NNAEMEKA CHUKWUOGOR & ANOR. v. CHUKWUOGOR (NIG.) LTD. & ORS. (2007)

NNAEMEKA CHUKWUOGOR & ANOR. v. CHUKWUOGOR (NIG.) LTD. & ORS.

(2007)LCN/2328(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of April, 2007

CA/C/80/2004

RATIO

WHETHER AN APPLICATION FOR A STAY OF EXECUTION SHOULD TAKE PRIORITY OVER APPLICATION FOR COMMITTAL FOR CONTEMPT

My Lords, besides the application of common sense and discretion, which directs the preservation of matters in Court in the cause of doing justice to parties in court of law. The legal authority is Omoijahe v. Umoru (1999) 8 NWLR (Pt. 614) 178. In that case, the Supreme Court ruled that a charge for contempt before the court below does not have priority of hearing in the court over a civil application. My Lords, the situation is different from the hearing of a criminal trial in the court, where criminal suit is given priority of hearing. This is because of the ostensible issue of liberty of a citizen which is always an incident or consequence of a criminal trial, the practice has been adopted in court to attend first to the hearing of a criminal trial before the civil one. In the instant appeal, the application of the appellants is for a stay of execution of the order made which is alleged to be breached. If the committal application is taken first, and the court decides in favour of the applicant for committal of the parties, the parties who seek a stay of execution would have lost a right to present their case; or worse still would go to court from the gates of the prisons to present their plea for a stay of execution when there is no longer any order to stay. In the event, the applicants would have lost a right of hearing in court, which is the constitutional right of every citizen of Nigeria. See section 36 of the Constitution of Nigeria. ‘A trial which does not enable both parties to express their grievances, such proceedings in court cannot be said to be fair’ See George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71; 77; (1963) 1 SCNLR 117. The instant trial in which the criminal prosecution for contempt under section 48 Sheriff and Civil Process Act is so scheduled to be heard to conclusion before the parties have a chance to express their defence is unfair. The pronouncement of the learned Judge in the preference of committal proceedings to civil one is wrong, it is not allowed in law. PER OMAGE, J.C.A.

IMPORTANCE OF THE ISSUE OF JURISDICTION

On the issue of jurisdiction, it is often said that an issue of jurisdiction of court takes priority of hearing where it is raised. The issue of jurisdiction raises the complaint of the competence of the court to exercise its powers in the matter at hand. In the event it is imperative to hear and determine such issue before proceeding; or as in this case, enable an appellate court to determine the threshold issue. See Fayemi v. L.G.S.C., Oyo State (2005) 6 NWLR (Pt. 921) 280. PER OMAGE, J.C.A.

POSITION OF THE LAW ON THE POWER OF THE COURT WITH RESPECT TO WHEN THE ISSUE OF JURISDICTION IS RAISED IN ANY PROCEEDINGS

Once the issue of jurisdiction is raised in any proceedings the power of the court is limited to determining whether or not it has jurisdiction in the matter. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Chiedozie v. Omosowan (1999) 1 NWLR (Pt. 586) 317. PER NGWUTA, J.C.A.

CIRCUMSTANCES UNDER WHICH A CONTEMNOR MUST BE HEARD

Although the general rule is that a contemnor will not or cannot be heard, there are some recognized exceptions to the said rule which are as follows. (a) Where the party is seeking leave to appeal against the order for which he is in contempt. (b) Where the contemnor tends to show that because of the procedural irregularities in making the order, it ought not be sustained. (c) Where the order is being challenged on the ground of lack of jurisdiction. (d) Where the contemnor seeks to be heard in defence of the order. Ezegbu v. F.A.T.B. Ltd. (1992) 7 NWLR (Pt. 251) 89; Mobil Oil (Nig.) Ltd. V. Assan (1995) 8 NWLR (Pt. 412) 129; Alhaji Garba Isyaku & Ors. v. Ibrahim Master & Ors. (2003) 5 NWLR (Pt. 814) 443. PER OWOADE, J.C.A.

WHETHER THE RIGHT OF A CONTEMNOR TO BE HEARD SHOULD TAKE PRECEDENCE OVER THE GENERAL RULE THAT A CONTEMNOR WILL CANNOT BE HEARD

The rule against the hearing of a contemnor seeking the exercise of the discretionary power of the court in his favour is a common law principle which does not and should not erode the constitutionally guaranteed right of the contemnor to be heard. See Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; Isyaku v. Master (supra) PER OWOADE, J.C.A.

JUSTICES:

VICTOR AIMEPOMO O. OMAGE Justice of The Court of Appeal of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

NNAEMEKA CHUKWUOGOR & ANOR. – Appellant(s)

AND

CHUKWUOGOR (NIG.) LTD. & ORS. – Respondent(s)

OMAGE, J.C.A. (Delivering the Leading Judgment): The background of the facts of this appeal is as follows: The 2nd respondent commenced proceedings in the High Court of Cross River State which sat at Ikom, before Honourable Justice M. O. Eneji. The writ of summons which was issued on 2/6/2003, sought the following reliefs:-
(a) A declaration that the estate which the defendant purports to manage is owned by the 1st plaintiff and therefore subject to the Administrator General Law Cap. 3, Laws of Cross River State.
(b) An order for the revocation of the letters of administration granted to the 1st defendant.
(c) An order of perpetual injunction restraining the defendants, their agents, servants or privies from intermeddling with the estate of the 1st plaintiff.
(d) The sum of N 10 million as general damages for intermeddling with the estate of the 1st plaintiff.
Simultaneously with the issue of the writ of summons, the 1st plaintiff sought also an interim order of court in this form –
1. An interim injunction restraining the defendants, their agents, servants or privies from further interfering in any manner howsoever with the assets and properties of the 1st plaintiff situate at No.3 and 5 Ogoja Road, Ikom, 4 Chukwuogwor Lane, Ikom, plots at Old Army Barracks, Ikom and Cocoa Farm Plantation at Okunde, Etomi Road and Agbobua Mgbabor along Effreya Road, pending the determination of a motion on notice.
2. An order of interim injunction restraining the defendants, their agents, servants or privies from collecting rents from tenants or purporting to lease out the aforesaid properties pending the determination of a motion on notice.
The motion was supported by a lengthy affidavit. The ex parte motion was taken by the learned trial Judge, who on page 96 of the record of proceedings showed that the interim order was made in terms of the prayers stated above.
The 1st and 2nd defendants were aggrieved by the interim order of the High Court, they filed an appeal against it on 6/6/03. The six grounds of appeal filed are contained on pages 98 – 103 of the record of proceedings. The prayers sought on appeal by the 1st and 2nd respondents/appellants are to allow the appeal and set aside the order of the lower court made on 3rd June, 2003. In a subsequent brief of the appellant, the appellant averred that this interim order was made on 3rd not 4th June, 2003 as shown on page 96 of the record: see also page 109, and that it was a “prearranged order”.
The 1st and 2nd respondents/appellants also filed a motion in the High Court, and sought as follows: “All order to stay the execution of the order of the High Court made on 3rd June, 2003, and all order to stay further proceedings in the suit No. HM/103/2003 pending the determination of the appeal of the suit.” The motion was supported by an affidavit.
The 3rd and 4th respondents to the order of the 4th June, 2003 being defendants to the suit also filed an appeal to the interim order. The grounds of appeal are contained on pages 117 – 120 of the record of proceedings. They also seek an order of the court of Appeal to set aside the interim order of the High Court made in favour of the applicants.
While the process of appeal by the respondents to the motion was proceeding, the beneficiary to the interim order, the 1st applicant and 2nd plaintiff in suit No. HM/103/2003, filed before the High court, Ikom, Form 48 of the Sheriff and Civil Process Act. It is a notice of consequences of disobedience to the order of court which was sent to the respondents including the Administrator General, Calabar, Cross River State. In the affidavit in support of the application; see pages 159 – 173 of the record of proceedings, the applicant Chukwuma Chukwuogor deposed as to the existence of the interim order issued by the court and that despite the order, the respondents who are now appellants went on to the land in dispute, and collected rents from diverse people in contempt of the order made by the court in suit No. HM/103/2003. Meanwhile, letters of administration to manage the said estate subject of the litigation was granted to the defendants/appellants. The motion on notice in the said suit HM/103/2003 was listed for hearing at the resumed hearing before the Hon. Justice M. O. Eneji on 1/7/03. The said court found merit in the motion on notice and granted the interlocutory order.
In the matter to show cause on 13/8/03, the applications were taken before the learned trial Judge for determination. The matters were the application for committal of the respondents under Form 48, for parties to obey the order of court issued on 4/6/03; the prayer was for an order for a stay of execution of the order of court previously issued. The counsel for the respondents asked the court to hear first the application to stay the order of the court while the applicant submitted that the application for committal of the respondents should be taken first, in the event of such conflict the court adjourned the hearing of the motion for committal to 12/11/03. The respondents who are also applicants for a stay of proceedings were dissatisfied with the ruling of the court. They lodged yet another appeal of two grounds with copious particulars.
The respondents/appellants filed their brief in the latest appeal on 15/10/04. The appellants formulated one issue which read thus-
Whether the learned trial Judge was right in his application of the case of Ojukwu v. Military Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39; (2000) FWLR (Pt. 50) 1779 in coming to the conclusion that a committal proceedings take precedence over motions for a stay of execution and stay of further proceedings pending appeal which appeals are challenging his jurisdiction to entertain the suit and make the orders sought to the enforced by the committal proceedings.”
Put succinctly, what the respondents/appellants seek to be determined on appeal is, should a court hear first the application which seeks committal for breach of his order, when an application by the respondents is pending before him to stay the execution of the order, which complaint also challenge the jurisdiction of the court? Additionally, where there is an appeal pending by the respondents against the same order? The notice of appeal was filed; brief of the appellants was filed and served on the respondents.
The respondents failed, refused and or neglected to file a respondents’ brief. As recorded above, the appellants’ brief was filed on 15/10/04. It is now over 45 days; indeed it is over three years and the respondents have not filed any respondents’ brief up till today. At the hearing of the appeal on 12/2/07, following a “previous application to do so, the appellants’ counsel asked the court to proceed to consider the appellants’ brief only since the respondents have failed to file their brief. Consequently, the court applied herein the provisions of order 6 rule 10; and this appeal is being determined on the appellants’ brief alone.
The issue to be determined is as succinctly put above. The sub issue contained in the appeal is whether the decision of the apex court in Ojukwu v. Military Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 is authority for holding that an application for committal for contempt takes priority over an application for a stay of execution, when the jurisdiction of the court is being assailed over the issue of an order to show cause. Moreso, when an appeal against the interim order is pending before the Court of Appeal. Clearly, the main issue before the Supreme Court in Ojukwu’s case cited above is whether a constitutional issue exists for the Lagos State Government to eject without more Chief Emeka Ojukwu from the premises owned by Ojukwu Transport Company, which was previously in his possession but on lease to G. Cappa. The apex court did not direct in the case that an application for committal for contempt should take precedent over a motion to stay the order the basis from which the committal proceedings arose. My Lords, there is nothing in the order or rulings of the apex court of Ojukwu v. Lagos State that so direct.
My Lords, besides the application of common sense and discretion, which directs the preservation of matters in Court in the cause of doing justice to parties in court of law. The legal authority is Omoijahe v. Umoru (1999) 8 NWLR (Pt. 614) 178. In that case, the Supreme Court ruled that a charge for contempt before the court below does not have priority of hearing in the court over a civil application. My Lords, the situation is different from the hearing of a criminal trial in the court, where criminal suit is given priority of hearing. This is because of the ostensible issue of liberty of a citizen which is always an incident or consequence of a criminal trial, the practice has been adopted in court to attend first to the hearing of a criminal trial before the civil one. In the instant appeal, the application of the appellants is for a stay of execution of the order made which is alleged to be breached. If the committal application is taken first, and the court decides in favour of the applicant for committal of the parties, the parties who seek a stay of execution would have lost a right to present their case; or worse still would go to court from the gates of the prisons to present their plea for a stay of execution when there is no longer any order to stay. In the event, the applicants would have lost a right of hearing in court, which is the constitutional right of every citizen of Nigeria. See section 36 of the Constitution of Nigeria. ‘A trial which does not enable both parties to express their grievances, such proceedings in court cannot be said to be fair’ See George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71; 77; (1963) 1 SCNLR 117. The instant trial in which the criminal prosecution for contempt under section 48 Sheriff and Civil Process Act is so scheduled to be heard to conclusion before the parties have a chance to express their defence is unfair. The pronouncement of the learned Judge in the preference of committal proceedings to civil one is wrong, it is not allowed in law.
On the issue of jurisdiction, it is often said that an issue of jurisdiction of court takes priority of hearing where it is raised. The issue of jurisdiction raises the complaint of the competence of the court to exercise its powers in the matter at hand. In the event it is imperative to hear and determine such issue before proceeding; or as in this case, enable an appellate court to determine the threshold issue. See Fayemi v. L.G.S.C., Oyo State (2005) 6 NWLR (Pt. 921) 280. In the event, this appeal succeeds, it is allowed.
The case is remitted to the Chief Judge, Cross River State for hearing and determination by another Judge.

NGWUTA, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother, Omage, J.C.A.
Though the issue raised in the appeal is simple, its import is of fundamental importance in justice delivery. The reliefs in the two motions before the lower court are diametrically opposed. The first motion is a quasi-criminal matter, seeking to punish the respondents therein for alleged violation of court order. The 2nd motion questions the competence of the trial court to make the order allegedly breached.
As demonstrated by His Lordship in the lead judgment, common sense should have guided the lower court in the exercise of its discretion to hear one motion before the other. If common sense had prevailed it would have been clear to the court below that the decision to take the motion for committal before the one on jurisdiction cannot be said to be judicial or judicious exercise of discretion. In effect, the appellant’s case is that the order allegedly disobeyed by them should not have been made for want of jurisdiction is. Once the issue of jurisdiction is raised in any proceedings the power of the court is limited to determining whether or not it has jurisdiction in the matter. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Chiedozie v. Omosowan (1999) 1 NWLR (Pt. 586) 317. Apart from the essential issue of jurisdiction the order in which the court below decided to proceed would violate S. 36(1) of the 1999 Constitution for the court has a duty to hear the appellant on why the order sought to be enforced against them should not have been made in the first place before hearing the motion for committal if need be. It would appear that the court below adopted an unnecessary sentimental approach to alleged disobedience of its order and forget the fact that lack of jurisdiction alleged by the appellant would render the entire proceedings null and void. See Sanyaolu v. INEC & Ors. (1999) 7 NWLR (Pt. 612) 600 CA.
The decision of the Supreme Court in Ojukwu v. Military Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 was misinterpreted and was applied by the trial court. In Ojukwu’s case contempt was not in issue. The Lagos State Government was in contempt and the apex court held that in the circumstances, a contemnor cannot be allowed to invoke the powers of the court. In this case not only has contempt not been established but the appellants sought to show that in law they cannot be held guilty of contempt.
For the above and the comprehensive reasoning in the lead judgment, I also allow the appeal and adopt the consequential orders.

OWOADE, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, Omage, J.C.A., just delivered. I agree with the reasoning and the conclusions. I also abide with the consequential orders.
The central issue in this appeal is whether the court should first hear an application for committal in breach of its order when an application by the respondents is pending for stay of execution of the order which application also challenges the jurisdiction of the court.
In the instant case, the learned trial Judge was wrong in coming to the conclusion that a committal proceeding takes precedence over motions for stay of execution and stay of further proceedings pending appeal which challenged the jurisdiction of the court. Indeed, jurisdiction being so fundamental, it is only logical that a court who though has assumed jurisdiction must constantly give preference to entertaining any challenge of its jurisdiction before any other steps are taken in the same proceeding.
The question of jurisdiction is the corner stone of all litigations. Consequently, once the jurisdiction of a court is challenged, the court is duty bound to determine whether or not it has jurisdiction first before proceeding to entertain the case. This is so because any order made in a suit by a court without jurisdiction is a nullity and remains so for all purposes. Ndaeyo v. Ogunnaya (1977) 1 SC 11: Funduk Engineering Ltd. v. McArthur (1995) 4 NWLR (Pt. 392) 640: Alao v. C.O.P. (1987) 4 NWLR (Pt. 64) 199; Rufai v. Olugbeja (1986) 5 NWLR (Pt. 40) 162.
In the instant case, the orders that were allegedly disobeyed were intrinsic to the substantive suit such that a decision that the court has no jurisdiction necessarily and without further ado renders the orders null. What would have been an exception to the general rule of giving priority to the question of jurisdiction is the entertainment of a contempt proceeding committed in the face of the court. The reason for allowing such priority in the case of contempt in the face of the court is to demonstrate to the public that the court, being the creature of the Constitution vested with the constitutional duty to decide cases between all manner of litigants can protect its dignity and would not allow the legislative or the executive arm of government or a citizen to brazenly do an act that would diminish the powers of administration of justice duly vested by the Constitution and the common law in the court.
Consequently, paramountcy ought to generally be given by way of priority of proceedings to contempt in the face of the court where the issues of contempt and jurisdiction collide for adjudication. See John Ebhodaghe v. Mike Okoye (2004) 18 NWLR (Pt. 905) 472 at 495 (per Pat-Acholonu, JCA).
The second issue in this case is the mis-application of the decision in Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 to the effect that a contemnor will not or cannot be heard. Although the general rule is that a contemnor will not or cannot be heard, there are some recognized exceptions to the said rule which are as follows.
(a) Where the party is seeking leave to appeal against the order for which he is in contempt.
(b) Where the contemnor tends to show that because of the procedural irregularities in making the order, it ought not be sustained.
(c) Where the order is being challenged on the ground of lack of jurisdiction.
(d) Where the contemnor seeks to be heard in defence of the order.
Ezegbu v. F.A.T.B. Ltd. (1992) 7 NWLR (Pt. 251) 89; Mobil Oil (Nig.) Ltd. V. Assan (1995) 8 NWLR (Pt. 412) 129; Alhaji Garba Isyaku & Ors. v. Ibrahim Master & Ors. (2003) 5 NWLR (Pt. 814) 443.
In the instant case, the respondents could not be heard to say that the appellants could not be heard as contemnors because the appellants’ applications before the lower court indeed queried the order of the court and challenged its jurisdiction.
The rule against the hearing of a contemnor seeking the exercise of the discretionary power of the court in his favour is a common law principle which does not and should not erode the constitutionally guaranteed right of the contemnor to be heard. See Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539; Isyaku v. Master (supra).
For these reasons and the fuller reasons contained in the judgment of my learned brother Omage, J.C.A., I also allow the appeal.
Appeal allowed.