OLUFEMI ODU v. CHIEF TIAMIYU JOLAOSO & ORS
In The Court of Appeal of Nigeria
On Thursday, the 21st day of March, 2002
SUNDAY AKINOLAAKINTAN Justice of The Court of Appeal of Nigeria
MORONKEJI OMOTAYO ONALAJA Justice of The Court of Appeal of Nigeria
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
OLUFEMI ODU Appellant(s)
- CHIEF TIAMIYU JOLAOSO
2. REV. OLOYEDE SODIPO
3. CHIEF YUSUFU BALOGUN
4. MADAM TELEOLA SOWUNMI
5. ALHAJI OLAYINKA AKINREMI
6. EMMANUEL SIHOLA OKEDIRAN
7. SULEIMAN ADEKUNLE Respondent(s)
AKINTAN, J.C.A. (Delivering the Leading Judgment): The appellant, Olufemi Odu, had on 18/7/90 moved the Ota Chief Magistrate Court, Ota in Ogun State for permission to bury the corpse of his late father, Rabiu Odu, who died on 10/7/90 “in his house at Oke village, Ifo”. The motion was ex-parte and it was supported by a six paragraph affidavit in which the applicant did not disclose anything about land dispute or dispute over the place of burial of the corpse in the said village. The learned Presiding Senior Magistrate, having found that on the face of the application which was brought in compliance with the requirement of section 6 of the Burials Law of Ogun State, 1978 was in order, granted the request. The applicant thereafter went ahead by burying the said corpse in the house in question. The present respondents, on becoming aware of the matter filed a motion on notice before the same Ota Chief Magistrate Court. They prayed the court for an order setting aside its earlier order granting the appellant permission to bury the said corpse in the compound and for an order that the corpse buried there be exhumed.
Their application was supported with an affidavit in which they averred that the deceased and his children were not members of Oke village and that the deceased got to the village sometime in the 1960’s as a stranger. While in the village, the man was employed by the then Bale (the Chief of the village) as a farm-help who also allowed him (the deceased) and his other farm-helps to live in a building which belonged to the community. It was the said community building that the appellant got the court’s leave through an ex parte motion to bury his deceased father.
The learned presiding Chief Magistrate, having found that the earlier order was made without the appellant disclosing the correct facts, granted the prayer of the applicants (now respondents). He then set aside the earlier order and ordered that the corpse buried in the compound be exhumed. The appellant appealed to the High Court, Ota against the ruling of the learned Chief Magistrate and his appeal was dismissed. He also filed a further appeal to this court against the judgment of the High Court. But that appeal was abandoned.
The appellant failed to comply with the court order that his father’s corpse buried in the compound in question be exhumed.
The respondent then filed an application for the committal of the appellant for contempt. The application for committal was given Suit No. HCT/4A/91. It came up for hearing before Ogunlesi-Adio, J. At the hearing, the respondent raised a preliminary objection as to the competency of the application. A ruling on the objection was later delivered. The learned Judge found that the application was defective in that there was a failure to comply with the relevant rules of the court. The objection was therefore upheld and the application was struck out on 13/7/95 as being incompetent for “non-compliance with Order 9 rule 13(3)” of the High Court Rules of Ogun State.
The application for committal was renewed by the respondents.
This time, it was during the proceedings in an action instituted by the appellant before the High Court, Ota. His claim was, inter alia, for title to the land in respect of the building where he buried the corpse of his late father. The present respondents were also the defendant in that action which was given Suit No. HCT/11/94. The claim was before Jacobs, J., as he then was. The fresh application was filed before the said learned Judge.
When the matter came up before Jacobs, J. on 13/5/98, the proceedings for that day as contained on page 8 of the record is as follows:-
“Suit No. HCT/4A/91., Between:, O. Odu v. Chief T. Jolaoso & Ors.
Applicants are absent except 1st, 7th and 8th., Respondent is present, Jide Agbaje, Esq. appears for the respondent
E O. T. Akinbiyi, Esq. appears for the applicants (S. O. Dabo with him).
Mr. Agbaje says that he is not fit enough today to take the preliminary objection in the case. However, in the interim his client continues to remain in contempt of the court’s order. Mr. Agbaje asked for adjournment.
Court: This application is adjourned to 19/5/98. In the meantime, the contemnor is hereby granted bail in the sum of N50,000 with 2 sureties in N25, 000 each. Sureties to reside within jurisdiction and possess immovable assets. Where the contemnor fails to provide suitable sureties, he should be remanded in police custody till the next adjournment date which is 19th of May, 1998 which this application stands adjourned. Sgd. C. O. Jacobs Judge, 13/5/98.”
The present appeal is against the above order of the learned Judge. Four grounds of appeal were filed against the said ruling.
The parties filed their respective brief in this court. The appellant formulated the following single issue in the appellant’s brief:
“Has the trial court followed the proper contempt procedures in convicting the appellant on the 13/5/98 for contempt of court when the committal application before that court was yet to be heard?”
The respondents, on the other hand, formulated four issues as arising for determination in the appeal. The four issues are as follows:
“1. Whether the lower court Judge convicted the appellant within the con of a committal proceedings?.
2. Whether the lower court Judge sentenced (committed) the appellant to imprisonment?.
3. Whether it was a proper procedure for the lower court Judge to admit the appellant to bail?, and if so, whether the term of the bail were excessive?.
4. Whether the court can grant the reliefs sought by the appellant?.”
I believe that the four issues formulated in the respondents’ brief are merely an expansion of the single issue formulated in the appellant’s brief. The single issue formulated in the appellant’s brief is, in my view, more appropriate in resolving the questions raised in the appeal. I therefore adopt it for the purpose of resolving the questions raised in the appeal.
The main grievances of the appellant as canvassed in the appellant’s brief are that the learned trial Judge was wrong in describing the appellant as “the contemnor” and granting him bail “in the sum of N50, 000 with 2 sureties in N25, 000 each. Sureties to reside within jurisdiction and possess immovable assets. Where the contemnor fails to provide suitable sureties, he should be remanded in police custody till the next adjourned date ..”
It is submitted that the learned trial Judge had by his action convicted and imposed punishment on the appellant before hearing the allegation made against the appellant. It is further argued that since the allegation made against the appellant is that of contempt, it being a criminal charge, the burden of proof is by law on the applicant and the standard of proof required is one beyond reasonable doubt. As the facts of the allegation made against the appellant could not support contempt in the face of the court, it is submitted that the steps taken by the learned Judge was totally wrong because the matter was yet to be argued before the court. As the entire procedure adopted by the learned Judge was said to be wrong, this court is urged to allow the appeal and declare the entire procedure before the court a nullity.
It is submitted in reply in the respondent’s brief that the step taken by the learned trial Judge was quite in order and within the requirement of the law. Reference is made to the provisions of section 63 of the Sheriffs and Civil Process Law, Cap. 118, Laws of Ogun State, 1978 and Order 9 rule 13 of the Judgments (Enforcement) Rules, made as a subsidiary legislation to Cap. 118 which respectively provide for committal for refusal to comply with court order and the procedure to be followed in bringing a contemnor to justice. It is argued that since both Forms 48 and 49 had been served on the appellant in the instant case, it was right of the learned trial Judge to take the step he took in the case by granting bail to the appellant on the conditions specified by the court. It is further argued that what the lower court was faced with was not a trial to determine whether the appellant was in contempt but to determine why he should not be punished for being in contempt of the court.
The learned trial Judge is therefore said to be right in referring to the appellant as a contemnor.
The application before the learned trial Judge was for the committal of the appellant for contempt in that he failed and continued to disobey the order of the court to exhume the corpse of his late father from the place where he buried it. At the time the matter came up before the learned trial Judge, both Forms 48 and 49 had been served on the appellant. Form 48, titled: “Notice of Consequences of Disobedience to Order of Court” provides, inter alia, as follows:
“To … of… Take notice that unless you obey the directions contained in this order you will be guilty of contempt of court and will be liable to be committed to prison. Dated … Day of … Registrar… ”
It is clear from the contents of the Form 48, as set out above, that it is aimed at giving notice to anyone believed to be in contempt of an order of court that unless he takes steps to comply with the court order in question he would be committed to prison for contempt of the said order of court. It follows therefore that if the person upon whom the form was served upon takes immediate step to comply with the said order of court, all he needs to do is merely to immediately inform the court that he had complied with the order.There would therefore be no need to proceed further with him. The Forms 48 and 49 are required to be signed by the registrar of the court in which the application for committal is made. In the earlier application made against the appellant, the Form 49 was not signed by the registrar of the court. It was erroneously signed by the Judge. This was the reason why the application was struck out by Ogunlesi Adio, J. as being incompetent
If upon service of Form 48 on the person accused of failing to comply with the court’s order, he fails to comply with the said order, then Form 49 would be served on him. Form 49 reads, inter alia, as follows:-
“Take notice that the plaintiff (or defendant) will on … apply to this court for an order for your committal to prison for having disobeyed the order of this court made on enjoining you (and or restraining you) from
….. And further take notice that you are hereby required to attend the court on the first-mentioned day to show cause why an order for your committal should not be made …”
Both Forms 48 and 49 had been served on the appellant in the instant case. He was in fact in court before the learned trial Judge on 13/5/98 only to show cause why an order for his committal should not be made. His invitation to court was not, at that stage, for the purpose of being tried for contempt. That stage had passed. The applicants had lodged a complaint against him that he failed to comply with the court order that he should exhume the body of his late father from where it was buried. He did not deny the complaint when Form 48 was served on him. He also failed to inform the court that he had complied when he appeared before the court on 13/5/98.
The court was therefore quite right in describing him as a contemnor.
The description of the appellant by the court is no doubt in accordance with the practice in contempt cases: see Atake v. A.-G., Federation & Anor. (1982) 3 NCLR 66, (1982) 2 SC 153, (1982) NSCC 444 at 461 and 473; Deduwa & Ors. v. State (1975) All NLR 1 at 12; Boyo v. A.-G., Midwest State (1971) 1 All NLR 342 at 354; and Mcleod v. St. Aubyn (1899) A.C. 549 at 561.
The contempt charge against the appellant was not one committed in facie curiae (in the face of the court), hence the need to issue Forms 48 and 49. Those two forms are never issued in cases of contempts committed in the face of the court. Their issuance is restricted to cases of contempt ex facie curiae or contempt outside the court. The application made against the appellant was made in accordance with the provisions of Part 4 (sections 46 to 73) of the Sheriffs and Civil Process Law, Cap. 118, Laws of Ogun State which deals with post-judgment proceedings in civil cases. Section 63 of the Law provides, inter alia, that: “If any person refuses to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of misconduct defined in paragraph (f) of section 57, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.”
The procedure for bringing the contemnor to court to give effect to the provisions of section 63 is as stipulated in Order 9 rule 13 of the Judgments (Enforcement) Rules. Order 9 rule 13(1) provides for the service on the contemnor of Form 48 to be endorsed with the Order in question if he was not present when the order for which he is in default was made. Order 9 rule 13(2), on the other hand, provides for the issuance by the registrar of Form 49 if the contemnor fails to obey the order of the court (after having been served with Form 48).
The position in the instant case was that Form 48 was served on the appellant. This was followed by the service on him of Form 49 after he failed to obey the order of the court of which he was in breach after having been served with Form 48. He was therefore brought before the court in compliance with the directive on Form 49. The reason why he was therefore brought to court was not for the purpose of being tried for contempt of court. It was solely for him to show cause why an order for his committal to prison for contempt should not be made. The question then is, upon his appearance before the court on that day, whether the step taken by the learned trial Judge was right having regard to the request from the appellant’s counsel for an adjournment on the ground that he (counsel) was not fit enough to take the application he filed for a preliminary objection in the case.
The application before the court which the appellant’s counsel could not move, was not one that the appellant had complied with the order of the court in question. The fact that the appellant was still in contempt of the order of the court was therefore not disputed or denied as at the time the court made the order which is the subject of the present appeal. As already stated above, the appellant was brought before the court on that day to show why he should not be committed to prison for being in contempt of the order of the court.
The court could therefore not allow him (appellant) to leave the court on that day as a totally free man until the next adjourned date on 19/5/98. The order to grant the appellant bail, in my view, is a very generous option granted to the appellant since he failed to satisfy the court that he had complied with the court order in question or satisfied the court as to why he could not comply with the said order.
Disobedience of court order is a very serious offence which every court should not allow to go unpunished. This is because treating such act with levity could lead to total destruction of the entire judicial system and all that administration of justice stands for. The law will by that be rendered incapable of commanding any respect. Such a situation will no doubt portend a very bad omen for not only the administration of justice, but could constitute a great danger to the existence of the nation. This is the main reason why the onus is on every judicial officer, including counsel, to ensure that instances of contempt of order of court should never be treated with levity: see Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539; and Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 129.
In conclusion, therefore and for the reasons given above, all the steps taken by the learned trial Judge in the appellant’s case, particularly by granting the appellant bail, were quite in order and the conditions of the bail granted to him were also quite in order.
There is therefore totally no merit in the entire appeal and I accordingly dismiss it with N10, 000 costs in favour of the respondents.
ONALAJA, J.C.A.: This unusual case but interesting one about the Burials Law of Ogun State touches a very important aspect of the rule of law in a democracy on the obedience of court orders which disregard or disobedience leads to the law of contempt. One vital problem that is perennial to the court is the procedure for contempt and proceedings which by coincidence was treated in my latest book Commentaries from the Bench Part III pages 51 to 76 on the topic “Contempt of Court Procedure and Proceedings”.
A perusal of the lead judgment delivered by my learned brother, Akintan, JCA critically and analytically considered the law of contempt and procedure encapsuled as the singular issue formulated by the appellant as the only issue germane in this appeal. After a careful appraisal and assessment of the issue on appeal being in agreement with the reasonings and conclusion makes me to adopt the reasonings and conclusions as my own with the treatment of contempt proceedings as quasi criminal with the burden to establish the contempt by proof beyond reasonable doubt as held by the Court of Appeal in Uriel Ezeji v. H. C. Ike (1997) 2 NWLR (Pt.486) page 206 at page 223.
“A committal proceeding for deliberate disobedience of a court order connotes mens rea and being also quasi criminal, the standard of proof is the standard required in a criminal matter being proof beyond reasonable doubt.”
As the disobedience by appellant is refusal of order of a competent court it is a civil contempt Chief Gordon Davidson Dibia v. Chief Moses Ezi Igwe (Eze Ohali) and 14 Ors. (1998) 9 NWLR (Pt.564) page 78 at 80 and 81 C.A. Prince AdemolaAdeniji Adele & Two Ors. v. Madam E. Ogbe & Ors. (1998) 4 NWLR (Pt.545) page 224 at 654, 655 C.A.For the fuller reasons given in the lead judgment as I have nothing more useful than my comments above, I also dismiss the appeal having concurred in the reasonings and conclusions adumbrated in the lead judgment. I abide with consequential orders made in the lead judgment especially the order of costs.
ADAMU, J.C.A.: I was privileged to have read the draft of the judgment of my learned brother, Akintan, JCA in this appeal. The single and lone issue formulated by the appellant has been properly thrashed and rightly resolved in the said judgment. I therefore agree with and adopt the conclusion reached by my learned brother that the appeal lacks merit and should be dismissed. I accordingly hereby dismiss it. It is my humble view that the appellant who remained in contempt of court and was by virtue of Form 49 bound to show cause why he should not be committed for contempt his position could be likened to that of an accused person standing trial of a criminal charge. This being so, the learned trial Judge was in my view, very lenient and kind to the appellant by admitting him to bail suo motu and ex gratia. That approach was more liberal and better for the appellant than his being remanded in prison or police custody until the next adjourned date which the learned trial Judge could have ordered against the said appellant who remained in contempt of the order of the court and was properly called a contemnor, thus the order of the learned trial Judge was not only proper but was in leniency to the appellant. I therefore also hold that the appeal has failed and I abide by the order on cost made in the leading judgment.
Fred AgbajeFor Appellant
- T. AkinbiyiFor Respondent