RICHARD EMEJUO NWOSU & ORS. v. GABRIEL N. NZEADIBE (2010)

RICHARD EMEJUO NWOSU & ORS. v. GABRIEL N. NZEADIBE

(2010)LCN/4124(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of December, 2010

CA/PH/114/2003

RATIO

CONDITIONS FOR THE SERVICE OF FORM 49 UNDER THE SHERIFFS AND CIVIL PROCESS AND JUDGMENTS (ENFORCEMENT) RULES, 1976 OF BENDEL STATE

SERVICE OF NOTICE IN BENDEL STATE: WHETHER SERVICE OF NOTICE UNDER FORMS 48 AND 49 (NOW FORMS 128 AND 129) IN BENDEL STATE FOR COMMITTAL PROCEEDINGS ARE MANDATORY

In the case of Joseph A. Ojeme & 1 Or. vs. H. H. Momodu II & 2 Ors. (1995) 6 NWLR (Pt. 403) 583 at 596 to 597, Ubaezonu, JCA, who read the judgment of the Court of Appeal (Benin Division) after considering the provisions of Order 42 rules 1 and 2 of the High Court (Civil Procedure) Rules Edict No. 10, 1988 of Bendel State, Section 63 of the Sheriffs and Civil Process Law, 1976, Cap 151 of Bendel State and Order 9 Rule 13(1) (2) of the Judgments (Enforcement) Rules of Bendel State, had this to say: “From the above, it is clear that two sets of rules (perhaps parallel rules) exist in Bendel State for committal proceedings. One set is provided for by the High Court (Civil Procedure) Rules, 1988 while the other is provided by the Sheriffs and Civil Process Law and the Judgments (Enforcement) Rules made thereunder. Which of the procedures will an applicant or the court adopt in a committal proceeding? This consideration would not have been necessary but for the fact that in the High Court (Civil Procedure) Rules no mention is made about serving a notice in Forms 48 and 49 (now Forms 128 and 129). All that an applicant need is to file a motion on notice to the party sought to be committed together with an affidavit stating the grounds of the application pursuant to Order 42 rule 2(1) and (2) of the High Court (Civil Procedure) Rule, 1988 of Bendel State. On the other hand, service of notice under Forms 128 and 129 (formerly Forms 48 and 49) is mandatory under the Sheriffs and Civil Process Law. I do not think that it is the intention of the Legislature to abrogate, without saying so in clear words, the Sheriffs and Civil Process Law and the Judgments (Enforcement) Rules dealing with committal for contempt. Moreover, the Edict No. 10 of 1998 of Bendel State is a general legislation making rules for court proceedings while the Sheriffs and Civil Process Law together with its Judgments (Enforcement) Rules 1977, also of Bendel State is a specific legislation, Order 9 Rule 13 of which deals specifically with committal proceedings.” Ubaezonu, J.C.A, continued thus: “In the case of Alh. Oyeyinka vs. Aliu Yesufu Osague (1994) 2 NWLR (Pt. 328) 617 particularly at 631 where a similar situation arose as to whether service of notice under Forms 48 and 49 (now Forms 128 and 129) was mandatory, I reviewed the law and came to the conclusion that despite the non mention of the notice in the said forms in the High Court (Civil Procedure) Rules, 1988 of Bendel State, it is mandatory that notice under Forms 48 and 49 (now 128 and 129) should be served as provided for by the Sheriffs and Civil Process and Judgments (Enforcement) Rules, 1976 of Bendel State. I have no reason to change my view. The principle of law as regards construction of statute is generalibus specialibus non derogant. In a committal for contempt proceeding a general provision of the law like Edict No. 10 of 1988 of Bendel State which makes provision for High Court Procedure cannot derogate from a special law or rules made specifically for committal proceeding. ……..” PER MOJEED ADEKUNLE OWOADE, J.C.A.

CONTEMPT PROCEEDINGS: STAGES THAT MUST BE COMPLIED WITH IN BRINGING AN ACTION FOR CONTEMPT PROCEEDINGS

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

1. RICHARD EMEJUO NWOSU
2. FRIDAY AGUWAMBA AGOMUO
3. JOSIAH ENWERE
4. ONUABUCHI EKWURIBE
(For themselves and as representing members of Umuokoro Family of Umoshi Village, Umuekwule Afugiri Umuahia in Umuahia North Local Government Area except the Defendant on record) Appellant(s)

AND

GABRIEL N. NZEADIBE Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of Honourable Justice S. A. Nwakanma, sitting at Abia State High Court, Umuahia Judicial Division delivered on 23rd November, 2001.
The appellants are the plaintiffs while the respondent is the defendant in the pending suit in the Court below. On 3rd May, 1999, on the application of the appellants, the Court below, presided over by Hon. Justice S.O.E. Nwanosike made an interim order restraining both parties from entering the land in dispute. On 26th July, 1999, the said Order of 3rd May, 1999 was re-affirmed by the said Hon. Justice S.O.E. Nwanosike restraining both parties “from entering into the land in dispute or dealing with same or the structure thereon-until the final determination of the suit”.
The appellants claimed that despite the said order of court, the respondent entered the land in dispute and continued with the building on the land in dispute. On 22nd February, 2000, on the application of the appellants, the Registrar of the court below issued Form 48 by endorsing same on the Order of 26th July, 1999. The Order with notice in Form 48 endorsed thereon was served on the respondent on 25th February 2000.
The appellants claimed that despite the service on the Order with Form 48 endorsed thereon, the respondent continued to disobey the said Order of Court. As a result, on the application of the appellants, Form 49 was issued by the Registrar of the Court below.
In addition to the service of Form 49, the appellants filed Notice of Motion in support of Form 49. The Notice of Motion with supporting affidavits together with the exhibits were duly filed and served.
In the court below, the respondent, through his counsel, took a preliminary objection, basing his objection on the ground that the contempt proceedings were not in compliance with Order IX Rule 13 of the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Law, Cap. 118, Laws of Eastern Nigeria, 1963, applicable in Abia State.
The said preliminary objection was argued, the appellants herein, through their counsel, argued that the application for the committal to prison of the respondent for disobeying the Order of the Court below was in strict compliance with the said Order IX Rule 13. The respondent submitted to the contrary before the court below.
On 23rd November, 2001 the learned trial Judge delivered her Ruling. In the Ruling, she upheld the preliminary objection and struck out the said application for committal of the respondent to prison on the ground that the application for committal was not in compliance with the provision of the said Order IX Rule 13 of the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Law, Cap 118, Laws of Eastern Nigeria, 1963, applicable in Abia State.
The Ruling of the lower court which upheld the preliminary objection of the respondent against the committal proceedings is contained in pages 42 – 50 of the record of appeal.
Therein, mere especially at pages 48 – 50, the learned trial Judge gave two reasons for holding in favour of the respondent.
First at page 48 that:
“That proof of service of Form 49 on the respondent is also dated 30/3/2000. This is clearly irregular as Form 49 was issued the same day as Form 48. It is anticipatory service of Form 49 which does not conform within the ambit of the provisions of Order 9 Rule 13(2) of the Judgment (Enforcement) Rules. There was no affidavit attached to Form 49.
The requirement for two clear days after service of Form 48 before Form 49 is issued and served is to satisfy the court that the respondent has clearly disobeyed the court’s order.  Even though Form 49 issued by the Registrar indicated inter alia.
“Take Notice that the plaintiff will on Thursday 6th day of April 2000 at the hour of 9 O’clock.”
This shows a duration of six days from the day it was issued to the day the matter would be heard, it still does not fall in line with the provisions of Order IX Rule 13(2) of the Judgments (Enforcement) Rules which clearly provides that at least 2 clear days should elapse after issuing Form 48 before Form 49 is issued.  On this score, the committal proceeding is incompetent ….”
Second at page 49, the learned trial Judge held that:
“As earlier stated Form 49 of the Application for committal of the respondent did not have an attached affidavit.
See the case of Kadiri  vs.  Kadiri (1990) 4 NWLR 665.  There are so many affidavits filed along with the Motion on Notice but there is none specifically attached to Form 49 which is the requirement of the Judgment (Enforcement) Rules. The affidavit that should have been so attached from my careful examination of the documents attached is the one attached to the motion on notice. The procedure requires an affidavit should be attached to Form 49 and this was not done. This is clearly irregular.”
Dissatisfied with the Ruling of the learned trial Judge, the appellants filed a Notice of Appeal containing only one (1) ground of appeal before this court on 5/12/01.
By leave of this Honourable Court, the appellants amended their notice of appeal by filing one additional ground of appeal on 14/9/04.  The appellants’ grounds of appeal as amended reads thus:
“GROUND 1
Error in Law
The learned trial Judge erred in law when she construed Rule 13(2) of Order IX of the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Law, Cap. 118, Laws of Eastern Nigeria, 1963, applicable in Abia State as requiring an affidavit to be attached to Form 49 in the First Schedule to the said Cap 118.
Particulars
(a) The said Rule 13(2) provides as follows:
“(2) If the judgment debtor fails to obey the order the Registrar on the 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.”
(b) There is no provision in Rule 13(2) reproduced above that an affidavit should be attached to Form 49.
(c) What the Registrar is required to do under Rule 13(2) aforesaid is to issue the notice in Form 49 not less than two clear days after service of the endorsed copy of the order (i.e. Form 48) and to serve same in like manner as a judgment summons, that is personal service.
(d) The learned trial Judge was therefore in error in reading into the said Rule 13(2) words not contained therein.

GROUND 2
Mixed Law and Fact
The learned trial Judge made a wrong and perverse finding of facts when she said that “Form 49 was issued the same day as Form 48″ and in consequence came to a wrong conclusion.
Particulars
(a) Form 48, endorsed on the order of injunction, was filed on 22nd February, 2000 and was served on the defendant/respondent on 25th February, 2000.
(b) Form 49 was issued on 30th March, 2000 and not on the same day as Form 48.”
Appellants’ Brief of Argument dated 27/4/04 was filed on 21/10/04 and deemed filed on 10/10/05.  Respondent’s Brief of Argument dated 10/9/05 was filed on 30/11/05.
The solitary issue nominated by the appellants for determination in this appeal is as follows:
“Whether the learned trial Judge was right in holding that the application for committal for contempt did not comply with the provisions of Order IX Rule 13 of the Judgments (Enforcement) Rules made pursuant to Sheriffs and Civil Process Law Cap 118, Laws of Eastern Nigeria, 1963, applicable in Abia State.”
The respondent adopted the sole issue nominated by the appellants for the determination of the appeal.
Learned senior counsel for the appellants submitted that the contempt proceedings initiated by the appellants, which proceedings were struck out, were in strict compliance with the provisions of Rule 13(1) and (2) of Order IX of the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Law Cap. 118, Laws of Eastern Nigeria 1963, applicable in Abia State.
Counsel submitted that the Order with Notice in Form 48 endorsed thereon was issued by the Registrar of the court below on 22nd February, 2000. And that the endorsed order was served on the respondent on 25th February, 2000.
Counsel submitted that the learned trial Judge was right when she observed at page 47 of the record that Form 48 was properly endorsed and served as required by the Judgments (Enforcement) Rules.
According to counsel, some days after the service of the order with notice in Form 48 endorsed thereon on the respondent, the registrar, on the application of the appellants issued a notice in Form 49 which notice was duly served on the respondent. Counsel submitted that the Notice in Form 49 was issued by the registrar of the court below on 30th March, 2000, more than 30 days after service on the respondent of the order with notice in Form 48 endorsed thereon.  But that in the face of the facts above stated, the learned trial Judge in her Ruling stated inter alia:
“The proof of service of Form 49 on the respondent is also dated 30/3/2000. This is clearly irregular as Form 48 was issued the same day as Form 49.”
Appellants’ counsel submitted that the portion of the Ruling reproduced above is not supported by the facts already set out herein. Still on this, counsel relied on the cases of Lucy Onowan & Anor.  vs.  J. J. I. Iserhien (1976) 1 NMLR 263, 265 and Chief Victor Woluchem & Ors.  vs.  Chief Simon Gudi & Ors. (1981) 5 SC 291, 326, also reported in (2004) 3 WRN 20, 51, and invited us to interfere with the Ruling of the learned trial Judge based on the perverse finding of fact.
Also, said counsel, in her Ruling the learned trial Judge stated as follows:
“As earlier stated Form 49 at the Application for Committal of the respondent did not have an attached affidavit.  See the case of Kadiri  vs.  Kadiri (1990) 4 NWLR 665. There are so many affidavits filed along with the Motion on Notice but there is none specifically attached to Form 49 which is the requirement of the Judgments (Enforcement) Rules. The affidavit that should have been attached from my careful examination of the documents attached is the one attached to the motion on notice. The procedure requires an affidavit should be attached to Form 49 and this was not done.  This is clearly irregular.”
On the above, appellants’ counsel submitted that the learned trial Judge was gravely in error in stating that the procedure requires that an affidavit should be attached to Form 49. Rule 13(2) of Order IX of the Judgments (Enforcement) Rules which deals with Form 49 does not provide that an affidavit is to be attached to Form 49. That it is not provided anywhere in the sub-rule that an affidavit should be attached to Form 49 which is to be issued by the registrar of the court below. And, that the learned trial Judge read into the sub-rule words which are not there.
Counsel submitted further, that the case of Kadiri  vs.  Kadiri (supra) cited by the learned trial Judge did not decide that in issuing Form 49 (which is issued by the registrar of the trial High Court) an affidavit has to be attached to it.
Counsel said the facts in the case reported as Yesufu Aliu Kadiri  vs.  Alh. Zakari Kadiri (1990) 5 NWLR (Pt. 153) 665 were different from the facts of the case now on appeal.  That, in Kadiri  vs.  Kadiri (supra):
(i) The committal proceeding proceeded to hearing;
(ii) As regards Form 48 in that case what was served on the judgment debtor was just Form 48 and not the Order with the notice in Form 48 endorsed thereon;
(iii) As regards Form 49 the judgment debtor denied that it was served on him, and so it became the judgment creditor’s word against that of the judgment debtor;
(iv) The Court of Appeal in that case held that the Judge at the court of first instance ought not to have acted on the affidavit of the judgment creditor without resolving the conflicting affidavits.
The Court of Appeal (per  Ejiwunmi, J.C.A, as he then was) stated that the bailiff who was said to have served the controversial Form 49 ought to have been called to give oral evidence.
The case, said counsel dealt with the issue whether or not Form 49 was served on the judgment debtor.  It did not say that an affidavit has to be attached to Form 49 when it is issued.
Appellants’ counsel referred to the Supreme Court decision in Yekinni Abbas & Ors.  vs.  Olatunji Solomon & Ors. (2001) 36 WRN 73 at 88 where the Supreme Court explained the procedure to be followed in an application for the committal of a litigant who has disobeyed the order of court. Counsel submitted that the Supreme Court in that case did not say that an affidavit has to be attached to Form 49 when it is issued by the registrar of the trial court.        Counsel submitted that the procedure followed by the appellants herein are in strict compliance with the provisions of Rule 13(1) and (2) of Order IX of the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Law, Cap. 118, Laws of Eastern Nigeria, 1963 as applicable in Abia State of Nigeria and in line with the explanation given by the Supreme Court in Yekinni Abbas & Ors.  vs. Olatunji Solomon & Ors. (supra).
Counsel, then submitted that the learned trial Judge was not justified in striking out the appellants’ application for the committal of the respondent.
In any case, said counsel, the appellants in addition to the Form 49 issued by the registrar of the court below and served on the respondent filed a Motion on Notice supported by affidavits to which documents were exhibited.  And, that, if the application had proceeded to hearing, the learned trial Judge would have found the affidavits helpful.
Finally, appellants’ counsel submitted that the learned trial Judge was wrong in striking out the application by the appellants for the respondent to be committed to prison for disobeying the order of the court below, without allowing the application to be determined on the merits. He urged us to resolve the solitary issue in favour of the appellants and order that the contempt proceedings be determined on the merits to ensure that justice is done.
In response, learned counsel to the respondent admitted that the service of Form 48 is not contentious. But that the problem started with Form 49.
In summary, the first and main ground of the respondent’s objection to the service of appellants Form 49 is that “the affidavit of service on page 5 of the Record of Appeal did not indicate that Form 49 and affidavit were served on the respondent”. On this score, learned counsel for the respondent submitted that it is clear from the provision of Order IX Rule 13 (2) that an affidavit must be annexed to Form 49 when filed. That, it is on the averments of the applicants on the annexed affidavit that the court should be satisfied that the judgment debtor has failed to obey the Order.
Respondent’s counsel referred to the following authorities to justify the submission that an affidavit is to accompany Form 49. They are: Fabian Uzoejo & Ors  vs.  Friday Kano & Anor. (1974) 4 ELSLR Page 123 at 124, Esubi & 1 Or.  vs.  Somefun (1979) 2 LRN p. 297, Omopena vs.  Adelaja 19 NLR 71 and Kadiri  vs.  Kadiri (1990) 5 NWLR (Pt. 153) p. 665.
Respondent’s counsel submitted further that as appellant’s Form 49 was signed by the registrar of the court below in compliance with Order 9 rule 23 of the Judgment (Enforcement) Rules, the Motion on Notice filed on 30/3/2000 is anomalous and superfluous.
This according to counsel, is because the order did not state that after filing Form 49 another separate Motion on Notice should be filed and served on the respondent on the same issue. He urged the court to dismiss the appeal.
The sole issue raised by the appellants in this appeal contained two sub-issues. The first which is not contested in the respondent’s brief is the error of fact made by the learned trial Judge which led to the perverse finding at page 48 of this record that:
“The proof of service of Form 49 on the respondent is also dated 30/3/2000. This is clearly irregular as Form 49 was issued on the same day as Form 48. It is anticipatory service of Form 49 which does not conform within the ambit of the provisions of Order 9 Rule 13 (2) of the Judgments (Enforcement) Rules ……”
Indeed, from the record of appeal and as pointed out by the learned senior counsel to the respondents, Form 48 endorsed on the Order of Injunction was filed on 22nd February, 2000 and was served on the respondent on 25th February, 2000. Form 49 on the other hand was issued on 30th March, 2000 and not on the same day as Form 48.
As a matter of fact, the Notice in Form 49 was issued by the registrar of the court below on 30th March, 2000 more than 30 days after service on the respondent of the Order with notice in Form 48 endorsed thereon.
In these circumstance, the learned trial Judge clearly made a wrong and perverse findings of facts, which cannot be allowed to stand as against the appellants when she said that “Form 49 was issued the same day as Form 48”.
The more important aspect of this appeal, is the contention as to whether or not the provision of Order IX Rule 13 of the Judgments (Enforcement) Rules, made pursuant to Sheriffs and Civil Process Law requires than an affidavit must accompany the service of form 49.
In my humble opinion and without much ado the answer to the above question is in the negative. For ease of reference the said Rule 13(1) and (2) are set out hereunder:
“13 (1) When an Order enforceable by committal under Section 71 of the law has been made the registrar, 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 shall be served on the judgment debtor in like manner as a judgment summons.
(2) If the judgment debtor fails to obey the Order the registrar on the 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.”

It is clear from the plain and unambiguous provision of Rules 13 (2) above that there is no requirement of an affidavit to support or accompany  the service of Form 49. Indeed, after a successful service of form 48 issued by the registrar, all that is required in the service of Form 49, also to be issued by the registrar is for the conditions that were fulfilled in the service of Form 48 to be also fulfilled in the service of Form 49.  These conditions are: (i) the need to endorse or reproduce a copy of the original order also on the said Form 49. (ii) Personal service as in the case of judgment summons.
The above requirements of the law derive from the need to give the defendant the opportunity to obey or retrace his steps in the matter of the disobedience of a court order. In Ojeme  vs.  Momodu II (1995) 6 NWLR (Pt. 403) 583 at 597, Ubaezonu, JCA, stated the rationale thus:
“The Sheriffs and Civil Process Law and the Judgments (Enforcement) Rules are made in such a way as to ensure that a person being deprived of his liberty in respect of an order of judgment made in a civil litigation deliberately intended to flout the order of the court. Furthermore, the law and its rules are made to ensure that, that person is given an opportunity to retrace his steps by service on him of Forms 48 and 49.  If he remains recalcitrant, then the court will descend on him and commit him to prison.  ……
I do not think that the law of this country regarding the freedom of individual has descended to such abysmal debt of ‘rough and ready justice of medieval era that a person shall be thrown into prison for contempt without giving him an opportunity to retrace his steps …….”
In coming to the conclusion that the service of Form 49 must be accompanied by an affidavit the learned trial Judge relied on the decision of the Court of Appeal in Kadiri  vs.  Kadiri (supra). Unfortunately, neither the case of Kadiri  vs. Kadiri (supra) nor the numerous other authorities cited by the learned counsel to the respondent in support of that proposition ever decided that Form 49 must be accompanied by an affidavit. As pointed out by the learned senior counsel to appellants in the case of Yesufu Aliu Kadiri  vs.  Alh. Zakari Kadiri (supra) unlike the instant case, the High Court actually heard and received affidavit evidence on the contempt proceedings. In the Kadiri’s case, one of the salient arguments that arose on appeal is that there was no affidavit of service to show that Form 49 was actually served on the respondent. Paragraph 13 of the respondent’s affidavit in the Kadiri’s case sworn to on the 19th day of November, 1986 merely said:
“That Form 49 was also served personally on the respondents after two clear days upon service of Form 48.”
In these circumstances, Ejiwunmi, J.C.A, who read the lead judgment of the Court of Appeal (Benin Division) in the case of Kadiri  vs.  Kadiri (supra) held at pages 675 – 676 of the Weekly Law Report as follows:
“It is pertinent to observe that the appellant did not admit that he was so served with Form 49, in any of the counter-affidavits which he swore to as disclosed in the printed record. And it being the duty of the respondent to establish the fact that he was so served, the mere deposition of the respondent cannot in my view be said to be sufficient service.  Had the respondent called the Bailiff who served the appellant with the said Form 49, to show that the appellant was served as deposed to in the affidavit sworn to by the respondent, perhaps it might then be said that the respondent duly proved that the appellant was served as required by Order 9 Rule 13 of the Sheriffs and Civil Process Law.   ……..”
It is this restatement of the elementary principle of proof of personal service of Forms 48 and 49 in contempt proceedings that attracted the concurring opinions of Omo, JCA, and Salami, JCA, (as he then was) in the case of Kadiri  vs.  Kadiri (supra).
Perhaps the opinion of the Court of Appeal on the subject matter in the case of Kadiri  vs.  Kadiri (supra) is made clearer in the supporting judgment of Salami, JCA, in the Kadiri’s case. He said at pages 677 – 678.
“Neither the bailiff who purportedly effected the service nor “the Registrar of this Honourable Court” to whom the bailiff apparently reported deposed to affidavit of service. The deponent, the respondent in the instant case, deposed to the affidavit on the strength of information he gathered from a third party, the registrar and not the bailiff who allegedly effected the service. The Registrar’s source of information has not been authenticated. The evidence in support of the service of Form 48 is, therefore, suspect. The same goes for the service of Form 49. In the result, it has not been established that there have been strict compliance with the provisions of Order 9 Rule 13 of the Sheriffs and Civil Process Law.”
In the instant case, unlike the case of Kadiri  vs.  Kadiri (supra), there was no issue as to the service of Form 49 on the respondent. As a matter of fact, the Affidavit of Service, Form C27 sworn to by Godwin Agbanyim Snr. Bailiff on 5th April, 2000 for the service of Form 49 on the respondent is contained in page 5 of the record of appeal in this case.
In the instant case, with respect, it would seem that there was a mix up in the mind of the learned counsel for the respondent and perhaps also the learned trial Judge in terms of a Bailiff’s affidavit of service which became an issue in the Kadiri’s case or affidavit in support of the motion on notice required to secure the committal proceedings by imagining yet another ‘affidavit’ which the law does not require to accompany the service of Form 49.
I, therefore, repeat that the service of Form 49 does not require an accompany affidavit as held by the learned trial Judge.
In any event, putting the matter in another perspective, what would be the relevance of an affidavit to accompany the service of Form 49 when all the ingredients of the order of court and the endorsement as to continued disobedience of the court order is contained in the said Form 49 itself?
If the purpose is to show that the judgment debtor has been served, that purpose would have been adequately fulfilled not only by the Bailiff’s affidavit of service as in Form C27 but also by the affidavit(s) in support of the motion on notice which would demonstrate facts antecedents and/or contemporaneous to the committal proceedings.
The learned counsel for the respondent also referred amongst other to the case of Omopena  vs.  Adelaja 19 NLR page 71 as authority for the proposition that an affidavit must accompany the service of Form 49. With respect to learned counsel, the case decides no such things. The case of Omopena  vs.  Adelaja (supra) was a judgment of Johnson J. in the old Supreme Court.
In that case, the judgment creditor applied by motion on notice for enforcement by committal of the order made in the judgment to abstain from doing a certain act, without having served an endorsed copy of the order and notices as required by Rule 13 in Order 9 of the Judgments (Enforcement) Rules in regard to committal under section 71 of the Sheriffs and Enforcement of Judgments and Orders Ordinance.  The respondent objected on the ground that the requisite procedure had not been followed. The court held that the motion for committal was bad in law owing to non-compliance with the procedure required by Rule 13 in Order 9 of the Judgments (Enforcement) Rules for enforcing a judgment granting an injunction by committal under section 71 of the Sheriffs and Enforcement of Judgments and Orders Ordinance.
In the instant case, unlike the cases of Kadiri  vs.  Kadiri (supra) and Omopena  vs.  Adelaja (supra), the appellants not only served Forms 48 and 49 properly but in addition filed and served on the respondent a motion on notice supported by affidavits to which documents were exhibited.
In this respect, the submission of the learned counsel to the respondent that the motion on notice filed by the appellants is anomalous and superfluous not being a requirement of Rule 13 of Order 9 of the Judgments (Enforcement) Rules equally does not represent the position of the law.
The now settled position of the law is that two sets of rules are now generally applicable in committal proceedings, the Sheriffs and Civil Process Law and the Judgments (Enforcement) Procedure Rules made thereunder to govern mere especially the service of the notices in Forms 48 and 49 and the High Court (Civil Procedure) Rules to govern the motion which moves the court in the committal proceedings.

In the case of Joseph A. Ojeme & 1 Or.  vs. H. H. Momodu II & 2 Ors. (1995) 6 NWLR (Pt. 403) 583 at 596 to 597, Ubaezonu, JCA, who read the judgment of the Court of Appeal (Benin Division) after considering the provisions of Order 42 rules 1 and 2 of the High Court (Civil Procedure) Rules Edict No. 10, 1988 of Bendel State, Section 63 of the Sheriffs and Civil Process Law, 1976, Cap 151 of Bendel State and Order 9 Rule 13(1) (2) of the Judgments (Enforcement) Rules of Bendel State, had this to say:
“From the above, it is clear that two sets of rules (perhaps parallel rules) exist in Bendel State for committal proceedings. One set is provided for by the High Court (Civil Procedure) Rules, 1988 while the other is provided by the Sheriffs and Civil Process Law and the Judgments (Enforcement) Rules made thereunder.
Which of the procedures will an applicant or the court adopt in a committal proceeding? This consideration would not have been necessary but for the fact that in the High Court (Civil Procedure) Rules no mention is made about serving a notice in Forms 48 and 49 (now Forms 128 and 129). All that an applicant need is to file a motion on notice to the party sought to be committed together with an affidavit stating the grounds of the application pursuant to Order 42 rule 2(1) and (2) of the High Court (Civil Procedure) Rule, 1988 of Bendel State. On the other hand, service of notice under Forms 128 and 129 (formerly Forms 48 and 49) is mandatory under the Sheriffs and Civil Process Law.
I do not think that it is the intention of the Legislature to abrogate, without saying so in clear words, the Sheriffs and Civil Process Law and the Judgments (Enforcement) Rules dealing with committal for contempt.  Moreover, the Edict No. 10 of 1998 of Bendel State is a general legislation making rules for court proceedings while the Sheriffs and Civil Process Law together with its Judgments (Enforcement) Rules 1977, also of Bendel State is a specific legislation, Order 9 Rule 13 of which deals specifically with committal proceedings.”
Ubaezonu, J.C.A, continued thus:
“In the case of Alh. Oyeyinka  vs.  Aliu Yesufu Osague (1994) 2 NWLR (Pt. 328) 617 particularly at 631 where a similar situation arose as to whether service of notice under Forms 48 and 49 (now Forms 128 and 129) was mandatory, I reviewed the law and came to the conclusion that despite the non mention of the notice in the said forms in the High Court (Civil Procedure) Rules, 1988 of Bendel State, it is mandatory that notice under Forms 48 and 49 (now 128 and 129) should be served as provided for by the Sheriffs and Civil Process and Judgments (Enforcement) Rules, 1976 of Bendel State.  I have no reason to change my view.  The principle of law as regards construction of statute is generalibus specialibus non derogant. In a committal for contempt proceeding a general provision of the law like Edict No. 10 of 1988 of Bendel State which makes provision for High Court Procedure cannot derogate from a special law or rules made specifically for committal proceeding. ……..”

Generally speaking therefore, a recapitulation of the applicable rules of court as regards contempt proceedings would lead us into four (4) important stages as follows:
Stage I
The first thing to do is the endorsement of the order of court word to word on Form 48.  See e.g., the cases of Enabinive  vs.  Atambo (1967) NMLR 253 (per Obaseki J., as he then was) and Ojeme  vs.  Momodu II (supra).
Stage II
The next duty of a person who wants to enforce Order is to ensure that Form 48 endorsed with the court Order is formally served on the defendant personally, preferably by the Bailiff who must file a copy of the proof of service.  See e.g. Chief John Ikimi  vs.  Godwin Omamuli (1995) 3 NWLR (Pt. 383) 355 at 358 – 360.
Stage III
If on the service of Form 48 the contemnor still refuses to comply with the court Order, the applicant can after 2 days of service of Form 48 apply to the Registrar for Form 49 to issue on the contemnor.  The conditions stated earlier in relation to the service of Form 48 also apply to service of Form 49.  See e.g.  Chief Darly Akpo  vs.  Chief Effiong Akpan (1996) 7 NWLR (Pt. 462) 620.
Stage IV
After the service of Form 49 the judgment creditor will then approach the court by a Motion on Notice for committal supported by affidavit brought under Sheriffs and Civil Process Law, the Judgments (Enforcement) Rules made thereunder and under the like provisions of Order 42 rule 1 (2) of the Uniform procedure Rules, 1988.
In the instant case, the Judgment creditor/appellants painstakingly went through the above mentioned stages, the learned trial Judge was therefore wrong to have struck out the appellants application for committal on the ground that the Form 49 was not accompanied by affidavit and that there was no compliance with the provisions of Order IX Rule 13 of the Judgments (Enforcement) Rules made pursuant to Sheriffs and Civil Process Law.
The two sub-issues in this appeal making up the solitary issue for determination are accordingly resolved in favour of the appellants. It is pertinent to observe at this juncture that while it is true that contempt proceedings are quasi-criminal and the attitude of the law is generally to protect jealously the liberty of the individual leading to strict observance or compliance with committal procedures, the courts must also not shy away from exercising the power of committal when the conditions stipulated by the rules have been fulfilled.

The first consideration in my above statement is supported in the remarks of Lord Greene M.R. in the case of Gordon vs. Gordon (1946) All E. R. 247 at 250 that:
“Attachment and committal are very technical matters, and as Orders for committal or attachment affect the liberty of the subject such rules as exist in relation to them must be strictly obeyed.  However disobedient the party against whom the Order is directed may be, unless the process of committal and attachment has been carried out strictly in accordance with the rules he is entitled to his freedom.”
The second consideration in my statement finds support in the judgment of the Supreme Court  (per Nnaemeka Agu, JSC) in the case of Louis B. Ezekiel Hart  vs.  Chief George I. Ezekiel Hart. (1990) 1 NWLR (Pt. 126) 276 at 279.
“…..Obedience to Orders of Court is fundamental to the good Order, peace and stability of the Nigeria nation.  The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, machetes, and guns or, now even more sophisticated weapons of war.  Disobedience to an Order of Court should, therefore, be seen as an offence directed not against the personality of the Judge who made the Order, but as a calculated act of subversion of peace, law and order in the Nigerian society.  Obedience to every Order of Court is therefore a duty which every citizen who believed in peace and stability of the Nigerian State owes the nation.”
In the instant case, the appellants had fulfilled all the conditions precedent and/or necessary for the hearing of their motion on notice for committal against the respondent, the learned trial Judge was therefore in error to have struck out the appellants’ motion for non-compliance.  The appeal is meritorious and it is allowed.  The Judgment of S. A. Nwakanma, J., in Suit No. HU/1/98 delivered at the Umuahia Judicial Division of the High Court of Abia State on 23rd November, 2001 is hereby set aside.
The contempt proceedings in Suit No. HU/1/98 is accordingly remitted to the Honourable, the Chief Judge of Abia State to be tried on merit before another Judge of the High Court of Abia State otherwise than the Honourable Justice S. A. Nwakanma.
N5,000 costs of this appeal is awarded in favour of the appellants.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A. and I am in complete agreement with his reasoning and conclusions. I will add a few words.
The issue for determination here is whether or not an affidavit must accompany the service of form 49. There is no doubt that judgment enforcement proceedings are quasi-criminal in nature and the court ought to be certain that a judgment debtor has indeed failed to obey court order, has been given the opportunity to retrace his steps and is recalcitrant before committal proceedings are initiated against him. The law and precedents require strict adherence to the initiating procedural rules because of the quasi-criminal nature of the proceedings.
However, where a party has adhered strictly to all the conditions precedent for the institution of committal proceedings as in this case, unrecognized provisions should not be introduced to prevent the execution of justice.
Clearly Order IX r 13 (2) of the Judgment Enforcement Rules made pursuant to the Sheriff and Civil Process Law applicable to Abia State does not require that an affidavit must accompany the service of Form 49. All that Form 49 requires is that the order of court shall be endorsed word for word on it, and served personally on the contemnor. The Bailiff shall thereafter file an affidavit confirming personal service of Form 49 on the contemnor. I agree that the learned trial judge was in error that there was a requirement that an affidavit should be attached to and be served with Form 49. The law only contemplates an affidavit from the Bailiff after service.
I agree that the appeal be allowed and the judgment of the lower court be set aside. I abide by all consequential orders.

Appearances

J. N. Kanu, Esq,For Appellant

AND

C. A. Kalunta, Esq.For Respondent