orders of Court; Counsel said that one can only be committed for disobeying a valid existing order of Court. He relied on Gay Vs Hancock (1887) 56 LT 726, cited in Abbas Vs Solomon (2001)90 L.R.C.N. 2683 at 2684.
On issue 3, Counsel submitted that the trial Court did not properly evaluate the affidavit evidence before it, to appreciate that the case of Selection of Eze for Ibeama Community had nothing to do with the land dispute/matter decided in the consolidated suit No. HOR/12/74 and HOR/124/74.
He argued that committal proceedings are criminal in nature and so proof of same and issues therein must be beyond reasonable doubt (A.G. Anambra State Vs Okeke (2002) Vol. 99 LRCN 1545); he said that in this case the fact of breach or disobedience of any valid order was not proved against Appellant, yet the trial Court went ahead to commit him for contempt. He argued that Exhibit ?JU1? had no nexus with the judgment in HOR/12/74 and HOR/124/74. He relied on the case of Newswatch Communication Ltd Vs Atta (2006) Vol. 139 LRCN 1918 to say that litigation is not a game of chess or football match, where parties are permitted to outsmart each other by tricks and dribbling; that the Respondents cannot be allowed to use sophistry to win land dispute and use the same, after many years, to fence off Appellant?s interest in Ezeship of his community and/or apply it to blackmail and incriminate him; he said that the judgment in the consolidated suit could not have been written in anticipation of creation of Ibeama Autonomous Community and the consequential headship tussle, thereof.
Counsel added that a trial Court has the duty to assess the evidence of parties; that where a trial Court failed to evaluate the evidence, correctly, or its judgment is shown to be affected by extraneous factors, or occasioned a miscarriage of justice, the Appellate Court will interfere and re-assess the evidence, correctly. He relied on the case of Owie vs Ighiwi (2005) Vol. 124 LRCN 509. He called on us to re-assess the evidence and come to a proper and correct conclusion, that the issue in the consolidated Suits, HOR/12/74 and HOR/124/74, had to do with land matter, not leadership or Ezeship of Ibeama Community.
Respondents’ Counsel, Ben Ugwoeruchukwu Esq, on Issue 1, said the Form 49, being complained of, was endorsed on, paid for and issued by the registrar of the Lower Court for service on the parties committed, and the service was affected by the bailiff of the Lower Court. He said that Form 49, as per the appendix in the Sheriffs and Civil Process Act, has no place for signature of registrar, as in Form 48; he said that Counsel for Respondents, who were Applicants for the committal proceedings, signed the process, which was normal and that did not make Form 49, incompetent; he said that there was no breach of the rules, as the Form 49 issued, complied with the law, having been accepted by the registrar of the Court, who assessed and endorsed the same for service, and inserted on it a date for the hearing. He asserted that the trial Judge considered the competence of the processes (Forms 48 and 49) and held that he saw no incompetence in the processes.
He added that the complaint of Appellant was inconsequential and that the trial Court was right to dismiss the preliminary objection questioning the competence of the Forms 48 and 49 and to use the same to resolve the case against Appellant. He added that non-compliance with rules of Court may not be fatal in every situation. He relied on Uriel Ezeji Vs H.C. Ike (1997) 2 NWLR (Pt.486). He also relied on Anyanwoko Vs Okoye & Ors (2010) 1 SCNJ 148 on the issue of rules of Court and non-compliance with rules of procedure as at where the Registrar fails to sign a summons or the likes. He said that a careful reading of the provisions of Order 9 Rule 13 of the Sheriffs and Civil Process Act, and a plethora of decided cases, pre-supposes that it is not in all cases that the services of Forms 48 and 49 becomes necessary; that where the parties, sought to be convicted, were aware of the decision of the Court, service is not necessary. He referred to the case of Onagoruwa Vs Adeniji (1993) 5 NWLR (Pt.293) 317. He added that failure to attach Forms 48 and 49 to contempt proceedings has been held not to be licence to breach the order of Court. He relied on Fame Publications Ltd Vs Encomium Ventures Ltd (2000) 8 NWLR (Pt.667) 105; Okwueze Vs Ejiofor (2001) FWLR (Pt.48) 1277. Counsel also relied on the case of Abubakar & Ors Vs Yar’Adua & Ors (2008) 1 SCNJ 549 at 582, to say that the need to comply with rules of Court does not imply being slavish to it at the expense of substantial justice.
On Issues 2 and 3, whether the issue of seniority and/or headship between the families of Umuanunike and Umudimoha arose in the consolidated cases of HOR/12/74 and HOR/124/74, and the judgment thereof, Counsel answered in the affirmative. Counsel referred us to page 32 of the Supplementary Records, where he said the trial Court in the consolidated Suits (judgment of 30/7/87) said:
“I consider it pertinent and also convenient to make finding on each of the said 8 Issues, not necessarily following the order on which Mr. Ilobi outlined them. I will start with issue number three (3), namely, which one of the ancestors of the parties was senior to the other: Dimoha of the Plaintiffs or Anunike of the Defendants. Each claimed their ancestor was the first and gave evidence to that effect. The Defendant relied on Exhibit D, a document of the selection, identification, presentation of traditional Ruler in the Ekwe autonomous community’ Exhibit D talks about seniority all through. It is therefore my finding that in Ibeama Village the head is from Umuanunike of the Defendant’s kindred. It is in evidence that the head of Ibeama is also the head of Duruama. The head of Duruama was the 1st son of Duruama. I find as fact that Anunike, the ancestor of the Defendants was the first Duruama. I believe the Defendants and their witnesses on this issue of seniority. The land in dispute is called ‘ALA UHU DURUAMA ‘Ala Uhu’ is always inherited by the oldest son of the father.”
Based on the above findings of the Court in the consolidated Suits, Counsel said the issue of leadership and seniority formed part of that Court?s judgment, and so, the trial Court, who considered the contempt proceedings, was right to draw the conclusion, that Appellant and the other contemnors disobeyed or breached the order of the Court in the consolidated case, when the Appellant contested the Ezeship of the Ibeama Community; that the Respondents had right to enforce the findings about their seniority and right to leadership of the Community. He argued that Appellant and the other contemnors were aware of the findings of the Court in the consolidated Suits and that in their Counter-affidavit, Chief Ambrose Obiukwu had on 25/1/88 admitted being aware of the decision of the Court and deposed:
‘that I obey the order of Court and respect the findings of facts on headship of Ibeama and shall continue to respect and obey the orders of Court till our appeal is heard and determined.’
Counsel relied on the case of Karibo Vs Grend (1992) 4 SCNJ 12 at 20 on what a findings of Court in judgment signifies.
He agreed with Appellant as to what constitutes contempt of Court, as per the case of Abbas Vs Solomon (Supra).
Counsel argued that, even without a Court order being attached to Form 48, the contemnors are deemed to be aware of the decision of Court; that having caused people to sit over the judgment of the Court in the consolidated suits (Exhibit JU2) and procure Exhibit JUI (Arbitration decision that favoured Appellant in the Ezeship contest), in contempt of the findings of Court in Exhibit JU2, the lower Court was right in its decision, committing Appellant and others for contempt.
On issue 4, Counsel asserted that the lower Court, properly evaluated the affidavit evidence; he said that there was no conflict in the affidavits and counter-affidavit to require resolution, one way or the other, by the lower Court before it could reach its decision. He said that the issues being raised by Appellant were not in contention, as most of them were issues of undisputed facts.
Counsel urged us to resolve the issues against the Appellant had and to dismiss the Appeal.
Appellant filed a Reply Brief, which tended to raise preliminary objection against the validity or competence of issues 2 and 3 formulated and argued in the Respondent’s Brief of Argument in that the two issues are distilled from Grounds 2 of the Appellants’ Grounds of Appeal; and that the Respondents did not file cross-appeal to the appeal filed by Appellant.
It is difficult to understand what Appellant meant by raising preliminary objection against the validity or competence of issues 2 and 3, allegedly distilled from ground 2 of the Grounds of Appeal.
Of course, the Respondent did not formally, relate any of the issues distilled by them to any of the grounds of Appeal. They distilled 4 issues, altogether, and there were four grounds of Appeal. I do not therefore know how Appellant came by the distilling of issues 2 and 3 from Ground 2 of the Appeal, as that is not borne out of the records, or the brief. The other issues raised in the Reply brief, in my view, only tended to re-enforce the Arguments of Appellant in the Brief of Argument, which does not accord with the purpose of Reply Brief in an appeal. See Oguanuhu & Ors Vs Chiegboka (2013) LPELR 19989 SC; Ecobank Vs Honey Well Flour Mills Plc (2018).
RESOLUTION OF ISSUES
I think the three issues donated by Appellant for the determination of this appeal are more apt, but they can still be further compressed into two, namely:
1) Whether the processes (Forms 48 and 49) filed by the Respondents complied with the law and/or were competent to sustain valid contempt or committal proceeding, and
2) Whether the issue of Leadership (Ezeship) contest which brought about the contempt/committal proceedings, formed part of the Judgment/Order of the Court in the consolidated suits No.HOR/12/74 and HOR/124/74, delivered on 30/7/87, to warrant the conviction of Appellant (and others) by the learned trial Judge Hon. Justice I.O. Agugua, on 26/6/2007 for contempt of Court?
I shall take the two issues, together.
The law imposes strict compliance with rules and procedures of Court, when a party seeks to activate or is activating committal proceedings, to punish another party, for flouting or disobeying Court Orders, or operating in contempt of Court. This is because, among other things, the liberty of a citizen is involved and an allegation of contempt of Court is a quasi-criminal action, which also requires strenuous proof, and compliance with due process. See the case of Akpan Vs Akpan (1996) 7 NWLR (Pt.462) 620 at 626, where my lord, Niki Tobi JCA (as he then was and now of blessed memory) held:
‘Since contempt proceedings affect the liberty of the individual, the law expects strict compliance with the procedural rules. Therefore, where there is the slightest deviation or non compliance with the procedural rules, a Court of law must exercise its discretion in favour of the contemnor. This is because the law cannot afford to gamble with the liberty of the individual.’
And in the case of Alhaji Mora & Ors Vs Dr. Adeyeye (1990)4 NWLR (Pt.142) 76, it was held that, in proceedings relating to contempt of the order of Court, every document that is served on an alleged contemnor, must have the imprimatur of the Court and must not look like or give the impression that it is coming from an individual or a private source.
See also F.C.D.A. Vs Koripamo Agary (2010)14 NWLR (Pt.1213) 377, where it was held that any irregularity in the procedure for committal is a fundamental vice, which vitiates the entire application.
In the case of Okwueze Vs Ejiofor (2000)15 NWLR (Pt.690) 389 at 407, it was specifically stated that:
‘The issuance of the two Forms i.e. Forms 48 and 49, by the Registrar of the Court is sustained desire to remind the person against whom the two Forms are issued of two things. Firstly, that a Court order exists, which the party was commanded to obey. Secondly, by Form 49, such a person is notified that proceedings to enforce the Order of the Court would therefore be commenced against him. That is the essence of issuance of the two forms.’See Odu Vs Jolaoso (2003)8 NWLR (Pt.823) 574 at 560.
See also the recent decision of this Court, in the case of Onowu Vs Ogboko & Ors (2016) LPELR ? 40074 CA, which considered all the above principles of law. Of course, the applicant must identify the Order of Court which the contemnor has violated.
‘There is a consensus that the Form 48 in this case, at hand, was issued by the Registrar of the lower Court, who signed the same. (See page 3 of the Records of Appeal). There is also agreement that Form 49 was signed by the Counsel for the Respondents. The Respondents’ counsel admitted that much in paragraph 4.02 of the Respondent brief, where he said:
“The Form 49 as per the appendix in the sheriffs and civil process Act has no place for signature of registrar as in Form 48. That the Counsel to the Respondents, who were Applicants in the lower Court, signed it (which is normal) did not make it incompetent. How does one apply to the Registrar to issue Form 49
Counsel, therefore, argued that because the Registrar accepted the Form, signed by the Applicants’ Counsel, endorsed it for service and fixed a date for hearing of the application, and that Applicants paid the requisite fees, so the process was no longer incompetent. Of course, such dressing of an incompetent Form 49 would not, and cannot cure what is intrinsically, a defective and incompetent process.
I believe what makes Forms 49 is not the fact of the title given to it by whoever types a piece of paper as Form 49 (so called), or that such legal jargons/words are inscribed in the paper. It is the fact of it being issued by due process, signed by appropriate authority, (in this case the Registrar of the Lower Court) that makes the Process to acquire the toga of Court process – Form 49!
Order 9 Rule 13(1) and (2) of the Judgment (Enforcement) Rules, Cap. 56, Laws of the Federation (or Sheriffs and Civil Process Act) stipulates that if a judgment debtor fails to obey the order of Court, the Registrar of the Court, upon application of the judgment creditor, shall issue Form 49, not less than two clear days, after service of the endorsed copy of the order, and the Notice shall be served on the judgment debtor in like manner as a judgment summons. See Onowu Vs Ogboko & Ors (2016) LPELR 40074 CA.
Of course, by the authorities of several judicial pronouncements, Form 49, issued and signed by a legal practitioner representing the applicant or by the applicant, himself, is incompetent, as the imprimatur of the Court is not on it, rather the impression of a private individual who is on a course, for vengeance, or to intimidate and harass his opponent. See the case of Onowu Vs Ogboko (supra); Mora & Ors Vs Adeyeye (1990) 4 NWLR (Pt.142) 76. Such flaw amounts to a fundamental vice that vitiates the alleged Form 49, reducing it into a mere piece of paper, wanting in what it purports to be, and making nonsense, the entire process of the committal proceedings. See F.C.D.A. Vs Koripamo-Agary (2010) 14 NWLR (Pt.1213) 377; Okwueze Vs Ejiofor (2000) 15 NWLR (Pt.690) 389.
The learned trial Judge, Ononuju J., was therefore, in my view, in grave error, when he dismissed the preliminary objection against the use of such flawed process to consider the application for committal of the Appellant and the other alleged contemnors, and to rely on the same incompetent process to convict Appellant for contempt of Court.
The conviction of Appellant (and others) for contempt of Court, became more strange and fictional, when the Judgment/orders of Court and the reliefs sought in the case, which brought about the judgment/orders are examined and analyzed, vis–vis, the ground(s) for committing Appellant for contempt. I had earlier reproduced the reliefs sought in the consolidated Suits Nos. HOR/12/74 and HOR/124/74 (particularly HOR/124/74) on which the judgment of the Court was founded, and the Court orders of 30/7/87. The Reliefs by Respondents were:
1) Declaration of title to the piece and parcel of land known as ?Ala Uhu Amo? including its little portion called Ala Ihendioke shown in the plan No. FCO/D15/75 filed with the statement of claim and situate and lying at Ibeama Ekwe within jurisdiction.
The annual value is N20.00 (Twenty Naira).
1a) Declaration that the plaintiffs had effectively redeemed the portion of the said Ala Uhu Ama known as Ala Ihendioke in accordance with the custom of Ekwe.
2) N100.00 (One Hundred Naira) general damages for trespass, in that sometime in 1974 and since then the defendants caused the said portion to be cleared and cultivated and entered therein, without the leave of the plaintiffs in possession thereof and also cut down the iroko tree and anwusi tree therein and have continued to assert ownership of the land and economic trees thereon, the property of the plaintiffs?
3) N500.00 (Five Hundred Naira) general damages
4) Perpetual injunction restraining the defendants, their servants and agents from further trespass on the land, or from acting in any way in violation of the plaintiffs rights’. See pages 8 and 9 of the Additional Records of Appeal.
And the Orders were:
entitled to the Customary Right of Occupancy in respect of all that piece or parcel of land in dispute, ALA UMUAMA verged pink in plan No.FCO/D15/75 filed with their pleadings; That the portion of the land in dispute called ‘ALA IHEDIOKE’ verged Yellow in Exhibit ‘B’; One Hundred Naira (N100.00) damages to the Defendants for trespass against the plaintiffs; One Thousand Naira (N1000.00) damages to the Defendants being value of Iroko and Anwusi trees cut by the plaintiffs; perpetual injunction Restraining the plaintiff, their servants and agents from further trespass on the said land or from acting in any way in violation of the Defendants rights over the said land. It is further ordered that the Plaintiffs pay costs of One Thousand Naira (N1000.00) to the Defendants.? See the Court Order on pages 2 and 3 of the Records of Appeal.
The trial Court in the judgment of 26/6/2007 had held Appellant and others were guilty of contempt for disobeying the above cited judgment/order of Court in HOR/12/74 and HOR/124/74 delivered on 30/7/87, because Appellant showed interest in, and contested for the Ezeship office/title in his community, and was selected by an arbitration panel for the office as per Exhibit JU1. The trial Court said:
Exhibit ‘JU1’ of the Respondents is in contempt of the judgment of Orlu High Court per Ononuju J, in Suits Nos. HOR/12/74 and HOR/124/74 between George Duru & Another (for themselves and on behalf of Umudimoha family of Ibeama Ekwe) AND Julius Ugwueruchukwu and another (for themselves and on behalf of Umuanunike family of Ibeama Ekwe). The Respondents have not shown any cause why an order for their committal should not be made as the law enjoins me to commit to prison and detain in custody, a party who fails to comply with the order or a person who is in contempt of such Court order page 47 of the Records of Appeal.
I have looked at and studied the judgment, to see the specific order of Court, or any part of the judgment of the Lower Court, by Ononuju J, delivered on 30/7/87, which Respondents in the application for contempt (Appellant, herein, inclusive), breached, disobeyed and/or violated. I cannot spot any, as it is obvious, that the reason/grounds for raising the contempt proceedings, and for holding Appellant culpable is completely alien to the judgment/orders of Court made on 30/7/87!
The tenor of the consolidated Suits HOR/12/74 and HOR/124/74, was a claim for title to land. Both the pleadings and reliefs sought in the consolidate Suits presented a contest for land, and title to land (not Ezeship or Chieftaincy title). And the judgment of the Court (founded on Respondents? Suit No. HOR/124/74) had granted title to land, that Respondents, were:
‘entitled to the Customary Right of Occupancy in respect of all that piece or parcel of land in dispute ALA UNUAMA, verged pink in Plan, No. ECO/015/75, filed with their pleadings; that the Defendants have effectively redeemed the portion of the land in dispute called -ALA IHEDIOKE and perpetual injunction restraining the Plaintiffs, their servants and agents from further trespass on the said land.
How the above judgment/orders of the trial Court (which the Appellant and his family appeared not to have challenged) translated into, and became a chieftaincy (Ezeship) case and decision, purportedly establishing headship/Ezeship of Ibeama Autonomous Community in favour of the Repondent’s family, on the basis of their seniority in the traditional rankings in the Ibeama Community, beats every sense of law and logic, in my opinion. Only a twisted and mischievous imagination could accommodate such curious findings, that because Appellant contested for Ezeship/Chieftaincy seat in his community, what was a purely land case, for which judgment was delivered, had turned into Ezeship contest, to attract contempt of Court. I find this highly reprehensible and absurd.
A Judge must act and pronounce on the case and issues properly brought before it, based on the facts and evidence adduced, and is not permitted to wander from case and issues raised, to scout for facts and evidence to make a case for or support the wish and/or fantasy of any party. See the case of Suberu Vs The State (2010) LPELR – 3120 SC (2010) 8 NWLR (Pt.1197) 586; Ajuwon Vs Akanni (1993) 9 NWLR (Pt.505) 422; Olorunfemi & Ors Vs Asho & Ors (1999) 1 NWLR (Pt.585) 1; Obi Vs A.G. Imo State (2014) LPELR ? 24280 CA; Nwafor Vs NCS & Ors (2018) LPELR 45034 CA.
There was no order of Court made on 30/7/87 to locate the alleged disobedience by Appellant and the 5 others. The Respondents were simply mischievous, in my opinion, and it is very sad the trial Court played along with them to afflict the Appellant.
The Form 48, filed by the Respondents had disclosed what they claimed to be the disobedience by Appellant and others of the judgment/orders of the Judge delivered on 30/7/87, namely, that Appellant (and other named persons) ‘disobeyed the Order and findings of Court made on the 30th day of July 1987 (as contained in the order attached in Form 48 earlier served on you).’
But the affidavit of the Respondents, meant to establish how the disobedience occurred, rather alleged that they (contemnors), in September 2006
went to Obi-Eziokwujuju shrine and wrote with their headed letter an undated document which was said to be their judgment and started circulating same to all members of Ekwe both home and abroad? (A copy of the letter was said to be attached Exhibit ‘JU1’);
That on our seeing the above document, we consulted our Solicitor, Chief F.A. Ilobi, who caused Form 48 to be served on them.? (See paragraphs 5 and 6 of the Affidavit, on page 7 of the Records of Appeal).
I have not seen anywhere in the Records of Appeal, the said document which Respondents claimed to have attached as Exhibit ‘JU1′ to their said affidavit. But Appellant had filed a preliminary objection to the hearing of the contempt proceedings, wherein they said that the contempt proceedings, had to do with dispute over chieftaincy between the parties; that Suits Nos. HOR/12/74 and HOR/124/74 DID NOT DECLARE ANY RIGHT TO THE APPLICANTS OVER THE CHIEFTAINCY, LEADERSHIP OR EZESHIP OF IBEAMA COMMUNITY CAPABLE OF ENFORCEMENT. See page 17 of the Records.
In their Counter-Affidavit, Appellant and the other alleged contemnors had said:
(7) That the 1st and 2nd Respondents, who are from Ibeama a village younger to my village, referred the issue of headship/chieftaincy of Ibeama Village to my Obi
(8) That myself and Ndi Nze Ekwe looked into the matter in view of the Chieftaincy dispute in the said Village
(9) That Chief Godwin Ibegbulem appeared before our panel
(10) That I was made to understand that in Suits Nos. HOR/12/74 and HOR/124/74, parties disputed lands and the Defendants won. Page 15 of the Records.
Reacting to the above averments, the Respondents filed a Further Affidavit, wherein they said (among other things) that:
since the judgment, the contemnors have treated the judgment with levity and have raised so much trouble that the attention of the entire Ibeama was drawn to their conduct hence the entire Ibeama set up a committee to examine the Suits’ in order to curb the unrepentant conduct, of the contemnors who were bent on challenging the traditional seniority status of my family in Ibeama and our entitlement to the Eze position in the newly proposed autonomous community of Ibeama. (Underlining mine) See page 21 of the Records of Appeal.
The above had sufficiently established that what was in contention in, and the real motive for the contempt proceedings, was struggle over chieftaincy – the Ezeship of Ibeama Autonomous Community, not disobedience of Appellant to Court Order/Judgment, over the land case, which was not even appealed against by the losers (Appellant and his family).
The ground for the contempt proceedings, therefore, had nothing to do with the case, judgment/order of Court in the consolidated Suits HOR/12/74 and HOR/124/74.
Courts have always been admonished to be circumspect, while handling contempt proceedings. See Omoijahe Vs Umoru & Ors (1999) LPELR 2645 (SC), and Azubuike Esq Vs The State (2017) LPELR 42485 CA, where this Court said:
‘As hinted in the above Supreme Court decision (Shugaba Vs UBN Plc (supra), contempt of Court was not meant to be wielded by the Court as an instrument of intimidation, or a club of offence, to harass and subjugate and hew down litigants, lawyers and persons within the precincts of the Court, or outside. Contempt of Court is not meant to be used as a weapon or means of showing strength and power by the judge.’ See also Nwadike Vs The State (2015) LPELR 24550 (CA); Ethel C. Chukwu & Ors Vs Lolo Stella C. 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.402) 620; Nwadike Vs State (supra); Onowu Vs Ogboko & Ors (2016) 1 CAR 167.
I therefore, see merit in this Appeal and resolve the issues for the Appellant. I allow the appeal and set aside the decision of the Lower Court, made on 26/6/2007, convicting Appellant and others for contempt of Court in the consolidated Suits Nos. HOR/12/74 and HOR/124/74.
The Respondents shall pay cost of Fifty Thousand Naira (N50,000.00) to Appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother ITA G. MBABA, JCA. I agree entirely with his opinion and reasoning. I also allow the appeal. The decision of the Court below is hereby set aside.
Appearances:
Ken E. Mozia Esq. SAN, with him, J.I. Odibeli, Esq. and NSC Adipuo, Esq.For Appellant(s)
Ben Ugwuoeruchukwu, Esq. him, H. Opara for respondents (first set).
Oge Ezeonye, Esq. for respondents (2nd set)
For Respondent(s)
Appearances
Ken E. Mozia Esq. SAN, with him, J.I. Odibeli, Esq. and NSC Adipuo, Esq.For Appellant
AND
Ben Ugwuoeruchukwu, Esq. him, H. Opara for respondents (first set).
Oge Ezeonye, Esq. for respondents (2nd set)For Respondent
