OGBUAGU SAINT ANTHONY ANOZIA ONOWU v. OGBUAGU HBC. OGBOKO & ORS (2016)

OGBUAGU SAINT ANTHONY ANOZIA ONOWU v. OGBUAGU HBC. OGBOKO & ORS

(2016)LCN/8087(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of January, 2016

CA/OW/104/2009

RATIO

APPEAL: GROUND(S) OF APPEAL; WHETHER A GROUND OF APPEAL MUST ATTACK THE RATIO DECIDENDI OF THE JUDGMENT APPEAL AGAINST

We have stated repeatedly, that a ground(s) of appeal must attack the ratio decidendi of the judgment appeal against, to be competent and the Issue(s) distilled from the ground(s) of appeal must be seen to flow from the ground(s) or be rooted in the complaints against the live issue(s) in the judgment appealed against, to be competent. See the case of Barr. Enyinna Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) LPELR 25968 (CA); Ossai Vs FRN (2013) 13 WRN 87; (2012) LPELR 19669 CA; Igbokwe Vs Edom & Ors (2015) LPELR ? 5576 CA. per. ITA GEORGE MBABA J.C.A

PRACTICE AND PROCEDURE: CONTEMPT PROCEEDINGS; HOW TO COMMENCE CONTEMPT PROCEEDINGS

On how to commence contempt proceedings, this Court in the case of Nwawka Vs Adilkamkwu (2015) ALLFWLR (pt.804) 2064 held 6, spelt out the ways of commencing contempt proceedings, thus:
“There is not only one way of commencing contempt proceedings and the category of contempt being prosecuted determines the manner of commencement of the proceedings.

(a) Where the contempt consists solely of disobedience of an order of Court, the only acceptable procedure for commencing the proceeding is as provided in Section 72 of the Sheriffs and Civil Process Act and Order 9, Rule 13 of the Judgment (Enforcement) Rules , made pursuant to the Sheriffs and Civil Process Act, i.e. by issuance of Forms 48 and 49.

(b) Where the contempt consists of disobedience of a Court process or obstruction of an official of Court in the carrying out of his lawful duties, it is commenced by the procedure provided for in the High Court Rules, e.g. Order 42 of the High Court of Kano State (Civil Procedure) Rules, 1988.

(c) Where it is contempt committed in the immediate view and presence of the Court, such as insulting language or acts of violence or same near the presence of the Court as to obstruct or interrupt the due and orderly course of proceedings i.e. in facie curiae, it is dealt with by the Court, summarily. The offending party will be asked to go into the dock and a charge would be prepared by the Court and the offence of the offending party would be specifically and distinctly stated to him and he would be asked to show cause from the dock why he should not be punished for contempt.

(d) Where the insulting language or acts of violence occur outside the view of the Court, i.e. ex-facie curiae, the proceedings may be begun by the presentation of criminal charges against the offender by the office of the Attorney-General under the provisions of the Criminal or Penal Code.” per. ITA GEORGE MBABA J.C.A

PRACTICE AND PROCEDURE: CONTEMPT PROCEEDINGS; HOW THE COURT MUST CONDUCT A CONTEMPT PROCEEDINGS

By Order 9 Rule 13 (1) and (2) of the judgment (Enforcement) Rules, Cap. 56, Laws of Federal Republic of Nigeria:
“If the judgment debtor fails to obey the Order, the registrar, on application of the judgment creditor, shall issue a notice in 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.”
There are many judicial decisions (some of which were cited by parties in this appeal) to the effect that Forms 48 and 49 are Court processes to be issued by the Registrar of the Court, upon application by the judgment creditor. In the case of Akpan Vs Akpan (1996)7 NWLR (Pt.462)620 at 626, my Lord Niki Tobi JCA (as he then was) 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 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. In Alhaji Mora & Ors Vs Dr. Adeyeye (1990)4 NWLR (Pt.142)76, this Court 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 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 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 held:
“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 were 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 proceeding to enforce the order of the Court would therefore be commenced against him. That is the essence of issuance of the two Forms. See also Odu Vs Jolasso (2003) 8 NWLR (Pt.823) 574 at 560. Of course, having usurped the duties of the Registrar by issuing/signing the Form 49, which followed the unsigned Form 48, Appellant had reduced what would have been a serious judicial process to a sham and was impersonating the Court. No serious minded or legally enlightened Respondent would take him and the purported contempt proceedings seriously as they were personal scheme or personal vendata to intimidate and possibly punish his (Appellants) perceived enemies. Those Forms, certainly, fell short of the requirement of the law (Order 9 Rule 13 of the judgment (Enforcement) Rules) to kick start and sustain contempt proceedings. To make the matter worse, the Respondents were not served with the alleged Forms, as required by Law, which insists on personal service of contempt proceedings – Forms 48 and 49. See the case of F.C.D.A. Vs Koripamo Agary (2010)14 NWLR (Pt.1213)377 at 391-392, where it was held that
“the notice of motion and affidavit and grounds for committal for contempt committed ex facie curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of the case demands it, which is not the case where there was no application for substituted service Mil Gov. of Kwara State Vs Afolabi (1991)6 NWLR (Pt. 196) 212 at 227. Service of the relevant process on the clerk of the alleged contemnors would not constitute due process under the rules of Court and so the condition precedent to initiation of the proceedings and exercise of jurisdiction would not have been met and the result is fatal to the proceedings which are thereby rendered null and void. See also Aina Vs Jinadu (1992)4 NWLR (Pt.233) 90; Ogaji Vs Igonikon ? Digbani (2010)10 NWLR (pt.1202) 298 at 306; Uhunmwangbo Vs Okojie (1989)5 NWLR (Pt.122)471 at 487. Appellant being a lawyer of many years standing, should have known that the Order for substituted service of the “Writ of Summons, the statement of claim and all other process in this case” made on 13/8/08 did not extend to and could not have covered contempt proceedings, a completely new process of quasi criminal nature, which alleged disobedience to Court order and threatened the Respondents with imprisonment. They needed to be personally served with the alleged process and afforded opportunity to defend themselves. This was worse, as the alleged Forms 48 and 49 were not issued by the Court and so were not even “Processes in this case”, going by the old order of 13/8/08. That means, Appellants processes were fake and had no legal existence and so could not have enjoyed the cover of the old order for substituted service made on 13/8/08 to take care of all other processes filled by Appellant in the suit No. HOG/82/2008/. Like my lord, Tobi JCA (as he then was) said in the case of Akpan Vs Akpan (1996)7 NWLR (Pt.462) 620 at 626.
“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 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.” per. ITA GEORGE MBABA J.C.A

APPEAL: APPEAL AGAINST AN INTERLOCUTORY DECISION; WHETHER AN APPELLANT MUST SEE AND OBTAIN THE LEAVE OF THE LOWER OR APPELLANT COURT TO APPEAL AND WHETHER AN APPEAL CAN LIE WITHOUT LEAVE OF THE LOWER OR APPELLATE COURT

The law is however trite that where Appellant appeals against an interlocutory decision of a Court, he must seek and obtain the leave of the Lower Court or of the appellate Court to appeal, especially where the ground(s) of appeal raise(s) question of facts or of mixed law and facts. See Section 14 (1) of the Court of Appeal Act, 2004; Kwazo Vs Railway Property Co Ltd Anor. (2014) LPELR – 23737 (CA); Garba Vs Ummuani (2013) 12 WRN 76; Otu Vs ACB Intl Bank Ltd (2008) 3 NWLR (pt.1073) 179.
Though by Section 241 (1)(a) (b) of the Constitution of Nigeria 1999, appeal can lie without leave of the lower Court or appellate Court, where it is of a final decision of the High Court, sitting at first instance, or where the ground of appeal is of law alone, it is always advisable to seek leave where the decision is not of a final judgment of the High Court sitting at first instance. This is because it is sometimes difficult to conclude whether a ground(s) of appeal is purely of law and raises no issue of facts or mixed law and fact. See the write-up “Appeals to Court of Appeal: Observable Errors/problems – Trouble Shooting” by this author, (2015) CAR 396 at 401. See also UBA Plc Vs Otuoha & Ors (2014) LPELR ? 24360 CA; NJC Vs Agumagu (2015) LPELR 24503 (CA); Salihu & Ors Vs RTEAN & Ors (2013) LPELR 24503 CA; Garuba Vs Omokhodion (2011) LPELR 1309 (SC). per. ITA GEORGE MBABA J.C.A

PRACTICE AND PROCEDURE: WHEN IS AN ORDER MADE BY A COURT INTERLOCUTORY

It is equally doubtful, whether a decision of the trial Court, which dismissed application for committal of a defendant to prison, can be said to be an interlocutory decision, since the same has finally, put paid to the application, conclusively, by dismissing it. In the case of Garba Vs Ummuani (2013) 12 WRN 76, my learned brother, Ogbuinya JCA, in explaining an interlocutory decision, said: Where an order made by a Court finally determines the rights of the parties to the action, then it is final and where it does not, then it is interlocutory. See Igunbor Vs Afolabi (2001) 11 NWLR (pt.723) 148; Ogolo Vs Ogolo (2006) 5 NWLR (pt.972) 163; Owoh Vs Asuk (2008) 16 NWLR (pt.1112)113; Gomex Vs C & SS (2009) 10 NWLR (pt.1149) 223; General Electric Co. Vs Akande (2010) 8 NWLR (pt.1225) 596. per. ITA GEORGE MBABA J.C.A

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

OGBUAGU SAINT ANTHONY ANOZIA ONOWU Appellant(s)

AND

1. OGBUAGU HBC. OGBOKO

2. OGBUAGU TAGBO NSOFOR

3. OGBUAGU CHRISTOPHER IJEOMA NWAPA
(For themselves and on behalf of members of Igbuu Society of Oguta) Respondent(s)

ITA GEORGE MBABA J.C.A.: (Delivering the Leading Judgment) This is an appeal against the ruling of the High Court of Imo State in Suit No. HOG/82/2008, delivered by Hon. Justice P.C. Ikpeama, on 29/6/2009, wherein the trial Judge dismissed Appellant’s application for committal of the Respondents to prison and also dismissed the Respondents’ Preliminary objection, filed on 19/3/2009, challenging the Jurisdiction of the trial Court to entertain the Suit. Being dissatisfied with the Ruling, Appellant appealed, as per the Notice of Appeal on pages 61 to 62 of the Records of Appeal, compiled by Appellant, with the leave of this Court, granted on 18/10/2010. The Respondents also cross-appealed.

Appellant filed his brief of argument on 20/10/2010 and distilled three (3) Issues for the determination of the Appeal, namely:

“(1) Whether the procedure for commencement of proceedings for contempt ex-facie curiae is not via the application per Form 49 in accordance with Order 9 Rule 13 of the Judgment (Enforcement) Rules

(2) Whether the requirement of charge and arraignment is not only consequential to Issuance of Form 49 and

service thereof and on the initiative of the Court.

(3) Whether Services of Forms 48 and 49 by the same means of substituted service as ordered by the Court of the writ and statement of claim and all other processes on this Suit does not meet the justice of this case with regard to service.”

Appellant did not attempt to relate the issues to the grounds of appeal, but since the grounds of appeal are three as the issues are, it can be presumed the 3 Issues flowed serially from the 3 grounds of appeal.

The Respondents raised a preliminary objection to the appeal on pages 2 to 9 of their brief of argument, filed on 7/4/11, saying the three (3) grounds of appeal are incompetent, having complained against the failure of Lower Court to punish the Respondents for disobedience of its order because the Appellant failed to comply with the laid down procedure.

The Respondents also distilled 2 Issues for determination of the appeal, namely:

“(1) Whether the Appellant had substantially compiled with the procedure for the commencement and Issuance of contempt proceedings against the Respondents?

(2) Whether the Appellant could rely on the

order for substituted service made on 13/8/08 for the purpose of the contempt proceedings.?

Appellant filed a Reply brief to contest the preliminary objection on 10/3/11. When this appeal was heard on 20/10/15, Appellant was absent, but his brief was deemed duly argued, while the Respondents adopted their brief and urged us accordingly, in respect of the Appeal and the Cross Appeal.

As is our usual practice, I shall start with the preliminary objection, being a threshold issue. The Respondents had quarreled with the three (3) grounds of appeal formulated by the Appellant. The three grounds (without their particulars) read, as follows:

?(1) That the trial Judge erred in law in holding that filing FORMS 48 and 49 is not the correct procedure of bringing one in disobedience of a Court Order to face proceedings.

(2) That the learned trial Judge erred in law in holding that disobedient of Court Order, being non facie curiae, the one in disobedience should be charged and arraigned.

(3) That the learned trial Judge erred in law in holding that Forms 48 and 49 should be served personally when there is ?subsisting Court Order

that the Writ of Summons, statement of claim and all other processes in this Suit shall be served by substituted means: to wit, by posting/pasting and this shall be deemed proper service.?

Respondents? Counsel, H.B.C. Ogboko Esq, submitted that where an appeal is interlocutory and the question raised in the grounds of appeal is of mixed law and facts, leave of the trial Court or of the Court of Appeal is required to file the appeal. He relied on FCDD Vs Koripamo-Agary (2010) 14 NWLR (pt.1213) 377 at 395; Ehinlawo Vs Oke (2008) 16 NWLR (pt.1113) 357 at 397; Ugboaja Vs Akintoye (2008) 16 NWLR (pt.1113) 278 at 294.

Counsel also argued that the 3 Issues, being predicated on the alleged incompetent grounds, are also incompetent. He relied on Ikweki Vs Ebele (2005) 7 MJSC 125 at 150; Gbadamosi Vs Dairo (2007) 3 NWLR (pt.1021) 282 at 311 ? 312. He urged us to strike out the grounds and the issues there-from and relied on Ogunyade Vs Oshunkeye (2007) 15 NWLR (pt.1057) 218 at 240; Nwankwo Vs E.D.C.S.U.T. (2007) 5 NWLR (pt.1027) 377 at 395396. He also urged us to invoke the Order 6 Rule 6 of Court of Appeal Rules (2007) to strike out the appeal, in its

entirely, for being incompetent.

In Appellant?s Reply Brief, he urged us to dismiss the preliminary objection, saying that there was no consolidation of the application, the subject matter of this appeal and purported cross appeal. He also said that the grounds of appeal are all on law and not facts or mixed law and facts.

RESOLUTION OF THE PRELIMINARY OBJECTION

The ground(s) upon which the Respondents based their preliminary objection to this appeal, in my view, is not clearly thought out or stated. In paragraph 3.02 of the Respondents? brief, they submitted following the raising of preliminary objection to grounds 1, 2 and 3 of the grounds of appeal for being incompetent, that:
?A cursory look or perusal of the said Grounds 1, 2 and 3 shows that they are complaints against the failure of the Lower Court to punish the Respondents for disobedience of its Order because the Appellant failed to comply with the laid down procedure.?

While one expected the Respondents? Counsel to argue and show how the above submission can make the said grounds of appeal incompetent, Counsel suddenly switched over to the

issue of the appeal being interlocutory appeal, and Appellant not seeking and obtaining leave of the Lower Court or of this (appellate) Court to argue ground(s) which he said are of mixed law and facts. Throughout his argument, Counsel never raised that as the ground of the preliminary objection, and never stated which of the grounds of appeal was of mixed facts, nor did he show the Ruling which was interlocutory and required leave of Court to appeal against. The Appellant’s Reply, too, did not help matters, as it rather talked about consolidation of applications and purported cross appeal.

1999, appeal can lie without leave of the lower Court or appellate Court, where it is of a final decision of the High Court, sitting at first instance, or where the ground of appeal is of law alone, it is always advisable to seek leave where the decision is not of a final judgment of the High Court sitting at first instance. This is because it is sometimes difficult to conclude whether a ground(s) of appeal is purely of law and raises no issue of facts or mixed law and fact. See the write-up “Appeals to Court of Appeal: Observable Errors/problems – Trouble Shooting” by this author, (2015) CAR 396 at 401. See also UBA Plc Vs Otuoha & Ors (2014) LPELR ? 24360 CA; NJC Vs Agumagu (2015) LPELR 24503 (CA); Salihu & Ors Vs RTEAN & Ors (2013) LPELR 24503 CA; Garuba Vs Omokhodion (2011) LPELR 1309 (SC).

WRN 76, my learned brother, Ogbuinya JCA, in explaining an interlocutory decision, said:
?Where an order made by a Court finally determines the rights of the parties to the action, then it is final and where it does not, then it is interlocutory. See Igunbor Vs Afolabi (2001) 11 NWLR (pt.723) 148; Ogolo Vs Ogolo (2006) 5 NWLR (pt.972) 163; Owoh Vs Asuk (2008) 16 NWLR (pt.1112)113; Gomex Vs C & SS (2009) 10 NWLR (pt.1149) 223; General Electric Co. Vs Akande (2010) 8 NWLR (pt.1225) 596.?

I do not therefore think the Respondents are correct to see or take the decision of the trial Court, dismissing the application for committal, as interlocutory decision. Though, the application was taken in the course of a pending matter, to punish the Respondents for alleged disobedience of Court Order, the application was a separate cause and had a full life of its own and on being dismissed, its life terminated at the lower Court. It did not require any leave of Court to appeal against it. I therefore dismiss the preliminary objection for lacking in merit.

?Arguing the appeal, Appellant, who appeared in person, as per his brief, answered the issue one in the

affirmative, that is, that the procedure for commencement of contempt proceedings ex-facie curiae is via application per FORM 49, in accordance with Order 9 Rule 13 of the Judgment (Enforcement) Rules. He digressed to state what constitutes contempt of Court and asserted that Respondents were in contempt of Court. He also stated that the Respondents had committed civil contempt – exfacie curiae. He relied on the case of A.G, Anambra State Vs Okeke (2002)12 NWLR (pt.782) 575 at 612 – 613 on how to apply for redress, in contempt proceedings, that it is by the Order 9 Rule 13 of the Judgment (Enforcement) Rules, Cap 118 Laws of Eastern Nigeria 1963 applicable to the State, when an order enforceable by committal under Section 71 of the Law (Sheriff and Civil Process Law) 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 is 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 with the notice in Form 48 shall be served on the judgment debtor in like manner as a judgment summons. If the judgment debtor fails to obey the order, on the application of the judgment creditor the Registrar shall issue a notice in Form 49, not less than two 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. On the day named in the notice, the Court, on being satisfied that the judgment debtor has failed to obey the order, and if the judgment debtor does not appear and there is proof that the notice has been served on him, may order that he be committed to prison. He also relied on ABU Vs Alao (1969) 1 NWLR 207; Odu Vs Jolaosu (2003) 8 NWLR (pt.825) 547 to say that Forms 48 and 49 are never issued in the case of contempt committed in the face of the Court (infacie Curiae). He also placed reliance on Abbas Vs Solomon (2001) 15 NWLR (pt.735) 144.

On Issue 2, “whether the requirement of Charge and Arraigment is not only consequential to Issuance of Form 49 and service thereof, and on the initiative of the Court.” Appellant submitted that, while

a contemnor in facie curiae may be punished summarily, committal for contempt ex-facie Curiae, as in the instant case, is commenced by services of Forms 48 and 49, and as a consequence thereof, charge and arraignment, at the instance of the Court follows. He relied again on Odu Vs Jolaoso (supra); Darwin Pharm Chem. Vs Beneks Pharm (2000) 11 NWLR (pt.685) 66. He argued that on the above authority, it was clear that Appellant cannot commence Charge and Arraignment by reporting the contempt to the Police first, for investigation; that contempt proceedings in respect of civil contempt committed ex-facie curiae, has to commence by issuance of Forms 48 and 49 and the processes of Charge and arraignment are only consequential on the issuance of those forms and at the discretion of the Court.

?Appellant faulted the trial Court, when it said (on page 59 of the Records):
?Being contempt outside the Court, it is criminal in nature and cannot be punished summarily. The contem-nor must be arrested, charged before a Court, full trial conducted and if found guilty, punished according to law? There was no charge brought before me and no plea

taken”

Counsel further placed reliance on the case of Ejembi Vs A.G. Benue State (2003) 16 NWLR (pt.846) 337.

On Issue 3, whether the Service of Forms 48 and 49 by substituted means satisfied the requirement of the law, given the subsisting order for substituted service. Counsel answered in the affirmative, that the Order of Court, albeit by another judge, for substituted service of the writ, the Statement of Claim and all other processes, on the Respondents by substituted means also governed the service of Forms 48 and 49, being also “Processes in this Suit.” He argued that an order of Court subsists until it is set aside and relied on NDIC Vs SBN Plc (2003) 1 NWLR (pt.801) 315. He said that the writ of summons, being the foundation of the case, was served by substituted means and so any other process in the Suit could also be served by that means. He relied on Elebute Vs Faleke (1995) 2 NWLR (pt.375) 82 at 101.

He argued that where there is a standing order for substituted service in a Suit, all other process in the Suit, including contempt proceedings, should be served and can be served by that process. He relied Okeke Vs A.G.

Anambra State (1997) 9 NWLR (pt.519) 128 to say that Forms 48 and 49 are served in the same manner as judgment summons, thus, if writ of summons can be served by substituted means, Forms 48 and 49 can be so served too. He added that the Respondents never denied service of the processes; that by filing counter affidavit (rather than raising preliminary objection with regards to service), the Respondents had taken steps in the case and the issue of service had been overtaken or waived. He relied on Mangralit Vs Oduba (2004) 4 NWLR (pt.863) 279.

Counsel further argued that it will be judicial foolishness to ignore disobedience of receipt of any process leading to the committal application simply because of service adherence to a rule of procedure, now adherence to which would not occasion injustice. He relied on Shell Trustees (NIG) Ltd Vs Imani & Sons Ltd (2000) 6 NWLR (pt.662) 641; Mangralit Vs Oduba (supra); Ezuma Vs Nkwo MKT Comm. Bank Ltd (2000) 10 NWLR (pt.676) 838; Oruk Anam LG Vs Ikpa (2003) 12 NWLR (pt.836) 558; FCMB Ltd Vs Packoplast Nig Ltd (2000) 8 NWLR (pt.669) 527- that “Rules of Court are handmaids of justice. They should not be used to

hinder a just cause?. Okwueze Vs Ejiofor (2000) 15 NWLR (pt.490) 389 ?
?It is not all instances of non compliance with forms and procedure that will constitute a fundamental slip capable of overturning a decision arrived at, inspite of the slip. Therefore, where as in the instant appeal, The defects in both Forms 48 and 49 of the Judgment Enforcement Rules are trifles and insignificant, such slips cannot be held to be fundamental and incapable of being disgarded.?

He also relied on Ebere Vs Onyenge (2000) 2 NWLR (pt.643) 62 at 91 ?
?Rules are mere guideline set up to aid in the administration of justice. They do not constitute and are not meant to be the determinants for the successful prosecution of a case in the Court. A servant does not supplement the master. Each is considered in this own position.?

Appellant also relied on Odogwu Vs Odogwu (1992) 2 NWLR (pt.225) 534 to say that:
?The Court guards its Powers and Image jealously. It should therefore be extremely wary in the manner it exposes such image, the diminution of its powers and enforecement of its authority to public ridicule? May the time never

come when this type of illegal conduct will be allowed by the Courts! It will erode the very foundation of adjudication when self help rather than sanctions of the law will be order of the day.?

He urged us to resolve the issues for him and protect the Court and the orders of the Court.

The Respondents’ issue I was whether the appellant had substantially complied with the procedure for commencement and issuance of contempt proceedings against the Respondents. Counsel answered it in the negative. He reproduced the provision of Order 9 Rule 13 (2) of the Judgment Enforcement Rules, Cap 56, Laws of the Federation, 2004 which says:
“If the judgment debtor fails to obey the order, the Registrar, on application of judgment creditor, shall issue a notice in 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.”

Counsel said, Appellant in his overzealous nature had usurped the function and/or duty of the Registrar of the Court, by issuing the said Form 49 by himself and that was an aberration. He referred us to page 15 of

the Records of Appeal.

Counsel submitted that in any proceeding relating to contempt of Court’s Order, every document that is served on alleged contemnor must have the imprimatur of the Court and must not look or give the impression that it is coming from an individual or private source. He relied on F.C.D.A Vs Koripamo-Agary (2010)14 NWLR (pt. 1213)377 at 391; Akpan Vs Akpan (1996)7 NWLR (Pt.462) 620. He added that where there is a slightest deviation or non compliance with the rules, a Court of law must exercise its jurisdiction in favour of the contemnor, because the law cannot afford to gamble with the liberty of the individual. He relied on Ezeji Vs Ike (1997)2 NWLR (Pt.486) 206 at 221.

Counsel asserted again that the authority to issue forms 48 and 49 resides with the Registrar, not with the complaining party. See Order 9 Rule 13 (1) and (2) of the Judgment (Enforcement) Rules: Ogunlana Vs Dada (2010)1 NWLR (Pt.1176) 534 at 560; Omopena Vs Adelaja 19 (NLR 19 Olafa V BA Mogaji (1960) WRNLR 198; Okwueze Vs Ejiofor (2000)15 NWLR (Pt.690) 389 at 407. He said that Appellant, having usurped the duty of the Registrar of the Court, had failed to comply with

the Rules of Court and so the applications remained incompetent; that the non compliance with the provisions of the Rules had vitiated the entire proceedings. He relied on Ogaji Vs Igonikon Digbano (2010)10 NWLR (Pt.202) 298 at 306; Odu Vs Jolaoso (2003)8 NWLR (Pt.823) 547 at 56. He urged us to resolve the issue against Appellant.

On their 2nd issue, whether Appellant could rely on the order for substitute service made on 13/8/08 for the purposes of the contempt proceedings, Counsel for the Respondent answered in the negative. He relied on Order 9 Rule 13 (1) of the Judgment (Enforcement) Rules, to the effect that the Forms 48 and 49, issued by the Registrar, have to be served on the Respondent in like manner as a judgment summoned. He submitted that Appellant failed to effect personal service of the Forms on the Respondents; that such non fulfillment of the condition precedent was prejudicial to the party in default. He relied on F.C.D.A Vs Koripamo Agary (Supra) at 391 ? 392; AINA Vs Jinadu (1992)4 NWLR (Pt.233) 90 at 109.

Counsel said that committal proceedings, being quasi criminal trial, that the Applicant must satisfy the Court that he

took steps to serve and/or bring the order of Court to the Notice of the Respondents; that Appellant failed to do so in this case. He relied on Ogaji Vs Igonikon ? Digbani (supra) at 306. He added that Appellant could not rely on Exhibit E (affidavit of service by Bailiff showing service by substituted means), when there was no evidence of failed personal service; that it was wrong for Appellant to resort to order of substituted service made on 13/8/08, which had no bearing with the committal proceeding. He relied on Uhunmwangbo Vs Okojie (1989)5 NWLR (Pt.122)471 at 487
“It is well settled that motion and summons under Order 9 Rule 13 and Form 48 and 49 must be personally served. See Mander Vs Falcke (1891)3 Ch. 488; Enabrhire & Anor Vs Atamabo (1967) NMLR 253; O Donovan Vs O? Donovan (1955)1 WLR (1086).”

Respondents also argued, relying on the case of Access Bank PLC Vs UCO Consult Ltd (2009) 12 NWLR (Pt.1156)545 at 560 that;
“Punishment for contempt committed ex-facie curiae is criminal in nature and involves punishment of a person for his criminal act in relation to judicial process

perpetrated outside the face of the Court. A charge is therefore involved, a plea is necessary and the accused is entitled to fair hearing of the case against him. In both types of contempt, a trial is involved”?

He added that though the power to punish for contempt belongs to the Court, such power must be used sparingly Orijia Vs Akogun (2009)11 NWLR (Pt.1150) 437 at 449; Anakwe Vs Tapp Industry Ltd (1991)7 NWLR (pt. 202)177 at 206. He urged us to resolve the issue against Appellant and dismiss the Appeal.

RESOLUTION OF ISSUES
I think the two issues distilled by the Respondents are more apt for the determination of this appeal. The said issues 1 and 2 by Respondents are the same as Appellant’s issue 1, 2, and 3, couched differently, as Appellant’s issues 1 and 2 are in line with Respondents’ issue 1, and Appellant?s issue 3 is another expression of Respondents’ issue 2.

contempt proceedings and the category of contempt being prosecuted determines the manner of commencement of the proceedings.

prepared by the Court and the offence of the offending party would be specifically and distinctly stated to him and he would be asked to show cause from the dock why he should not be punished for contempt.

Did the Forms 48 and 49, issued by Appellant to commence the contempt proceeding, comply with the law and were the processes served on the Respondents, as required by law?

I shall take the two issues together. In his Ruling on 29/6/2009, the trial Court had held on page 59 of the Records:
“On the issue of contempt, the alleged contempt did not take place in the Court but outside the Court. Being contempt outside the Court, it is criminal in nature and cannot be punished summarily. The contemnor must be arrested, charged before the Court, full trial conducted and if found guilty, punished according to law. See Omoijahe Vs Umoru (2000) FWLR (Pt 29) 2401

at 2406. In the instant case the contempnors (sic) were served Forms 48 and 49 through substituted service. Being a criminal process, the Forms ought to be served personally in accordance with Order 9 Rule 13 of the Judgment Enforcement Rules. See Aina Vs Jinadu (1992) NWLR (Pt.122) 471 at 497 para D – E. There was no charge brought before me and no plea was taken. The only evidence before me is the affidavit evidence on both sides. The Contemptnors (sic) did not defend themselves against the contempt charge other then the affidavit evidence. Can they be convicted without a hearing other than affidavit evidence on both sides? I am of the considered view that this contempt, being criminal in nature, the required standard of proof has not been attained to enable the Court punish the defendants. See Anakwe Vs Tapp Industry Ltd (1991)7 NWLR (pt.202) 177 at 201. Para E – F. In the circumstances, the defendants are hereby discharged for want of evidence.”

Appellant did appeal against the above findings that the Respondents were served with the contempt proceedings (Forms 48 and 49) by substituted means, not by denial of the mode of service,

but trying to justify the service by substituted means. Appellant also tried to question whether contempt proceedings cannot be or is not usually properly commenced by issuance of Forms 48 and 49 as stipulated by Order 9 Rule 13 of the Judgment (Enforcement) Rules. He did not go further to confess that the said Forms 48 and 49 were issued by him, directly, to the Respondents (and served by substituted means, relying on a subsisting order for substituted service made on 13/8/2008, when the contempt proceedings were never contemplated).

Pages 14 and 15 of the Records of Appeal carry the purported Form 49 issued by the Appellant. He signed the process by himself and page 24 of the Records of Appeal carries the purported Form 48, issued by the Appellant. Though the word REGISTRAR is printed at the right bottom of the document, the same is not signed or endorsed by anybody. Those are the documents Appellant relied upon as Forms to commence the contempt proceedings. They were his documents, not Court processes and so, even if they were duly served on the Respondents, (which were not), the Respondents had every right/reason to ignore them as they were evidence of

tantrum or overzealousness by the Appellant. They were not Court documents and so had no force of law to compel obedience.

?By Order 9 Rule 13 (1) and (2) of the judgment (Enforcement) Rules, Cap. 56, Laws of Federal Republic of Nigeria:
“If the judgment debtor fails to obey the Order, the registrar, on application of the judgment creditor, shall issue a notice in 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.”
There are many judicial decisions (some of which were cited by parties in this appeal) to the effect that Forms 48 and 49 are Court processes to be issued by the Registrar of the Court, upon application by the judgment creditor. In the case of Akpan Vs Akpan (1996)7 NWLR (Pt.462)620 at 626, my Lord Niki Tobi JCA (as he then was) 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 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. In Alhaji Mora & Ors Vs Dr. Adeyeye (1990)4 NWLR (Pt.142)76, this Court 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 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 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 held:
“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 were 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 proceeding to enforce the order of the Court would therefore be commenced against him. That is the essence of issuance of the two

Forms. See also Odu Vs Jolasso (2003) 8 NWLR (Pt.823) 574 at 560.

Of course, having usurped the duties of the Registrar by issuing/signing the Form 49, which followed the unsigned Form 48, Appellant had reduced what would have been a serious judicial process to a sham and was impersonating the Court. No serious minded or legally enlightened Respondent would take him and the purported contempt proceedings seriously as they were personal scheme or personal vendata to intimidate and possibly punish his (Appellants) perceived enemies. Those Forms, certainly, fell short of the requirement of the law (Order 9 Rule 13 of the judgment (Enforcement) Rules) to kick start and sustain contempt proceedings.

To make the matter worse, the Respondents were not served with the alleged Forms, as required by Law, which insists on personal service of contempt proceedings – Forms 48 and 49. See the case of F.C.D.A. Vs Koripamo Agary (2010)14 NWLR (Pt.1213)377 at 391-392, where it was held that
“the notice of motion and affidavit and grounds for committal for contempt committed ex facie curiae must be served personally on the person sought

to be committed, provided that the Court may dispense with personal service where the justice of the case demands it, which is not the case where there was no application for substituted service Mil Gov. of Kwara State Vs Afolabi (1991)6 NWLR (Pt. 196) 212 at 227. Service of the relevant process on the clerk of the alleged contemnors would not constitute due process under the rules of Court and so the condition precedent to initiation of the proceedings and exercise of jurisdiction would not have been met and the result is fatal to the proceedings which are thereby rendered null and void. See also Aina Vs Jinadu (1992)4 NWLR (Pt.233) 90; Ogaji Vs Igonikon ? Digbani (2010)10 NWLR (pt.1202) 298 at 306; Uhunmwangbo Vs Okojie (1989)5 NWLR (Pt.122)471 at 487.

Appellant being a lawyer of many years standing, should have known that the Order for substituted service of the “Writ of Summons, the statement of claim and all other process in this case” made on 13/8/08 did not extend to and could not have covered contempt proceedings, a completely new process of quasi criminal nature, which alleged disobedience to Court order and threatened the

Respondents with imprisonment. They needed to be personally served with the alleged process and afforded opportunity to defend themselves. This was worse, as the alleged Forms 48 and 49 were not issued by the Court and so were not even “Processes in this case”, going by the old order of 13/8/08. That means, Appellants processes were fake and had no legal existence and so could not have enjoyed the cover of the old order for substituted service made on 13/8/08 to take care of all other processes filled by Appellant in the suit No. HOG/82/2008/.

Like my lord, Tobi JCA (as he then was) said in the case of Akpan Vs Akpan (1996)7 NWLR (Pt.462) 620 at 626.
“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 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.”

I cannot therefore disturb the findings and holding of the trial Court in this case, and I resolve the issues against the

Appellant and dismiss the appeal, with fifty thousand naira (N50,000.00) cost to the Respondents, to be paid by the Appellant.

CROSS APPEAL
In the Cross-Appellants’ brief, deemed filed on 19/2/13, they distilled 2 issues for determination, namely:
(1) Whether Igbbuu Society of Oguta is a Juristic person known to law before the Honourable Court.
(2) Whether in the circumstance of this case, is this suit not abuse of the process.

The Cross Appellant did not relate the issues to the grounds of the Cross appeal which were two. But a close look of the grounds would trace some relationship between the issue one and the 2nd ground of appeal.

The Cross Appellant had challenged the jurisdiction of the trial Court to entertain the suit of the Cross – Respondent via a motion on Notice filed on 14/11/08 at the lower Court. The motion was heard together with the application for contempt of Court. The trial Court had dismissed the Cross Appellants’ objection, saying the action by the Cross Respondent was competent. This Cross appeal is against that holding of the lower Court.

The Cross – Appellant’s argument was that Igbuu Society of Oguta has

no anchor in any of the definitions of persons known to the law, as stated in the case of Gov. of Kwara State Vs Lawal (2007) 13 NWLR (pt.1051) 359, as it does not have any written Constitution. He relied on the case of Nduka Vs Ezenwaku (2011) 6 NWLR (pt.709)498.

The Cross Respondents answer to this argument was simple. He submitted that Igbuu Society being an amorphose body, without Constitution and record books, any of its senior members can be sued on behalf of the body; that the 3 Cross Appellants were senior members of the organisation and can be sued on behalf of the body; that the 3 Cross Appellants were senior members of the society.

The trial Court held, on page 58 of the Records of Appeal:
“The Igbuu Society of Oguta, it is agreed by both sides, is an unicorporated association and has no Constitution. An unicorporated association of persons does not have the legal status of a juristic person. It can only sue or by (sic) sued in representative capacity through its members. See UBN PLC Vs Ntuk (2003) 16 NWLR (pt.845) 183 cited by Counsel. See also Nduka Vs Ezenwaku (2001) 6 NWLR (pt.709)498. In the instant case the Igbuu Society not being

incorporated Society cannot be sued but can only be sued through its members. The Plaintiff has sued 3 members on behalf of the other members. It is contented that the action is incompetent as the Plaintiff is a member and cannot sue other members implies that he is not one of the defendants as he cannot be a plaintiff as well as defendant. Whether the plaintiff sued excludes himself or not, there is an implication that he is excluded since he cannot be plaintiff as well as defendant. In any case, the association, not being registered, only the members can be sued and not the body of which the plaintiff is member. It is the contention of the defendants that the principal officers were not sued and the proper parties are not before the Court? If there are principal officers who felt that they ought to be joined in the suit for effectual and complete settlement of the issues before the Court, they can apply to join as plaintiff as chosen those alleged that wronged him and has sued for redress

I think trial Court properly stated the law in the circumstances, as per the above, and it cannot lie in the mouth of the Cross Appellants to choose

the person’s the Cross Respondent should have sued to represent the Igbuu Society of Oguta, having admitted that the Igbuu Society is an amorphose body and that the 3 Cross Appellants were members of the society. By law, any member of organisation (whether principal officer of not) can maintain an action in the name of the amorphose body, just as any member of a family can take action or defend action to protect a family property. See Nwachukwu Vs Okaelu (2015) LPELR – 24276 (CA) where it was held:
“The Respondent’s Counsel had submitted that given the fact that the Penticostal Promise Mission was not registered under part C of the Companies and Allied Matters Act (CAMA), with the Corporate Affairs Commission, to be able to sue by its registered trustees, the only lawful means for the body to bring an action was by its representative, the Respondent. He relied on Supreme Court case of NBA Vs Fawehinmi (1986) 2 NWLR (pt.21) 224. I agree completely with the Respondent. In representative action, what is important is to show common interest or common grievance and that the relief sought by the claim is beneficial to all. See Nwanguma &

Ors Vs Ikpaande & Ors (1992) 8 NWLR (pt.258); Nduulue Vs Onyekwuhinne (2002) SC (pt 11)124; Oragbaide vs Onitiju (1962) All NRL 32; Ogamioha vs Oghene (1961) SC NRL 115. Nobody can deny that the common interest of all the members of the unregistered body is also tied to the relief sought in this case by the Respondent.”

The same, as above, can be said of this case, where pf the cross-respondent sued the cross-Appellants for them selves and on behalf of members of Igbuu Society of Oguta). Since the membership of the Cross-Appellants in the said Society was not denied, and the said society lacked the legal capacity to stand on its own, the action was properly initiated and maintained. The Cross-Appellants therefore, appeared confused when they querried “whether Igbuu Society of Oguta is a juristic person known to law therefore are the necessary parties before the Court”, whereas, the Cross Respondent never claimed the Society to be a justice person and the decision of the trial Court, complained against, never said so or suggested that Igbuu Society could sue or be sued as a legal person, in its own name.

The said

issue (1) by the Cross-Appellant is therefore a total stranger to the judgment of the trial Court, appealed against. The same can also be said of the issue 2 by the Cross-Appellant, which is:
“Whether in the circumstance of this case, is this not an abuse of the process?

There is no ground of appeal to sustain that Issue 2.Cross-Appellants’ two grounds of appeal were (without particulars):

“(1) The learned Trial Judge erred in law when he held: The Principal Officers who feel that they ought to be joined in this Suit for effectual and complete settlement of the issues before the Court, they can apply to join as the Plaintiff has chosen those he alleged that wronged him and has sued for redress.

“(2) The learned Trial Judge erred in law which (Sic) he held that the preliminary objection therefore fails and/hold that the action is competent and proper.”

None of the above grounds related to the issue one of the Suit, being abuse of the process. Even the issue one, which I had discussed, only vaguely related to the first ground with its reference to competence of parties or necessary party.

We have stated

repeatedly, that a ground(s) of appeal must attack the ratio decidendi of the judgment appeal against, to be competent and the Issue(s) distilled from the ground(s) of appeal must be seen to flow from the ground(s) or be rooted in the complaints against the live issue(s) in the judgment appealed against, to be competent. See the case of Barr. Enyinna Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) LPELR 25968 (CA); Ossai Vs FRN (2013) 13 WRN 87; (2012) LPELR 19669 CA; Igbokwe Vs Edom & Ors (2015) LPELR ? 5576 CA.

I do not see any merit in the Cross Appeal and the same is hereby dismissed, with cost assessed at Fifty Thousand Naira only (N50,000.00).

IGNATIUS IGWE AGUBE, J.C.A.: I have the privilege of reading the draft of this erudite Judgment of my Learned brother I.G Mbaba, JCA and am in complete agreement with him that the preliminary objection for the copious reasons advanced and the authorities considered and analyzed is unsustainable and same is accordingly dismissed.

As for the substantive Appeal which touches on the procedure adopted in the committal proceeding against the Respondents, my Lord had

stated the obvious that the Appellant usurped the powers of the Court/Registrar by issuing an unsigned Form 48 and following it up with serious judicial process. Accordingly, the Court below was right in treating the said Forms as not being process emanating from the Court.

Above all and as rightly observed by my Lord, at page 20 of the Judgment, the Respondents were not personally served with the said forms but that the order for substituted service on the authorities of F.C.D.A V. Kori Pamo-Agary (2010) 14 NWLR (Pt. 1213) 377 at 391-392; Uhunmwangho V. Okojie (1989) 5 NWLR and Ama V. Jinadu (1992) 4 which was a new process of quasi-Criminal nature which alleged disobedience threatened the Respondents with imprisonment.

I also agree with my Learned brother that processes that initiated the contempt proceedings were fake and without any legal basis. In line with the decision of Tobi, JCA in Apkan V. Akpan (1996) 7 NWLR (Pt.462) 620 AT 626; on the need for strict compliance with procedural and that the slightest breach or non-compliance with the Rules would vitiate the contempt proceedings, I also sustain the findings of the Trial Court and resolve all the

Issues against the Appellant. The Appeal is accordingly dismissed with N50,000.00 costs as awarded by my Lord in his lead Judgment.

As for the Cross-Appeal, I have also read through the Judgment of the lower Court and I am also of the candid view that the Issues raised by Cross-Appellants do not arise from the two Grounds of Appeal by them and therefore in line with our decision in Barr. Enyinna Onnegbu & Ors. V. Govt. of Imo State (2015) LPELR- 25968; Ossai v. FRN (2013) WRN 87 and Ibgokwe V. Edom & Ors (2015) LPELR- 5576 (CA); the Cross-Appeal is also unmeritorious and accordingly dismissed with N50,000.00 in favour of the Cross-Respondent.

FREDERICK O. OHO, J.C.A.: I had the opportunity of reading in advance the Judgment delivered by my learned Brother, Ita George Mbaba. JCA. The issues presented on appeal were competently dealt with and carefully resolved in the lead judgment. I have nothing more to add to a well-written Judgment by my learned Brother. In that respect, I also dismiss both the Appeal and the Cross-Appeal as they are lacking in merit. I abide by all other consequential orders made thereto. ? ? ? ? ?

Appearances

Tony Anozia, Esq.For Appellant

AND

H.B.C. Ogbolo, EsqFor Respondent