MRS. ROSE MOFUNANYA v. OLISA NWADIOGBU
(2017)LCN/9504(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of February, 2017
CA/E/282/2009
RATIO
APPEAL: CONSIDERATION OF PRELIMINARY OBJECTION
The consideration of this preliminary objection is necessary because an appellate Court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not, it should not be ignored. This is because it is a cardinal principle of administration of justice to let a party know the fate of his application whether properly brought or improperly brought. See Nwanta v Esumei (1993) 8 NWLR (Pt 563) 650, Tambio Leather Works Ltd v Abbey (1998) 12 NWLR (Pt 579) 548. PER PAUL OBI ELECHI, J.C.A.
APPEAL: COMPETENCE OF GROUND OF APPEAL
For a ground of appeal to be competent, it must comform with the definition of same as stated in Aregbesola v Oyinlola (2001) 9 NWLR (Pt 1253) 627 which states
“A ground of appeal is a statement by a party aggrieved with the decision of a Court, complaining that the Court from which the appeal is brought made a mistake in the finding of facts or application of the law to certain set of facts. A ground of appeal is the complaint of the appellant against the judgment of the Court. Such a complaint must be based on the live issue or issue in controversy in the suit once it is succinctly couched and the parties understood and appreciate the meaning of the contents thereof, such a ground of appeal will not be incompetent merely because it is technically defective.
There is therefore no doubt that a ground of appeal must arise from or relate to the decision of the Court. It must also complain against the ratio decidendi and not the obitum dictum of the case. PER PAUL OBI ELECHI, J.C.A.
INTERPRETATION OF ORDER 9 RULE 13
ISSUE NO 2 which is on whether the learned trial judge was right when she held that the complaint of the Appellant were not such as should vitiate the forms 48 and 49 served on her. I think that it was a wrong interpretation of the provisions of Order 9 Rule 13 of the Judgment (Enforcement) Rules as not being mandatory but permissive. As earlier on stated, Order 9 Rule 13 of the Judgment (Enforcement) Rules provides that the Registrar shall issue a notice in form 49 the relevant meaning of the word issue in Oxford Advanced Learners Dictionary is to start a legal process against somebody especially by means of an official document.” In other words, by the issuance of form 49, the Registrar is to set out a legal process of contempt proceedings against the Appellant the common interpretation accorded the word shall when used in an enactment is that it commends obedience, it is mandatory not directory in which case failure to comply is fatal. See Amata v Omofuna (1997) 2 NWLR (Pt 485) 93. It therefore follows that if a Statute provides that a thing shall be done’, the natural and proper meaning is that a peremptory mandate is enjoined. See Achineku v Ishagba (1988) 1 SCNJ 427, (1988) 4 NWLR (Pt 89) 411, Oyeyipo v Chief Oyinloye (1987)1 NWLR (Pt 50) 356 PER PAUL OBI ELECHI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
MRS. ROSE MOFUNANYA
(Substituted for Chief Alfred C. Mofunanya by order of Court) Appellant(s)
AND
OLISA NWADIOGBU
(By his Attorney, Christian Ozoemena Izuorah (Mrs) Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Anambra State Holden at Onitsha, in the Onitsha Judicial Division and presided over by His Lordship, Honourable Justice C.E. Iyizoba, wherein she dismissed the Appellant?s application for striking out of forms 48 and form 49 filed by the Plaintiff/respondent for being incompetent as can be found at pages 51 and 52 of the record of appeal. The Appellant had prayed for striking out of the forms 48 and 49 filed by the plaintiff/respondent because the form 48 as issued, did not comply with the mandatory provisions of Order 9 Rule 13 of the Judgments (Enforcement) Rules and the form 49 was issued based on the incompetent form 48. It was against the ruling of the lower Court that the defendant/appellant has appealed to the Court.
STATEMENT OF FACTS.
The Respondent took out the action that has led to this appeal at the High Court of Anambra State Holden at Onitsha, in the Onitsha Judicial Division, against the original Appellant who died and was substituted by the present Appellant, praying for perpetual
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injunction and N2,000,000.00 (Two Million Naira) damages for trespass. The Court in default of the original Appellant to file his statement of defence on time, delivered an interim judgment against the said original Appellant as urged by the Respondent the injunctive relief he sought and adjourned the claim of damages for the Respondent to prove.
The original Appellant brought an application to set aside the said judgment which was refused and he applied to the Court of Appeal Holden at Enugu for Extension of time within which to appeal against the judgment of His Lordship, late Hon. Justice J.O. Egbuna which was granted and he appealed on the 17th day of April, 2003. He followed it up by filing of the appeal.
The records of appeal were settled on the summons of the Registry of the appeal Division of the High Court of Anambra State, Holden at Onitsha and he fulfilled all conditions required on him for the compilation and transmission of the records of Court of Appeal. This was the position till the original Appellant died in the later part of 2003.
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Meanwhile, before the original defendant died and before his motion on notice for stay of execution
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of the interim judgment of the injunctive order made by the learned trial judge could be heard, the then presiding judge, Honourable Justice Emekwue, retired and the suit was kept in limbo until 2008, when the plaintiff/respondent filed his form 48 and served same on the present defendant/appellant.
On the 2nd day of December, 2008, the plaintiff/respondent caused form 48 to be served on the defendant/appellant. The above was followed by the service of 49 on the same defendant/appellant.
Upon receipt of the forms 48 and 49, the defendant/appellant on the 4th day of February, 2009, filed a motion on notice wherein she challenged the competence of both the form 48 and form 49. She prayed the Court to dismiss and/or strike out the forms 48 and 49 issued, for being incompetent on the grounds that the issuances of those forms did not comply with the mandatory provisions of Order 9 Rules 13 of the Judgment (Enforcement) Rules.
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The motion on notice filed by the defendant/appellant was heard and on the 20th day of May, 2009, the Court delivered is ruling and dismissed the motion. It was against the dismissal of the motion on notice, that the
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defendant/appellant has brought this appeal.
ISSUE FOR DETERMINATION.
ISSUE ONE ARISING FROM GROUND ONE
Whether the learned trial judge was right when she dismissed as being misconceived the application of the Appellant for striking out and or dismissal of the forms 48 and 49 incompetent?
ISSUE TWO ARISING FROM GROUND TWO
Whether the learned trial judge was right when she held that the complaint of the Appellant were not such as should vitiate the forms 48 and 49 served on her.
ISSUE THREE ARISING FROM GROUND THREE.
Whether the learned trial judge was right when she held that the Appellant has not shown that she was prejudiced and misled in any way, by the alleged flaws in the forms 48 and 49.
ARGUMENT
ISSUE ONE ARISING FROM GROUND ONE
It is learned counsel submission that the learned trial judge was wrong and in error when she dismissed as being misconceived, the application of the Appellant for striking out and/or dismissal of the forms 48 and 49 filed by the plaintiff/respondent and served on her for being incompetent. The learned trial judge at page 52 line 22 of the record of appeal held thus:-
The
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Appellant had in his motion on notice dated 4th February 2009 and filed same date prayed the Court for the following reliefs
(a) An order striking out/dismissing the forms 48 and 49 filed by the Respondent and served on the applicant for being incompetent.
(b) For such order or other orders as the Court may deem fit to make in the circumstances.
TAKE NOTICE that the grounds upon which this application is brought are as follows.
(1) That the procedure for initiating contempt proceedings was not strictly complied with, as prescribed by the law.
(2) The form 48 issued did not comply with Order 9 Rule 13 of the Judgments (Enforcement) Rules
(3) That the form 48 was not endorsed on the drawn up judgment order as required by law.
(4) That the form 49 was issued without any valid form 48.
(5) No application was made to the Registrar for the issuance of form 48.
(6) That since the liberty of the Applicant is at stake, the law requires that every requirement of the law must be complied with strictly. On the basis of the application the learned trial judge found it to be misconceived and pursuant to that finding, dismissed
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the application. The learned Appellant’s Counsel submitted that the learned trial was in great error when she found that the Appellant?s application was misconceived and pursuant therefrom dismissed same. According to learned counsel, the learned trial judge?s error stemmed from her treating the failure of the Respondent to comply with the mandatory provisions of Order 9 Rules 13 of the Judgments (Enforcement) Rules as a mere technicality that did not vitiate or affect the competence of forms 48 and 49 filed by the Respondent.
By the provisions of Order 9 Rules 13 of the Judgment (Enforcement) Rules, learned counsel submitted that it must be narrowly and strictly interpreted and construed because it affects the liberty and freedom of a citizen. See Adeniyi-Adele v Ogbe (1998) 9 NWLR (Pt 567) 650, Ezeji v Ike (1997) 2 NWLR (Pt 486) 206, Dibia v Igwe (1998) 9 NWLR (Pt 564) 78 at 86, Abbas vs Solomon (2001) 15 NWLR (Pt 735) 144.
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Therefore, learned Appellant?s counsel stated that from all the above, one thing stands clear and that is that they are ad idem that the provisions of Order 9 Rule 13 of the Judgment (Enforcement) Rules which
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deals with committal of a citizen for contempt, must be narrowly and strictly interpreted and any slight non- compliance will vitiate the entire proceeding. The learned trial judge?s error in interpreting Order 9 Rule 13 of the Rules led the Court to come to a conclusion that the Respondents non- compliance was a mere-technicality that never vitiated the forms 48 and 49 issued and served on the Appellant.
Order 9 Rule 13 of the Judgment (Enforcement) Rules provides that form 48 shall be endorsed on the Order of Court, the terms of which are being disobeyed, that is for the Registrar to type on the back of the drawn up judgment order, the form 48 which is the notice of consequence of the disobedience of the order of Court which was not done in this instant case. What was done by the Respondent in the instant case was that form 48 was typed on a clear plain sheet of paper and stapled to the drawn up judgment order. It is learned Appellant?s submission that there is a difference between endorsing a document and attaching another document to another. To endorse a document and the endorser is only to turn to the back of the document and write
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something there but attachment requires two documents to be bound adhered together. It is on that note that the learned Appellant?s counsel submitted that the above used by the Respondent in initiating the committal proceeding against the Appellant was a break or departure from the strict application of the Order 9 Rules 13 of the Judgment (Enforcement) Rules and consequently vitiated the proceedings. See Ezeji v Ike (1997) 2 NWLR (Pt 486) 206, Adeniji-Adele v Ogbe (Supra). Learned counsel then noted that form 49 served on the Appellant was served based on the defective and incompetent form 48 and that being so, same is as well incompetent. Even the authority of Okwueze v Ejiofor (2000) 15 NWLR (Pt 690) 389 relied up by the learned trial judge to dismiss the Appellant?s application does not apply. The issue considered there was not non-compliance but what was regarded as a misnomer.
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In conclusion therefore, learned Appellant?s counsel then submitted that the learned trial judge acted in error when she dismissed as being misconceived the Appellant?s application for striking out and or dismissal of the forms 48 and 49 as being
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incompetent. He then urged the Court to resolve this issue in favour of the Respondent.
ISSUE NO 2
?Whether the learned trial judge was right when she held that the complaint of the Appellant were not such should vitiate the forms 48 and 49 served on her.?
Learned counsel submitted that the learned trial judge was wrong and in error when she held that she was of the view that the complaints were not such as should vitiate forms 48 and 49 served on her. The learned trial judge tried by implication to hold that the provisions of Order 9 Rule 13 of the Judgments (Enforcement) Rules are not mandatory but are permissive or directory. By so doing, the learned trial judge lost sight of the fact that the proceedings was one in which would affect and or curtail the liberty of the Appellant and so the requirements of the law must be strictly complied with. See Dibia v Igwe (Supra), Adeniji ?Adele v Ogbe (Supra)
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It is therefore learned Counsel?s submission that if the learned trial judge had adverted her mind that the liberty of the Appellant was at stake with the contempt proceeding she but would not have treated
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non-compliance as a technicality.
Based on the above, he urged the Court to hold that the trial judge erred in error when he treated non-compliance as a technicality and that the Court should resolve this issue in favour of the Appellant.
ISSUE NO 3
Whether the learned trial judge was right when she held that the Appellant has not shown that she was prejudiced and misled in any way, by the alleged flaws in the forms 48 and 49. Learned counsel submitted that the learned trial judge was wrong when she dismissed as being misconceived the application of the Appellant for striking out and/or for dismissed of the forms 48 and 49 filed by the Respondent and served on her for being incompetent.
By the provisions of Order 9 Rule 13, the procedure there on must be strictly complied with and non-compliance with any of the requirement or procedures laid-down in Order 9 Rule 13 is fatal. See Abbas v Solomon (2001) 15 NWLR (Pt 735) 150. Since a man?s liberty is at stake, every requirement of law must be strictly complied with See Dibia v Igwe (Supra). Forms 48 and 49 served on the Appellant did not comply with the mandatory requirements of Order 9
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Rules 13 of the Judgments (Enforcement) Rules which required that form 48 must be endorsed on the order. Even though the Appellant was served with a defective forms 48 and 49 and that she was not prejudiced or misled by the fundamental defect in the issuance of the forms on the appellant did not make the invalid forms 48 and 49 to be valid, this is so because the state of mind of the applicant is not material in considering strict compliance and application of the mandatory provision of Order 9 Rules 13 of the Judgment (Enforcement) Rules. The learned trial judge is therefore wrong and erred in law to have observed that the Appellant has not shown that she was prejudiced and misled in any way by the alleged flaws in forms 48 and 49. In view of this he urged the Court to resolve this issue in favour of the Appellant and to allow the appeal and set aside the judgment of the lower Court.
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In his own Respondent’s brief, the Respondent raised a preliminary objection to the effect that all the three grounds of appeal are incompetent and liable to be struck-out, in consequence of which the appeal will be dismissed. The grounds he submitted have all failed to
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satisfy Order 6 Rules 2(2) and 3 of the Court of Appeal Rules 2011.
According to the notice of objection, the grounds are:
1(a) That the first ground of appeal is vague and in general terms by simply alleging that the learned trial judge erred in law without showing how or in what respect the error occurred.
(b) The particulars of the ground are not even related to it.
2(a) Ground two is also vague and in general terms and has failed to locate the error in law complained about.
(b) In consequence therefore, the supposed particulars are not only unrelated to but have no bearing with the ground.
3(a) Ground three is also vague and couched in general terms and lacking in the manner or direction of the misdirection.
(b) The particulars cannot therefore be particularly married or related to that ground.
4. None of the three grounds of appeal has disclosed a reasonable ground of appeal and given sufficient notice and information of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise in the appeal. Learned Respondent referred the Court to a similar provision in the Supreme
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Court Rules and in particular the case of CBN V Okojie (2002) FWLR (Pt 103)349 at 357
In arguing all the grounds of appeal together, learned Respondent submitted that all the grounds are vague in general terms and here failed to disclose reasonable grounds of appeal. They have also failed to provide any explicit standard of being understood. The manner of error or misdirection is not stated. Even the particulars as stated have no proper basis or foundation from the grounds. Issue Number 1 in particular to the first ground of appeal for instance though vague sounds more like a ground of appeal while the rest particulars 2 to 8 expertiate and expound it.
?Ground 2 has not thrown up any complaint, the purported particulars labour in vain in seeking to prop that ground up. In the absence of proper ground of appeal indicating or defining the misdirection, those two particulars listed in support of ground three are at large and ambivalent to the ground. He then contended that in all, the precise issue likely to arise in each of the three grounds is not obvious. He then urged the Court to hold that all the three grounds of appeal are incompetent, strike them out
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and dismiss the appeal.
On the main appeal, learned Respondent counsel submitted that the learned trial judge was right in holding that the application to strike out/dismiss forms 48 and 49 was misconceived in view of his findings that the applicant did not show that she was prejudiced or misled in any way by the alleged flaws in the forms 48 and 49, nor even on appeal. The learned trial judge came to the conclusion that the alleged ?flaws? were not established. The lower Court, learned counsel contended was satisfied with the Respondent?s counter-affidavit of 10/2/2009 particularly paragraphs 2,3,4,5 and 6 and hereby rejected the application to strike or dismiss forms 48 and 49.
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On the complaint that the order was not endorsed on forms 48 and 49, counsel submitted that the Appellant was fully aware of the order especially when he voluntarily admitted in paragraph 2 of her counter-affidavit on page 24 of the record that she read and understood the contents of forms 48 and 49 which were served on her. Also by her paragraph 2 of the appellant?s affidavit on page 24 of the record, the Appellant exhibited form 48 (comprising of
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the form and the order as Exhibit FA1. The appellant according to the Respondent’s counsel is pandering to technicalities to achieve her purpose which is no more applicable. See Okwueze v Ejiofor (2000) 15 NWLR (Pt 690) 389 at 409. See also Consortium v N.E.P.A. (1992) 7 SCNJ (Pt 1) 1 at 8.
Learned counsel further contended that even if there are slips in the forms though not conceded, that under Order 9 Rule 13(1) & (2) of Cap 407 LFN., the authority to issue forms 48 and 49 vests on the Registrar who signs them. See Mora v Adeyeye (1990) 4 NWLR (Pt 142) 76 AT 87. As a result therefore, it is only reasonable and logical to hold the Registrar accountable for any slip or error on those forms. See Okwueze v Ejiofor (Supra).
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On the allegation that the applications were not made for the issuance of the form 48 and 49, learned counsel submitted to the contrary with regard to form 48, the Respondent relied on paragraphs 4(a) of the counter-affidavit in proving that he made a written application to the Assistant Chief Registrar. As for form 49, the Respondent made an oral application to the Registrar and placed before him form 49 along with the form fees
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for his acceptance and adoption by signing same which he did and eventually issued it. Rule 13 of Cap 407 LFN merely required an application to be made without stipulating whether written or oral. Learned counsel contended that mere presentation of form 49 and necessary fees to the Registrar impliedly an application. In the circumstance, he submitted that it can not be said that applications were not made to the registrar, more so as the era of technicalities is gone.
He then urged the Court to dismiss the appeal as the only Appellant?s ground is based on technicalities which are no more in vogue. The appeal he contended does not have any merit and should be dismissed.
On a reply brief filed on the 3/3/2015, learned Appellant counsel referred to the meaning of a ground of appeal cited the case of Aregbesola v Oyinlola (2001) 9 NWLR (Pt 1253) 627. The Nigeria adjectival law requires that the grounds of appeal must be drafted with precision, concision, exactness and under distinct head. Order 6 Rule 2 (3) of the Court of Appeal Rules 2011.
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Looking at the ground of appeal shows that the Appellant is complaining against the reasoning of the
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trial Court for dismissing the Appellant’s application. The three grounds of appeal are not only that they are concisely and precisely stated under three distinct heads but went further to particularize the errors in the ruling in specific points, the decision appealed against that support the grounds of appeal.
Learned Appellant counsel then submitted that the dismissal of the Appellant?s application which challenged the competence of forms 48 and form 49 for contempt proceedings against the Appellant based on Court reasoning, is a clear case of misconception and misapplication of the law. In determing the validity or competence of a ground of appeal, it is necessary to read the grounds in its entirety i.e the main body of the grounds and the particulars thereunder. The aim is to show the specific points in the decision. See Aribo v CBN (2011) NWLR (Pt 1260) 133. Even the Respondent did not show how the grounds of appeal being challenged appear to be vague and incomprehensible to him and how it did not relate to the decision appealed against. Also the Respondent is not saying that he does not know what exactly the Appellant’s complaint was against
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the ruling of the Court. As well, the Respondent is not saying that the particulars of error stated in the grounds of appeal do not relate to the decision of the Court below and how nor is he saying that, the ground of appeal and their particulars do not attack the ruling of the lower Court.
In conclusion, it is learned Appellant?s counsel?s submission that the objection is baseless and lacks merit as the grounds of appeal complied with the provisions of the law. All the particulars of error show the specific points in the decision appealed against which support the grounds of appeal. As a result, he urged the Court to dismiss the objection with substantial costs.
On his reply on points of law to the Respondent’s brief of argument, the Appellant counsel submitted that committal proceeding is for all intents and purposes, a quasi-criminal matter and must be proved beyond reasonable doubt. A committal proceeding for contempt affects the freedom and liberty of the contemnor and the law and procedure and same must be strictly applied as any slightest wrongful step taken leads to vitiation of the entire proceedings. See Adeniyi-Adele v Ogbe
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(Supra). In this matter, no formal application was made for the issuance of form 49 and that rendered it a nullity. It is learned Appellant final submission that non-compliance regarding the issuance of forms 48 and 49 goes to the root and not a mere technicality. See Akpan v Akpan (1996) 7 NWLR (Pt 462) 620. He finally urged the Court to allow the appeal and set aside the decision of the lower Court.
RESOLUTION OF ISSUES
The first issue to resolve is the preliminary objection of the Respondent urging the Court that the three grounds of appeal be struck-out and the appeal be dismissed in its entirety without hearing it. The consideration of this preliminary objection is necessary because an appellate Court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not, it should not be ignored. This is because it is a cardinal principle of administration of justice to let a party know the fate of his application whether properly brought or
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improperly brought. See Nwanta v Esumei (1993) 8 NWLR (Pt 563) 650, Tambio Leather Works Ltd v Abbey (1998) 12 NWLR (Pt 579) 548.
For a ground of appeal to be competent, it must comform with the definition of same as stated in Aregbesola v Oyinlola (2001) 9 NWLR (Pt 1253) 627 which states
?A ground of appeal is a statement by a party aggrieved with the decision of a Court, complaining that the Court from which the appeal is brought made a mistake in the finding of facts or application of the law to certain set of facts. A ground of appeal is the complaint of the appellant against the judgment of the Court. Such a complaint must be based on the live issue or issue in controversy in the suit once it is succinctly couched and the parties understood and appreciate the meaning of the contents thereof, such a ground of appeal will not be incompetent merely because it is technically defective.?
There is therefore no doubt that a ground of appeal must arise from or relate to the decision of the Court. It must also complain against the ratio decidendi and not the obitum dictum of the case. The Respondent contention in the preliminary objection
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is that the three grounds of Appeal are vague, incompetent and liable to be struck out having failed to satisfy Order 6 Rule 2(2) and (3) of the Court of Appeal Rules the said Rules states thus:
2 ?(2) where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated?
2 ?(3) Any ground which is vague or general in terms or which disclosed no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence and ground of appeal or any part hereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.?
I have considered the grounds and the argument proffered by the Respondent and the Appellant in the preliminary objection and I don?t seem to agree with the Respondent on record that that the three grounds of appeal in this appeal are incompetent, vague and liable to be struck-out especially with regard to the definition of ground of appeal as hereinbefore stated in Aregbesola v Oyinlola (Supra). The preliminary
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objection is baseless and lacks merit as the grounds of appeal complied fully with the provisions of the law and left no room for vagueness. All the particulars of error show the specific points in the decision appealed against which support the grounds of appeal. In consequence, the preliminary objection lacks merit and it hereby fails. Accordingly, it is hereby dismissed.
In respect of the main appeal, issue No 1, learned counsel submitted that the learned trial judge was right in holding that the application to strike out/dismiss forms 48 and 49 was misconceived. In view of his finding that the Appellant did not show that she was prejudiced or misled in any way by the alleged flaws in forms 48 and 49 this is so according to him because the alleged flaws were not established.
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On the complain that the Order was not endorsed on form 48, learned counsel submitted that the purpose has been achieved. The Appellant he said was fully aware of the order especially when she voluntarily admitted in paragraph 2 of her further affidavit that she read and understood the contents of forms 48 and 49 which were served on her. Also she exhibited the form and the
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order as Exhibit ?FA1? on the whole, the Respondent counsel likened the Appellant as one pandering to technicalities for salvation. Learned counsel stated that even if there are slips on forms 48 and 49, the Courts have since shifted away from the narrow technical approach to justice and now pursue the course of substantial justice. See Consortium v N.E.P.A. (1992) 7 SCNJ (Pt 1) 1 at 8, Okwueze v Ejiofor (2000) 15 NWLR (Pt 690) 389 at 409.
In the instant case, the slips if ever is attributable to the Registrar on whom the law vests the power to sign forms 48 and 49 pursuant to Order 9 Rule 13 (1) (2) of Cap 407 LFN. See also Mora v Adeyeye (1990) 4 NWLR (Pt 142) 76 at 87 so it is only reasonable to hold the Registrar accountable for any slip if ever. See Okwueze v Ejiofor (Supra)
On the allegation that applications were not made for the issuance of forms 48 and 49, Respondent?s counsel submitted that they were duly made. See paragraph 4(a) of the counter-affidavit in respect of form 48 and for form 49, it was an oral application made to the Registrar with the accompanying fees.
In the circumstance of this case learned
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Respondent counsel submitted that it can not be said that the applications were not made to the Registrar; more so as the era of Technicalities is gone.
In view of all the above, learned Respondent counsel urged the Court to dismiss the appeal as it has no merit.
The procedure for commencing committal proceedings is embodied in Order 9 Rule 13 of the Judgment (Enforcement) Rules as follows:
?When an order enforceable by committal under Section 72 of the Act has been made, the Registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or in the nature of an injunction, at the time when the order is drawn up and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in form 48 and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.?
It is therefore necessary that a person setting up a contempt proceeding must ensure that every step that is necessary is taken and the entire requirements are complied with strictly. See Opobiyi v Muniru
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(2008) ALL FWLR (Pt 408) 380, NYA V Edem (2005) ALL FWLR (Pt 242) 576.
It is trite that contempt of Court is an office sui generis. An application for committal for any disobedience of an order of Court is a very serious matter as it involves in most cases an exceptional interference with the liberty of a subject and therefore when any antecedent process has to be put in motion every prescribed step and rule however technical should be carefully taken, observed and insisted upon. Any irregularity in the procedure for committed is a fundamental vice which vitiates the entire application. See Atser v Gachi (1997) 6 NWLR (Pt 510) 609 at 624, Gordon v Gordon (1946) 1 ALL ER 247 at 250, Boyo v State (1970) 1 ALL NLR 318 at 319-320, Okwuosa v Okwuosa (1973) 3 ECSLR (Pt 1) 75
?Since a proceeding to commit a person for contempt is criminal or quasi-criminal proceeding, every procedural step-the legal modus proseqiandi must, ?ex necessitate? to be strictly complied with. This is the exotic picture painted by Nsofor J.C.A. In Bonnie v Gold (1996) 8 NWLR (Pt 465) 230 at 238 and that description is what is, in effect the law.? per Odili
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J.C.A. (as he then was and now JSC)
Order 9 Rule 13(2) of the Judgment (Enforcement) Rules reproduced above provides that the Registrar ?SHALL? issue a notice in form 49. The common interpretation accorded the word SHALL when used in an enactment is that it commands obedience, it is mandatory not directory in which case failure to comply is fatal. In Amata v Omofuma (1997) 2 NWLR (Pt 485) 93 at 110, Nsofor JCA stated on the implication of the use of the word SHALL. Now the word ?SHALL? in its ordinary sense is a word of command and one which has always or which must be given a compulsory meaning, it denotes an obligation, it has a peremptory meaning. It is generally imperative, it is mandatory. It has the invaluable significance of excluding the idea of discretion and the significance of operating to impose a duty which may be enforced. Thus if a Statute provides that a thing ?SHALL? be done, the natural and proper meaning is that a premptory mandate is enjoined. See Achineku v Ishagba (1988) 1 SCNJ 427, (1988) 4 NWLR (Pt 89) 411, Onyeyipo v Chief Oyinloye (1987) 1 NWLR (Pt 50) 356.
The above rule must be narrowly
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and strictly interpreted and construed because it affects the liberty and freedom of a citizen. See Adeniyi ? Adele v Ogbe (Supra)
In the instant appeal, Order 9 Rule 13 of the Judgment (Enforcement) Rules as herein before stated that on application of the judgment creditor issue a copy of the order endorsed with the notice in form 48 and the copy so endorsed shall be served on the judgment debtor in the like manner as a judgment summons the above provision also required the Registrar to type on the back of the drawn-up judgment order, the form 48 which is a notice of consequence of the disobedience of the order of Court. However, it was not so demonstrated in this case. Rather, what was done in the instant appeal was that form 48 was typed on a clean plain sheet of paper and stapled to the drawn up judgment order, the provisions of which the Appellant was alleged to have disobeyed.
Order 9 Rule 13 as a rule of Court must be obeyed and complied with. See Ezegbu v FATB Ltd (1992) 1 NWLR (Pt 216) 197, Iroegbu v Okwordu (1990) 6 NWLR (Pt.159) 643, CCB (Nig) PLC V A.G. Anambra State (1992) 8 NWLR (Pt 261) 528.
The defect in procedure followed in
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commencing this contempt proceeding cannot be likened to a man drowning in the dark waters and pandering for salvation as contended by the Respondent. The authority of Okwueze v Ejiofor (Supra) does not apply in this case because in that case, what was considered by the Court was not non-compliance as in this case but what to be regarded as a misnomer. Therefore, the said authority does not enhance the Respondent?s argument in any way. The slips observed in forms 48 and 49 in the issuance of the forms is so fundamental in procedure that the learned trial judge at the lower erred in law by holden that the trial judge found the Appellant’s application was misconceived and therefore dismissed from what has been considered above. It is clear that forms 48 and 49 issued in commencement of the contempt proceeding were not issued as required by the provisions of the Judgment (Enforcement) Rules and they must perforce be set aside as it is true in law that no one can put something upon nothing and expect it to stand. On the basis of the above, I therefore hold that the learned trial judge was not right when she dismissed same as being misconceived. I therefore
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resolve issue No 1 in favour of the Appellant. See Okoi Ofem & ors v Presbyterian Church of Nigeria (2011) LPELR 4436 (CA).
ISSUE NO 2 which is on whether the learned trial judge was right when she held that the complaint of the Appellant were not such as should vitiate the forms 48 and 49 served on her. I think that it was a wrong interpretation of the provisions of Order 9 Rule 13 of the Judgment (Enforcement) Rules as not being mandatory but permissive. As earlier on stated, Order 9 Rule 13 of the Judgment (Enforcement) Rules provides that the Registrar shall issue a notice in form 49 the relevant meaning of the word ?issue? in Oxford Advanced Learners Dictionary is to ?start a legal process against somebody especially by means of an official document. In other words, by the issuance of form 49, the Registrar is to set out a legal process of contempt proceedings against the Appellant the common interpretation accorded the word ?shall? when used in an enactment is that it commends obedience, it is mandatory not directory in which case failure to comply is fatal. See Amata v Omofuna (1997) 2 NWLR (Pt 485) 93. It therefore
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follows that if a Statute provides that a thing ?shall be done’, the natural and proper meaning is that a peremptory mandate is enjoined. See Achineku v Ishagba (1988) 1 SCNJ 427, (1988) 4 NWLR (Pt 89) 411, Oyeyipo v Chief Oyinloye (1987)1 NWLR (Pt 50) 356
The complaint under this issue was that the procedure for initiating contempt proceedings was not strictly followed and complied with as prescribed by the law especially on forms 48 and 49. The learned counsel for the Respondent had argued that the Respondent ought not be visited with the sin of the Registrar which I accept as good law supported by several authorities including Duke v Akpabuyo Local Government Area (2005) 12 SCNJ 280, U.T.C. V Pamotei (1989) 2 NWLR (Pt 103) 244.
?On the other hand, it must be appreciated that a committal proceeding is a quasi-criminal proceeding that may have its effect on the liberty of the citizen and which injustice will be occasioned to the Appellant by glossing over the fundamental defects in the originating process that may question the competence of the Court or the proceedings before it. The form 48 and 49 issued in commencement of the contempt
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proceedings were not issued as required by the provisions of the Judgment (Enforcement) Rules and they must perforce be set aside as it is true that no one can put something upon nothing and expect it to stand. Therefore, the learned trial judge erred in glossing over the non-compliance with the mandatory provisions of Order 9 Rules as a mere technicality that did not vitiate or affect the competence of forms 48 and 49 filed by the Respondent.
I therefore resolve issue No 2 in favour of the Respondent.
ISSUE NO 3
?Whether the learned trial judge was right when she held that the Appellant has not shown that she was prejudiced and misled in any way, by the alleged flaws in the forms 48 and 49.”
?
The Respondent counsel had in his submission stated that the lower Court was satisfied with the Respondent?s counter-affidavit particularly paragraph 2, 3, 4, 5 and 6 before dismissing same when she held thus
?The applicant has not shown that she was prejudiced or misled in any way by the alleged flaws in the forms 48 and 49? Even though the Appellant was fully aware of the order made having read and understood same
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as served on her, as contended by the Respondent, that does not relieve the Respondent the obligation to issue valid forms 48 and 49.
All said and done, the law is that the procedure in Order 9 Rule 13 must be strictly complied with and non compliance with any of its provisions is fatal. See Abbas v Solomon (2001) 15 NWLR (Pt 735) 150. I therefore agree with the learned Appellant?s submission that the mere fact that the Appellant was served with the defective forms 48 and 49 and that she was not prejudiced or misled by the fundamental defect in their issuance did not make the invalid forms valid. After all as contended by learned counsel, the state of mind of the Appellant is not material in considering the strict compliance and application of the mandatory provision of Order 9 Rule 13 of the Judgment (Enforcement) Rule. I hereby resolve this issue in favour of the Respondent.
Having resolved all the issues in favour of the Respondent, this appeal is highly unmeritorious and is hereby dismissed. Consequently, the ruling of the lower Court is hereby affirmed. I assess and fix cost at N50,000.00 in favour of the Respondent.
Appeal
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dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I agree.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
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Appearances:
I. F. Ojukwu Esq.For Appellant(s)
Austine A. Ononye Esq.For Respondent(s)
Appearances
I. F. Ojukwu Esq.For Appellant
AND
Austine A. Ononye Esq.For Respondent
