SUNDAY APE v. DISU OLOMO (2010)

SUNDAY APE v. DISU OLOMO

(2010)LCN/4116(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of December, 2010

CA/IL/25/2009

RATIO

COMMITTAL OF PROCEEDINGS: ESSENCE FOR THE PROPER PROCEDURE TO BE FOLLOWED IN A COMMITTAL PROCEEDINGS

The law is now settled. In the case of OYEYINKA V. OSAGUE (1994) 2 NWLR (pt.328) 617 at 631 Ubaezonu, J.C.A, (as he then was) made the necessity of the proper procedure to be followed in a committal proceedings clear when he held thus: “The Sheriffs and Civil Process Law and the his liberty in respect of an order or 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. The price placed on human liberty by our law should grow rather than diminish with time. I do not think that the law of this country regarding the freedom of individuals has descended to such abysmal depth of rough and ready Justice of medieval era that a person shall be thrown into prison for contempt ex facie curia without giving him an opportunity to retrace his steps. It is therefore my firm view that in a committal proceeding the two laws shall be married together by observing the provisions of section 63 of the Sheriff and Civil Process law and complying with requirements of order 9 rule 13 of the Judgment Rules. It is after that, that an application under order 42 of the 1988 Edict shall be made to the court. Failure to comply with the aforementioned procedure makes the committal proceedings patently defective, and any order made thereon a nullity.” This was similarly observed in OJEME & OTHERS V. MOMODU III (1995) (SUPRA) AT 597 and so in the following cases HIGH CHIEF KINGSTON EBI DONNIE & OTHERS V. SAMUEL MOSES OYINGBO GOLD (1996) 8 NWLR (PT.465) 230, CHIEF TOM IKIMI v. GODWIN OMAMULI (1995) 3 NWLR (PT.387) P.335 and THE MILITARY GOVERNOR OF KWARA STATE V. RUFUS AFOLABI (1991) 6 NWLR (PT.196) 212. Non issuance and service of form 48 on the appellant is fatal and renders the respondent’s application and void. PER CHIDI NWAOMA UWA, J.C.A.

ISSUE OF JURISDICTION: WHETHER ONCE THE ISSUE OF JURISDICTION IS RAISED, IT MUST BE RESOLVED FIRST

In my earlier decision in AMADASUN v. UME (2007) 13 NWLR PAGE 214 at P.230-231, PARAGRAPHS H-A, I did hold the view, concerning the court’s duty to determine first the issue of jurisdiction where raised, before proceeding on any adjudication if need be, thus: “It is trite, that once the issue of jurisdiction is raised, it must be resolved; otherwise any final decision would be an exercise in futility, no matter how well reasoned and conducted. A Court: must be competent i.e. have jurisdiction before it can proceed on any adjudication. MADUKOLU V. NKEMDILIM (1962) 2 SCNLR PAGE 341, OLORIODE V. OYEBI (1984) 1 SCNLR 390, SALEH V. MONGUNO (2003) 1 NWLR (PT.801) PAGE 221. PER CHIDI NWAOMA UWA, J.C.A.

JURISDICTION: REQUIREMENTS THAT MUST BE SATISFIED FOR A COURT TO ASSUME JURISDICTION OVER A MATTER

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 72 OF THE SHERIFFS AND CIVIL PROCESS ACT AND ORDER IX RULE 13(1)AND(2)OF THE JUDGMENT (ENFORCEMENT) RULES AS TO WHETHER IT IS NECESSARY FOR COURT TO ISSUE FORMS 48 AND 49 BEFORE IT CAN PROCEED AGAINST A CONTEMNOR IN A CONTEMPT PROCEEDINGS

It was rightly argued by the learned Appellant’s counsel that on the face of the Respondent’s application, it was not brought pursuant to any rules of court and from the court’s records none was relied upon in, moving the application before the trial court. The trial court therefore ought to have had recourse to the applicable law on enforcement of judgments and the Rules made there under, that is, section 72 of the sheriffs and civil Process Act and Order IX Rule 13(1)and(2)of the Judgment (Enforcement) Rules. section 72 of the sheriffs and civil Process Act provides as follows: “72. If any person refuses or neglects 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 the misconduct defined in paragraph (f) of Section 66 of this Act, 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 than until he has been imprisoned for such time or until he has paid such fine as the court directs.” While order 42 Rule 2(1), (2) and Rule 4(3) of the Ondo State High Court (Civil procedure) Rules as applicable in Ekiti State, headed: COMMITTAL FOR CONTEMPT OF COURT provides as follows: “2.(1)An application for an order of committal shall be -made to the Court by motion on notice supported by an affidavit, and shall state the grounds of the application. (2) The Notice of Motion, affidavit and grounds shall 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 so demands.” 4(3) Except with the leave of the court hearing an application for an order or committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under Rule 2.” Order IX Rule 13(1) and (2) of the Judgment (Enforcement) Rules provide as follows- “13(1)- When an order enforceable by committal under Section 72 of the Act has been made the registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods-without the option of paying their value or 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.” Section 72 and Order IX Rule 13(1) and (2) above made the issuance of Forms 48 and 49 mandatory before one can proceed against a contemnor in a contempt proceedings. In an application for committal it is imperative that the prescribed steps have to be followed. Order IX Rule 13 provides that an order enforceable by committal under Section 72 has been made, the registrar shall issue a copy of the endorsed Notice in Form 48. The procedure insists on the endorsement of the order on Form 48 which contains the penalty for disobedience or failure to obey the order. This is so, to give the defendant the opportunity to obey or retrace his steps. In the present case from the records, there is nothing to show that the Respondent was issued and served the notice of consequences of disobedience to the order complained of on the Appellant. PER CHIDI NWAOMA UWA, J.C.A.

COMMITTAL PROCEEDINGS: THE ESSENCE OF THE REQUIREMENT TO SERVE FORM 48 ON THE CONTEMNOR

In the case of OJEME V MOMODU III (1995) 6 NWLR (PT.403) PAGE 583 AT 597, Ubazeonu J.C.A. (as he then was) had this to say regarding committal proceedings without the endorsement of the order on Form 48. He said:- “I did not think the law of this country regarding freedom of individual has descended to such abysmal depth 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.” The essence of the requirement to serve Form 48 on the contemnor is to give him a choice to comply with the order of court; the applicant after 48 hours of service of Form 48 applies to the Registrar for Form 49 to issue on the contemnor. The Notice originates the process of committal as provided by Order 9 Rule 13 of the Sheriffs and Civil Process Judgment (Enforcement) Rules. PER CHIDI NWAOMA UWA, J.C.A.

COMMITTAL PROCEEDINGS: CONSEQUENCE OF MERELY FILING A MOTION ON NOTICE TO COMMIT WITHOUT SERVING FORMS 48 AND 49 ON THE CONTEMNOR IN COMMITTAL PROCEEDINGS

It is the law that merely filing a motion on Notice to commit as was done in the present case without serving Forms 48 and 49 on the Appellant is defective and rendered the application null and void and of no effect. PER CHIDI NWAOMA UWA, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria

Between

SUNDAY APE Appellant(s)

AND

DISU OLOMO Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivered the Leading Judgment): This appeal is against the Ruling of the High Court sitting at Ado-Ekiti, Ekiti State delivered by C. I. Akintayo, J. on the 10th day of August, 2007.
The Respondent herein was the Plaintiff in the trial court vide a writ of summons filed in 2004 in Suit No, HAD/3/2004 in which the claims against the Appellant as Defendant was for an order of perpetual injunction restraining the Defendant from encroaching into a parcel of land lying at  Oke-Efon Iworoko Road, Ado-Ekiti.
The Appellant as Defendant counter claimed against the plaintiff and sought for an order of perpetual injunction in respect of the said parcel of land.
The parties each filed an application for an order of interlocutory injunction restraining each other, agents, assigns or privies from entering or doing anything on the land in dispute pending the determination of the substantive matter. In the Ruling delivered on the 2nd day of December, 2004, his Lordship A. S. Daramola, J. who heard the application restrained both parties, their agents, assigns or privies from further entering or doing anything on the land pending the determination of the substantive suit. :
The Respondent thereafter on 16th day of August, 2006 filed an application to show cause why the order of committal should not be made against the Appellant. In a similar application the Appellant commenced a contempt proceeding against the Respondent.
The Appellant in response to the Respondent’s application fifed a counter affidavit, further affidavit and better affidavit and additional further: affidavit against his committal for contempt. His Lordship, C. I. Akintayo, J. who subsequently heard the Respondent’s application held thus: “The Appellant has breached the order of the Court by selling part of the land to some individuals after the court order and encouraged them to continue development of such plot of land the disputed land. He is hereby found guilty of contempt of court’! (Pages 105-113) of the printed records) the Appellant was convicted accordingly, which gave rise to this appeal.
It was the contention of the Respondent that following his application for contempt against the Appellant filed on 16/3/06, hinged on the fact that since the restraint order against both parties not to enter the land in dispute, that the Appellant, his agents, servants and privies disobeyed the said order by selling portions of the disputed land to one I. D. Ehinafe, while the younger brother of the Appellant’s one Omolayo Ape also commenced building on the land.
On the part of the Appellant, he denied the depositions in the Respondent’s affidavit in support of the application for committal while the Appellant also denied breaching the order of injunction inspite of which he was committed for contempt and sentenced to a fine of N10,000.00 or one month imprisonment on 10/8/07 by the trial court, page 108 of the records.
The Appellant appealed against the above order and filed his Notice of Appeal dated and filed on 10/9/07 pursuant to the leave of the trial court of 4/9/07, containing ten (10) grounds of appeal from which three (3) issues were distilled for determination by this court. They are:-
“(1) Whether the trial court is possessed with requisite jurisdiction and or vires to entertain the Respondent’s matter having regard to the procedure by which the case was initiated. (Grounds 4, 5, 7, 8, 9 and 10).
(2) Whether the learned trial judge was right by his findings that the Appellant is guilty of contempt. (Grounds 1, 2,3, 5 and 5).
(3) Whether by the affidavit evidence and exhibits placed before the trial court the Respondent proved his case beyond reasonable doubt.” (Grounds 1, 21 31 5 and 6).”
When this appeal carne up for hearing on 4/10/10, from the Court’s records, the Respondent who had been served against the hearing, on 28/9/10 failed to appear in court and was not represented by counsel. The Appellant’s brief of argument prepared by A. T. Lawal Esq. dated 25th day of May, 2009, was deemed as property filed and served on 30/6/10, on application. On the same date, this court on a different application set down the appeal for hearing, the Respondent having failed to file any brief more than a year after being served with the Appellant’s brief of argument. This appeal was therefore heard based on the Appellant’s brief of argument alone.
The learned Appellant’s counsel adopted and relied on his brief of argument, in arguing his first issue referred to the relief sought by the Respondent in his motion on Notice filed on 16/8/2006, page 22 of the records. It was argued that the Respondent in bringing his application for committal for contempt failed and neglected to file the Notice of consequence of disobedience to the order of court on the Appellant before filing his application for committal for contempt contrary to the provisions of the Sheriff and Civil Process Act and Order 42 Rule 2(1), (2) and Rule 4(3) of the Ondo State Rules of the High Court, also failed to state the ground(s) relied on for bringing the application for committal and failed to attach a copy of the order disobeyed to his application for committal.
It was submitted that non issuance of form 48 and non service of same on the Appellant rendered the Respondent’s application null and void and of no effect. The following cases were cited and relied upon: BEST WESTERN COMPANY LTD. AND OTHERS V. SABBATH WILSON UDOMISOR AND ANOTHER (2001) 35 WRN 153 AT PAGE 168 LINES 35 – 40, BEN OBI NWABUEZE AND ANOTHER V. JUSTICE OBI OKAFE (2992) 10 WRN 123 AT PAGE 155 LINES 15-40. ALSO YEKINNI A. ABBAS ANDOTHERS V. OLATUNJI SOLOMON AND OTHERS (2001) 36 WRN 73 AT PAGES 88-90 LINES 40-40.
It was argued that the application was not brought pursuant to any rules of court and none was relied upon in moving the application, therefore that the respondent ought to have resorted to the applicable law on enforcement of judgment, that is SECTION 72 OF THE SHERIFFS AND CIVIL PROCESS ACT ORDER IX RULE 13(1) AND (2) OF THE JUDGMENT (ENFORCEMENT) RULES, which made the issuance of Forms 48 and 49 mandatory, before one can proceed against a contemnor in a contempt proceedings.
It was further submitted that the process through which the Respondent commenced his application for contempt is wrong and contrary to the procedure as laid down in Order 42 Rule 1 of the Ondo State Rules of the High Court as applicable in Ekiti State which requires a trial to be conducted to ascertain the veracity or otherwise of the allegation, in this case against the Respondent. The following cases were cited and relied upon:- DREXEL ENERGY AND NATURAL RESOURCES LTD. AND OTHERS V. TRANS INTERNATIONAL BANK LTD AND OTHERS (2009) 15 WRN 1 AT PAGE 32 LINES 5 – 10, PAGE 46 -47, LINES 40-45, OKONOFUA V. VICENT OMOIJAHE V. UWESU UMORU AND OTHERS (1999) 5 SCNJ 200 AT PAGES 288 – 289, PARAGRAPHS 25  – 10. It was argued that the failure to file the required Notice prior to the application for an order committing the Appellant for contempt rendered the entire process null and void. The trial court lacked the competency to look into the Respondent’s application not having commenced same as provided by the Sheriffs and Civil Process Act which requires the Service of Forms 48 and 49 on the Appellant. The following cases amongst others were cited and relied upon by learned counsel:- OBA YEKINI ELEGUSHI AND OTHERS V. MUFU LAMINA AND OTHERS (2009) 10 WRN 127 PARTICULAR AT PAGE 145 LINE 20, THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. ABEL ISAIAH AND OTHERS (2005) 44 WRN 65 AT 83 LINES 25 – 45, SENATOR RASHIDI ADEWOLU LADOJA V.  INDEPENDENT NATIONAL ELECTORAL COMMISSION AND OTHERS (2007) 40 WRN PAGES 37 – 38, LINES 25 – 40
It was the contention of the learned counsel to the Appellant that the trial court failed to consider the Appellant’s deposition and argument on the issue of incompetency of the Respondent’s application for committal, for  contempt, see GROUP CAPTAIN E.E. IBOK V. H.R.H. ETUBOM EYO E. EYO HONESTY II (2007) 19 WRN 105, PAGES 114 – 115, it was also argued that the filing of two applications for committal ,for contempt of the Appellant at the same time by the Respondent is an abuse of court process, and that the trial court ought to have dismissed same. The case of DUMEZ NIGERIA PLC V. UBA PLC (2007) 19 WRN 123, PAGE 13, LINES 15 – 25 was also relied upon where it was held that where a  court is satisfied that any proceedings before it is an abuse of process, it has the power and duty to dismiss it. It was submitted that the application that led to the committal of the Appellant ought to have been dismissed by the trial court, or in the alternative struck out, the application being: a nullity, see MR. P.J. EFFIONG AND OTHERS V. DR. INIH A. EBONG (2007) 28 WRN 71, PAGE 93 – 94, LINES 40-20.
We were urged to resolve this issue in favour of the Appellant and to hold that the case of the Respondent is an abuse of court’s process in which the trial court lacks the jurisdiction to inquire in to.
The Appellant’s issues two and three were argued together. With reference to the affidavit in support of the Respondent’s application for committal for contempt, the crux of the application was hinged on the alleged act of the Appellant’s younger brother, Omolayo Ape and alleged sales of the disputed land to unknown persons, which facts were denied by the Appellant, paragraphs 9 and 10 of the respondent’s affidavit, page 23 of ,the records, also pages 25 – 37, 54 -71.
It was also argued that the deponents to the Respondent’s further and better affidavit, pages 41 – 53 of the records, Balogun Ilesanmi and Ade Odunayo are not party to the Respondent’s action, and did not disclose on whose authority or interest they made the depositions, which relate to the parties in the instant appeal.
It was argued that the said affidavit was neither an exhibit nor an annexure to the application, and that there was no nexus between same and the Respondent. The following cases were cited and relied upon by the learned Appellant’s counsel: RAMOND INYANG AND OTHERS V. ENGR. DR. MAURICE A. EBONG (2001) 25 WRN 138, PARTICULARLY PAGE 173, CHIEF ABUSI DAVID GREEN V. CHIEF DR. E.T. DUBLIN GREEN (2001) 45 WRN 90 particularly at PAGE 108.
Further, that the deponent to the affidavit in support of the Respondent’s application for committal not being a party to the application had, nor locus to do so without  the leave of court or consent and/or authority of the Respondent, See UNITED BANK FOR AFRICAN PLC V. AKPARABONG COMMUNITY BANK (NIG.) LIMITED AND ANOTHER (2005) 35 WRN 98, particularly at PAGE 129. It was the argument of the learned Appellant’s counsel that the Respondent’s Further,and, Better Affidavit filed on 7/2/07 (pages 41-53 of the records) offends the provisions of Sections 86, 88 and 89 of the Evidence Act in that the deponents were not in court when the order allegedly breached by the Appellant was made, not, being partly to the action between the, parties, particularly suit No. HAD/5/2004, therefore the depositions are not within their knowledge. See the case of THE FEDERAL GOVERNMENT OF NIGERIA AND ANOTHER V. A.I.C. LIMITED (2005) 49 WRN 102, AT PAGE 122.
AT PAGE 122.
It was submitted that the learned trial court ought to have disregarded the said affidavit or not attached any weight to it. In his further submission, the learned Appellant’s counsel argued that Exhibit B, attached to the further and better affidavit filed on 7/2/07 is a public document which ought to be certified before it could be admissible.
(pages 41 and 44 of the; records). Reliance was placed on the cases of ZELAJI CHARLES ENUNWA V. INSPECTOR GENERAL OF POLICE AND OTHERS (2003) 24 WRN 152 AT 166, SENATOR DADANA NDAYAKO & ANOR V. SENATOR ISA MOHAMMED (2007) 32 WRN 176 AT 189-190 AND CHIEF GANI FAWEHINMI V. INSPECTOR GENERAL OF POLICE AND OTHERS (2000) 1 WRN 90 AT PAGE 105. The learned Appellants counsel contended that the lower court failed to advert it mind to the Respondent’s Exhibit ‘B’ and failed to make any pronouncement on it in its Ruling or judgment.
Further, that there are contradiction in the various affidavits filed by the parties which ought to have been resolved by calling oral evidence, which the trial court failed to do, to the detriment of the appellant.
It was also submitted that the issue before the lower court is that of contempt which is quasi criminal in nature and requires the respondent to prove his case against the appellant beyond reasonable doubt, see ALHAJI ISHOLA ARE OGELE V. ALHAJI ALERU DARE (2009)  12 WRN 149, PAGE 163, ALSO SECTION 138(1) OF THE EVIDENCE ACT, MIKE AMADI V. FEDERAL REPUBLIC OF NIGERIA (2009) 8 WRN 36, AT PAGE 59 – 60 AND ABIODUN LAPADE AND ANOTHER V. CARRIBEAN FINANCE LIMITED AND OTHERS (2008) 44 WRN 115, AT PAGE 133. ALSO IN PATIENCE ATA V. THE STATE (2009) 8 WRN 134 AT 150 AND 165.
It was argued that the trial court ought to evaluate the evidence of the parties through their various affidavits and ascribe probative value before arriving at a decision, which the trial court failed to do; See NURAINI ONITOLA AND ANOTHER V. THE HON ATTORNEY GENERAL OF LAGOS STATE AND OTHERS (2005) 18 WRN 34 at 72, we were urged to do that which the trial court failed to do, reliance was placed on ABIODUN LAPADE AND ANOR. (SUPRA), to ascertain the veracity of the evidence of the parties. The case of A.U. DEDUWA AND OTHERS V. THE STATE (2001) 10 WRN 139, PAGES 154-155 was cited and relied upon by the learned Appellant’s counsel, wherein it was held that the required step and rule of court should be carefully followed observed and insisted upon especially in considering and dealing with contempt of court, bearing in mind also its punishment in most cases the deprivation, of liberty.
Further, that a copy of the order breached was never presented before the court in the alleged contempt ex facie curia, this approach it was argued is wrong, reliance was placed on the following cases:-
ONIBUDO V. AKIBU (1982) 7 SC 60 AT PAGE 63, ADEYEYE V. AJIBOYE (1987) 3 NWLR PART 61, PAGE 432 AND MOGAJI V. ODOFIN (1978) 4 SC 91 AT 93 – 94.
It was submitted that the lower court ought to have dismissed the Respondent’s application, discharged and acquitted the Appellant.
We were urged to allow the appeal, discharge and  acquit the Appellant and order the refund of the sum of N10,000,00 paid as fine’ in lieu of imprisonment, alternatively, to set aside the decision of the lower court finding the Appellant guilty of contempt of court.
What gave rise to the present appeal is the relief sought and granted on the application of the Respondent in his Motion filed on 16/8/06 (page 22 of the printed records) in which he prayed for an order of committal of the Appellant as Defendant/Respondent for alleged disobedience of the court order made on 2/12/4. Attached to the application is the affidavit in support, pages 23-24, and a counter affidavit in opposition, pages 25-29 of the records. Nothing else was exhibited or attached to the application.
The crux of the Appellant’s first issue is whether the lower court possessed the requisite jurisdiction and or vires  to  entertain the Respondent’s application with the initiating proceeding in mind.
In my earlier decision in AMADASUN v. UME (2007) 13 NWLR PAGE 214 at P.230-231, PARAGRAPHS H-A, I did hold the view, concerning the court’s duty to determine first the issue of jurisdiction where raised, before proceeding on any adjudication if need be, thus: “It is trite, that once the issue of jurisdiction is raised, it must be resolved; otherwise any final decision would be an exercise in futility, no matter  how well reasoned and conducted. A Court: must be competent i.e. have jurisdiction before it can proceed on any adjudication. MADUKOLU V. NKEMDILIM (1962) 2 SCNLR PAGE 341, OLORIODE V. OYEBI (1984) 1 SCNLR 390, SALEH V. MONGUNO (2003) 1 NWLR (PT.801) PAGE 221.”

It is trite, that for a court to assume jurisdiction, the following requirements must be satisfied:
(a) that the court is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the, court from exercising its jurisdiction.
(c) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction,
See. MADUKOLU V. NKEMDILIM (SUPRA), A-G. ANAMBRA STATE V. A.G. FEDERATION (1993) 6 NWLR (PT.302) PAGE 692 and AMADASUN VS. UME (SUPRA) PAGE 231.
what has given rise to this appeal is the order of the learned trial judge finding the Appellant (as Respondent) guilty of contempt of court, the court held at page 105 of the records –
“………… I am of the view that the respondent has breached the order of the Court by selling part of the land to some individuals after the court’s order and encouraged them to continue the development of such plot of land in the disputed land He is hereby found guilty of contempt of court and convicted accordingly.”
The Appellant was thereafter sentenced to a fine of N10,000.00 or one month imprisonment. The Appellant in his first issue has challenged the trial court’s power to entertain the matter in the first place having regard to the procedure by which the case was initiated, that is, the Respondent’s failure (as applicant) to file and serve the Notice of consequences Of disobedience to the order complained of on the Appellant, service of Forms 48 and 49, the, grounds relied upon for bringing the application for committal and non attachment of a copy of the order disobeyed on the application for committal:
In the learned trial Judge’s Ruling, page 103 of the printed records, the factors to be considered in the Application for Committal were enumerated. As rightly held by the trial judge, No doubt, both parties in their various affidavit agreed that there was a court order of 2/12/04 restraining both parties in the substantive case from entering or doing any thing on the land pending the determination of the substantive case, this is admitted and deposed to in paragraph 4 of the affidavit in support of the then Plaintiff/Applicants (now Respondent) application for committal and paragraph 6 of the counter Affidavit filed by the then defendant/Respondent (now Appellant) pages 23 and 26 of the records respectively.
I will recapitulate the factors to be considered as laid down by the learned trial judge at page 103 of the records.
“1. Whether there is a court order
2. Whether the court order was clear and unambiguous.
3. Whether the Respondent has breached or violated the Court’s order.”
The first issue as formulated by the Appellant is neither the resolution of whether the Respondent has breached or violated the court’s order, nor the issue of the alleged disobedience for which the respondent was sentenced but, the issue is the procedure adopted where a disobedience of a court order is alleged against the Appellant before being found guilty of contempt of court and the conviction that followed.
It was rightly argued by the learned Appellant’s counsel that on the face of the Respondent’s application, it was not brought pursuant to any rules of court and from the court’s records none was relied upon in, moving the application before the trial court. The trial court therefore ought to have had recourse to the applicable law on enforcement of judgments and the Rules made there under, that is, section 72 of the sheriffs and civil Process Act and Order IX Rule 13(1)and(2)of the Judgment (Enforcement) Rules.
section 72 of the sheriffs and civil Process Act provides as follows:
“72. If any person refuses or neglects 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 the misconduct defined in paragraph (f) of Section 66 of this Act, 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 than until he has been imprisoned for such time or until he has paid such fine as the court directs.”
While order 42 Rule 2(1), (2) and Rule 4(3) of the Ondo State High Court (Civil procedure) Rules as applicable in Ekiti State, headed: COMMITTAL FOR CONTEMPT OF COURT provides as follows:
“2.(1)An application for an order of committal shall be -made to the Court by motion on notice supported by an affidavit, and shall state the grounds of the application.
(2) The Notice of Motion, affidavit and grounds shall 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 so demands.”
4(3) Except with the leave of the court hearing an application for an order or committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under Rule 2.”
Order IX Rule 13(1) and (2) of the Judgment (Enforcement) Rules provide as follows-
“13(1)- When an order enforceable by committal under Section 72 of the Act has been made the registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods-without the option of paying their value or 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.”
Section 72 and Order IX Rule 13(1) and (2) above made the issuance of Forms 48 and 49 mandatory before one can proceed against a contemnor in a contempt proceedings. In an application for committal it is imperative that the prescribed steps have to be followed. Order IX Rule 13 provides that an order enforceable by committal under Section 72 has been made, the registrar shall issue a copy of the endorsed Notice in Form 48.
The procedure insists on the endorsement of the order on Form 48 which contains the penalty for disobedience or failure to obey the order. This is so, to give the defendant the opportunity to obey or retrace his steps. In the present case from the records, there is nothing to show that the Respondent was issued and served the notice of consequences of disobedience to the order complained of on the Appellant.

In the case of OJEME V MOMODU III (1995) 6 NWLR (PT.403) PAGE 583 AT 597, Ubazeonu J.C.A. (as he then was) had this to say regarding committal proceedings without the endorsement of the order on Form 48. He said:-
“I did not think the law of this country regarding freedom of individual has descended to such abysmal depth 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.”
The essence of the requirement to serve Form 48 on the contemnor is to give him a choice to comply with the order of court; the applicant after 48 hours of service of Form 48 applies to the Registrar for Form 49 to issue on the contemnor.
The Notice originates the process of committal as provided by Order 9 Rule 13 of the Sheriffs and Civil Process Judgment (Enforcement) Rules.

The grounds relied upon for bringing the application for committal is a requirement. Order 42 Rules 1 and 2 of the Ondo State High Court (Civil Procedure) Rules provides as follows:-
“1.(1) The power of the Court to Punish for contempt of Court may be exercised by an order of committal.
(2) An order of committal may be made by the Court where contempt of Court –
(a) is committed in connection with –
(i) any proceedings before the court,
(ii) criminal proceedings,
(iii) proceedings in an inferior court,
(b) is committed in the face of the court, or consists of disobedience to an order of the court, or a breach of an undertaking to the court, or
(c) is committed otherwise than in connection with any proceedings.
2(1) An application for an order of committal shall be made to the court by motion on notice supported by an affidavit, and shall state the grounds of the application.
(2) The Notice of Motion, affidavit and the person sought to be committed provided that the court may dispense with personal service where the justice of the case so demands.”
From the above provisions of the Rules, the grounds relied upon for bringing the application for committal should be served personally on the person sought to be committed, as stated earlier in this judgment, a copy of the order disobeyed must be attached to the application. These steps and procedures were not followed in the Respondent’s application for committal before the trial court.

The law is now settled. In the case of OYEYINKA V. OSAGUE (1994) 2 NWLR (pt.328) 617 at 631 Ubaezonu, J.C.A, (as he then was) made the necessity of the proper procedure to be followed in a committal proceedings clear when he held thus:
“The Sheriffs and Civil Process Law and the his liberty in respect of an order or 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.
The price placed on human liberty by our law should grow rather than diminish with time. I do not think that the law of this country regarding the freedom of individuals has descended to such abysmal depth of rough and ready Justice of medieval era that a person shall be thrown into prison for contempt ex facie curia without giving him an opportunity to retrace his steps. It is therefore my firm view that in a committal proceeding the two laws shall be married together by observing the provisions of section 63 of the Sheriff and Civil Process law and complying with requirements of order 9 rule 13 of the Judgment Rules. It is after that, that an application under order 42 of the 1988 Edict shall be made to the court. Failure to comply with the aforementioned procedure makes the committal proceedings patently defective, and any order made thereon a nullity.”
This was similarly observed in OJEME & OTHERS V. MOMODU III (1995) (SUPRA) AT 597 and so in the following cases HIGH CHIEF KINGSTON EBI DONNIE & OTHERS V. SAMUEL MOSES OYINGBO GOLD (1996) 8 NWLR (PT.465) 230, CHIEF TOM IKIMI v. GODWIN OMAMULI (1995) 3 NWLR (PT.387) P.335 and THE MILITARY GOVERNOR OF KWARA STATE V. RUFUS AFOLABI (1991) 6 NWLR (PT.196) 212.
Non issuance and service of form 48 on the appellant is fatal and renders the respondent’s application and void.

In the case of BEST WESTERN COMPANY LTD. AND OTHERS V. SABBATH WILSON UDOMISOOR & ANOTHER (2001) (SUPRA) AT PG168 to this effect, Ekpe JCA (as he then was) held thus:-
“Failure to serve on the 1st appellant form 48 which originates the process of committal for disobedience of the order of the court was in contravention of order IX Rule 13 of Sheriffs and Civil Process Judgment (Enforcement) Rules 1990, and ought to render any order for breach warrant against the 1st Appellant null and void and if no effect whatsoever See MILITARY GOVERNOR OF KWARA STATE V. AFOLABI (1991) 6 NWLR (PT.196) 212.”
The need to strictly follow the prescribed procedure in a committal proceeding was re-emphasized.

It is the law, that where a law prescribes a procedure to be followed for redress in an alleged contempt or disobedience of a court order, where also the language used in the statute is clear and unambiguous the court will not allow any departure from such procedure. I am bound by decided cases and statutes and have no reason to hold otherwise. See MICHAEL AND ANOTHER V. MINA PRESPECTS VENTURES LTD. (2002) (SUPRA) AT PG 85-86.
In the present case, the application of the Respondent is defective.
In my humble opinion, I am of the view that the trial court ought not to have proceeded to entertain the Respondent’s application in which the prescribed procedure was not followed in filing the application, hearing and subsequent conviction of the Appellant and I so hold.
The complaint against the Respondent is the disobedience of an order of injunction made on the 2nd day of December, 2004, enjoining and restraining the Respondent from further trespassing or doing anything whatsoever on the land in dispute. A copy of the order allegedly disobeyed was not attached to the application, which is fatal to the Respondent’s application and the trial court ought not to have heard the application. The issue here is not whether there was a breach of the court order or not but, once it is alleged, the order said to have been disobeyed must be properly brought to the attention of the alleged contemnor, by issuance of Form 48, who will either retrace his steps in apology, remorse or put an end to the disobedience OR continue in the disobedience which would then result in the issuance and service of Form 49, for an order for him to appear In court and to show cause why he would not be committed to prison for failure to obey the order. If on the date of hearing, the court is satisfied that he was served with a copy of the said order together with the prescribed notice, but, failed to obey the order, an order to commit him to prison may be made, pursuant to Order 9 Rule 13(2) of the Judgments (Enforcement) Rules. These, are the rules surrounding and regulating proceedings for committal to prison for disobedience of the judgment or order of court.
I have perused the printed records of court, the application which resulted in the conviction and sentence of the Appellant did not show that Forms 48 and 49 were issued and served on the Appellant; the grounds for which the application was brought were not given on the face, of the application. The application was clearly not properly before the court, same being incompetent rendered the proceedings incurably defective. The learned counsel rightly challenged the competence of the application of 16/8/06 before the lower court in opposition to the application, which with respect was not looked into and resolved by the trial court, being jurisdictional, it touched on the court’s power to entertain the application.
In YEKINNI ABBAS V. OLATUNJI SOLOMON (SUPRA) PAGE 89, it was held by His Lordship Iguh JSC thus:
…… an application for such committal must strictly comply with the provisions set out in these Rules. An application to commit for civil contempt is in the nature of a criminal charge and the rules relating to criminal charges are therefore applicable. See COMET PRODUCTS U.K. LTD. V. HAWKEX PLASTIC LTD. (1971) 2 Q.B. 67, (1971) 1 ALL E.R. 1141 C.A.”

The proper or improper (whatever the case may be) commencement of a suit determines the jurisdiction or otherwise of the court. Thus, in the case of DREXEL ENERGY AND NATURAL RESOURCES LTD. & OTHERS V. TRANS INTERNATIONAL BANK LTD. & ORS. (2009) (SUPRA) at PG 32 the apex court per His Lordship Muntaka-Commasie JSC held that:
“…the commencement of suit is very fundamental to the determination of issue of jurisdiction. An action wrongly commenced is incompetent and this will rob the court the jurisdiction to hear and determine same.”
The process through which the Respondent commenced his application is wrong. It is settled law that a court would have jurisdiction and competence to determine a matter when, as earlier enumerated in this judgment, the case comes before a court initiated by due process of law, and upon a fulfillment of any condition precedent to the exercise of jurisdiction. See MADUKOLU V. NKEMDILIM (SUPRA), ROSSEK V. A.C.B. LTD. (1993) 8 NWLR (PT.312) 382; (1993) 10 SCNJ 20 AND APADI V. BANUSO (2008) 13 NWLR (PT.1103) 204 AT 219. The application for committal for contempt ought to and should have been initiated in accordance with the provisions of the Sheriffs and Civil Process And which rules provide for the issuance of Forms 48 and 49, failure of which the trial court ought not to have entertained, the application. The trial court lacked the competence to do so.
In the case of LADOJA V. INEC AND OTHERS 2007 40 WRN 1, it was held by this court, that non-fulfillment of the precondition would be prejudicial to the party in default. See also AKINMADE & ORS. V. AJAYI (2008) 34 WRN 175 AND THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED V. ABEL ISAIAH & ORS.

It is an established principle of law that Rules of court are to be obeyed and complied with, where breached or not complied, with, without any explanation, as in the present case, it cannot be overlooked or swept under the carpet in favour of the partly in breach. See the recent case of MAKO V. UMOH (2010) 8 NWLR (PT.1195) PG 82 AT PAGE 108 where his lordship Abba Aji, JCA had this to say:
“It is now firmly settled that rules of court are not mere rules, but they partake of the nature of subsidiary legislations by virtue of section 18(1) of the Interpretation Act and therefore have the force of law, See AKANBI v. ALAO (1989) 3 NWLR (pt.108) 118. That is why rules of court must be obeyed. This is because it is also settle, that when there is non-compliance with the rules of court, the court should not remain passive and helpless. There must be sanction, otherwise the purpose of enacting the rules will be defeated. See the cases of OBA AROMILARIN & ANOR. V. OLADELE & 2 ORS. (1990) 7 NWLR (PT.162); 359; BANGO V. CHADO (1998) 9 NWLR (PT.564) 139; THE HON. JUSTICE KALU ANYAH V. AFRICAN NESPAPERS OF NIGERIA LTD. (1992) 6 NWLR (PT.247) 319, AND OWNERS OF THE M.V. “ARABELLA” V. N.A.I.C. (2008) 11 NWLR (PT.1097) 182. In others words, rules of court are not only meant to be obeyed, they are also binding on all the parties before the court.”
Failure to serve the Appellant with Forms 48 and 49 deprived him as an alleged contemnor of the opportunity to amend assuming he breached the order of injunction complained of.
As I stated earlier in this judgment, in my humble opinion with respect, the learned trial judge ought to have resolved first the issue of the court’s competence and/or jurisdiction to entertain the application, before going further, same having been raised by the Appellant as Defendant/Respondent in the application in question in his counter affidavit, paragraph 7 page 26 of the printed records. From the court’s records, the Respondent has not claimed to have followed the required procedure in accordance with the law governing committal for contempt.
It is clear therefore, that the proper procedure was not followed in the Respondent’s application for committal of the Appellant for contempt this being the case, the resultant effect is that the application was initiated in an incurably defective manner and the learned trial court lacked the requisite jurisdiction to entertain same. The first issue is in consequence resolved in favour of the Appellant.
Having held that the process by which the application was initiated was defective there would be no need to resolve issues two and three and looking into the merits of the application would be an exercise in futility, a waste of Precious judicial time.
In conclusion, I allow the appeal. In granting the Appellant’s alternative prayer, I hold that the conviction and sentence by the learned trial judge, C. I. Akintayo, J. of the Ekiti state High court, Ado-Ekiti Judicial Division on the 10th day of August, 2007 of the appellant is hereby set aside. Each party to bear its respective costs in this appeal.

UWANI MUSA ABBA AJI, J.C.A.: I have read before now, the lead judgment of my learned brother C.N. Uwa, J.C.A. just delivered and. I agree with reasoning and conclusion therein that there is merit in the appeal and it ought to be allowed.
The failure to comply with a condition precedent in contempt proceedings that is the failure to serve the contemnor with Forms 48 and 49 clearly deprives the court of jurisdiction to entertain the application. The appeal is meritorious and I also allow the appeal. I endorse the consequential order as to costs.

HARUNA MOH’D TSAMMANI, J.C.A.: I had before now read the judgment just delivered by my learned brother C.N. Uwa JCA. The facts leading to the committal of the Appellant have been admirably summed up in the lead judgment.
I agree with my learned brother that a condition precedent to the initiation of the committal proceeding against the Appellant was not adhered to in that Forms 48 and 49 were not issued on him as required by order g Rule 13 (1) and (2) of the Judgment Enforcement Rules.
The law is now settled that, where any proceedings are began in a manner other than as provided by the rules, such proceedings are incompetent. In other words, where such mandatory rules are not complied with and they go to the root of the action, the process initiating same will not only be a nullity, but the entire proceedings predicated on it shall became void as you cannot put something on nothing and expect it to stay. It will certainly fall. See Nwabueze v. Nwora (2005) 1 NWLR (pt. 926) p.7; E.B.S.N. Ltd v. Halilco (Nig.) Ltd (2006) 7 NWLR (pt. 980) p. 568.
It is my view that the issuance of Forms 48 and 49 is a condition precedent to the initiation of any contempt proceeding alleged to have been committed ex facie curiae. The requirements of personal service of Forms 48 and 49 as required by order 9 Rules 13(1) and (2) of the Judgment Enforcement Rules made pursuant to the Sheriffs and Civil Process Act are mandatory.
For the fuller reasons given in the lead judgment delivered by my learned brother, I also agree that the appeal has merit and is accordingly allowed by me. The conviction and sentence imposed on the appellant for contempt is hereby set aside. I abide by the order as to cost.

Appearances

A.T. Lawal Esq.For Appellant

AND

Absent.For Respondent