AG OF EDO STATE & ANOR v. CHURCHGATEINDUSTRIES LTD & ANOR

CITATION: (2016) LPELR-41439(CA)

In the Court of AppealIn the Benin Judicial Division

Holden at Benin

ON FRIDAY, 9TH DECEMBER, 2016Suit No: CA/B/171/2012

Before Their Lordships:

JIMI OLUKAYODE BADA Justice, Court of AppealPHILOMENA MBUA EKPE Justice, Court of AppealMOORE ASEIMO A. ADUMEIN Justice, Court of Appeal

Between(1) THE ATTORNEY-GENERAL OF EDO STATE(Representing Edo State Government)(2) MR. OSARO IDAH

- Appellant(s)

And(1) CHURCHGATE INDUSTRIES LIMITED(2) BENDEL BREWERY LIMITED - Respondent(s)

RATIO DECIDENDI1. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Principle of fair hearing

"The issue of service of Form 48 endorsed with the Court order and the service of Form 49 thereafter borders onthe trite fundamental principle of fair hearing. And there is no gainsaying the fact that fair hearing as enshrinedin Section 36 of the 1999 Constitution of the Federal Republic ofNigeria (as amended), is central to the concept of the rule of law. The concept of the Rule of Law is itselfpredicated upon the twin Latin Maxims (I) Audi alterem partem (hear the other side) and (II) Nemo judex incausa sua, (a judge must not give judgment in his own cause). These two fundamental concepts of the rule oflaw are inextricably interwoven with justice system. See the following cases: -- KOTOYE VS CBN (2000) 16 NWLR page 71 at 103 - 104;- LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE VS GANI FAWEHINMI (1985) 2 NWLR page 300."Per BADA, J.C.A. (Pp. 16-17, Paras. E-C) - read in context

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2. COURT - CONTEMPT OF COURT: Meaning and types of contempt of Court"In the analysis of this issue, it is necessary to understand what is meant by "Contempt of Court". The word"Contempt of Court" has no exact definition, it depends on the angle from which it is examined. But generally,contempt of Court may be described as that conduct which tends to bring into disrepute, scorn or disrespect theauthority and administration of the law or such act which tends to interfere with and/or prejudice litigants and/ortheir witnesses in the course of litigation. ?The Black's Law Dictionary, 9th Edition, also described "Contempt ofCourt" as a disregard of or disobedience to the rules or orders of a legislative or judicial body or an interruptionof its proceedings by disorderly behaviour or insolent language in its presence or so near thereto as to disturbthe proceedings or to impair the respect due to such a body. Contempt of Court is either Criminal or Civil. It isCriminal when it consists of interference with administration of law, thus impeding and perverting the course ofjustice. It is civil when it consists of disobedience to the Judgments, orders or other process of the Courtresulting or involving private injury.However, it is the law that Contempt of Court, whether Civil or Criminal, is sui generis and the standard of proofof the disobedience of the order of the Court is not just on the balance of probabilities but beyond reasonabledoubt because it is punished as if it was a criminal offence.See the following cases:- EZEKIEL-HART VS EZEKIEL-HART (1990) 1 NWLR Part 126 Page 276 (1990) 2 SCNJ Page 1 at 2;- DOMA VS OGIRI (1997) 1 NWLR Part 481 Page 322 at 340 paragraphs G - H;- OKEKE VS ATT. GENERAL ANAMBRA STATE (Supra);- AGBACHOM VS THE STATE (1970) 1 All N.L.R. Page 69 at 76;- EZEJI VS IKE (1997) 2 NWLR Part 486 at Page 206. In AWOSANYA VS BOARD OF CUSTOMS (1975) 1 All NLR Part1 Page 106, it was observed that -"a clear distinction between civil contempt and criminal contempt is often difficult to draw. It does not enure tothe benefit of any society that is governed by the Rule of Law to allow the authority and dignity of the Court tobe eroded by unbecoming acts or behavior. Hence, the power to punish for contempt is inherent in Courts ofsuperior jurisdiction and it is quite independent of statutes. Such power is considered necessary for the properadministration of justice. It is not there to be used for the vindication of the Judge as a person or for his personalaggrandizement. Such inherent powers to punish for contempt are created, maintained and retained for thepurpose of preserving the honour and the dignity of the Court. It follows therefore that a Judge exercising suchpowers must always realize that he holds same on behalf of the Court for the advancement of justice and thegood of the public. However, such powers to punish for contempt must be sparingly used if the dignity of theCourt itself is to be well protected.If the Courts are to do justice, they need power to administer it without interference or affront and also toenforce their orders and to punish those who insult or obstruct them directly or indirectly in the performance oftheir duty or misbehave in such a manner as to weaken or lower the authority of a Court of law. However, itmust be remembered that the usefulness of the powers depends on the wisdom and the restraint with whichsuch powers are exercised." See - SODE VS L.S.D.P.C. (2000) 7 NWLR Part 663 Page 152."Per BADA, J.C.A. (Pp. 24-27, Paras. C-B) - read in context

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3. COURT - CONTEMPT OF COURT: How cases of contempt in facie curiae and ex facie curiae should beconducted"The genesis of this case is the alleged violation of the injunctive order of the lower Court which restrained theAppellants from interfering with the first Respondent's management of the 2nd Respondent. The 1stRespondent activated the issuance and service of Forms 48 and 49 i.e. committal proceedings on the 1stAppellant which the 1st Appellant denied. The allegation cannot be described as contempt in the face of theCourt i.e. in facie curiae which is punishable summarily for the sake of maintaining dignity and authority of theCourt. Rather, the allegation is contempt of Court committed outside the Court i.e. ex-facie curiae. And beingcriminal in nature may not be punished summarily. In ATAKE VS ATTORNEY-GENERAL (1982) 11 S.C. page 153,it was held among others as follows: -"The position, therefore is that generally, contempts of Court are either dealt with by trial summarily i.e. brevimanu or in a simple indictment or on information, whether or not the contempt is in curiae facie - (and trials forcontempt of Court by indictment or information are usually before another Judge whose Court was not thesubject matter of the contempt). It is always open to the Court, where the contempt is in curiae facie - to dealwith the same instanter, and without the process of a trial but the case for contempt in such circumstanceshowever, must be quite clear and without doubt, and the contemnor must be taken to know from thecircumstances what the contempt consist of." Also in the case of BOYO VS ATTORNEY-GENERAL OF MIDWESTSTATE (1971) All NLR 342, the alleged contempt was not in the face of the Court and the Supreme Court per SirAdemola C.J.N. held among others that: - "In cases of contempt not in face of the Court, there may be caseswhere the offence should be dealt with summarily but such hearing must be conducted in accordance withcardinal principles of fair process; and the case must be one in which the facts surrounding the allegedcontempt are so notorious as to be virtually incontestable. Where the Judge would have to rely on evidence ortestimony of witnesses to events occurring outside his view and outside his presence in Court, it cannot be saidthat the contempt is in the face of the Court. In such cases, a Judge should not try a contempt in which he isinvolved." See also the following cases: -- Re: G.M. BOYO (1970) 1 All NLR Part 111 at Page 116;- DEDUWA & OTHERS VS THE STATE (1975) 2 S.C. Page 54 (1976) N.M.L.R. Page 236. The decisions of the ApexCourt and this Court have established that where Contempt of Court is committed ex-facie curiae i.e. outsidethe Court, there must be full trial with charge sheets properly drawn up. Like in other criminal matters,witnesses called would be examined and cross-examined in order to prove the guilt of the accused personbeyond reasonable doubt. Where contempt is committed in the face of the Court, the Judge may deal with theissue summarily but he must be seen to be fair in his approach. I am fortified in my views above by thedecisions of the Apex Court and this Court, amongst which are - OMOIJAHE VS UMORU (1995) 8 NWLR Part 614Page 178 at 191 - 192 paragraphs H - B where it was held among others thus: - "Criminal contempt thereforeresembles many ordinary offences such as theft or offences against the person or property by which the interestof the victim himself are prejudiced more immediately than those of the public at large. In the case in hand, thecontempt was not committed before the learned trial Judge and as quite rightly pointed out by the learned trialJudge, the contempt is a criminal contempt. That being so, the prosecution of the offence will involve the act offraming a charge, testimony of witnesses and all other aspects of a full trial. As the contempt was notcommitted in facie curiae before the learned trial Judge, she could not deal with it summarily and punish thecontemnors on the spot. Although there is nothing wrong in arraigning the Respondents before the learned trialJudge for a full trial in the interest of justice, I will urge that they should be taken before another Judge. Thiscase under consideration is contempt outside the Court and before the 1st Appellant could be found guilty andcommitted for contempt, he must be given a fair hearing. As stated earlier in this Judgment, the two types ofcontempt are: (1) Contempt committed facie curiae and (2) Contempt committed ex-facie curiae.In these two types of contempt, a trial is involved. The difference between the two contempts are theprocedure. Whilst a superior Court of record has the inherent jurisdiction to deal with the contempt in the faciecuriae and punish for the offence summarily, punishment for contempt committed ex-facie curiae is criminal innature and involves punishment of a person for his criminal act in relation to judicial process perpetuatedoutside the face of the Court. A charge is therefore involved, a plea is necessary and the accused is entitled tofair hearing of the case brought against him. See the following cases: -- ACCESS BANK PLC VS U.L.O. CONSULT LTD (2009) 12 NWLR Part 1156 Page 534 at 561 paragraphs D - G;- NYA VS EDEM (2005) 4 NWLR Part 915 Page 345 at 367 - 368. ?At this juncture, it is important to emphasizethe importance of following the laid down procedures in any criminal proceedings which would culminate indeprivation of freedom and liberty of person. This Court in DIKIBO VS IBULUYA (2007) All FWLR Part 383 Page166 at 168 held as follows:- "As committal proceedings touch on deprivation of freedom and liberty of theperson, the service and procedure thereof are applied strictly and any break or departure from the strictapplication vitiates the proceedings. See - FAWEHINMI VS STATE (1990) 5 NWLR Part 148 Page 42.- EZEJI VS IKE (1997) 2 NWLR Part 486 Page 206."Per BADA, J.C.A. (Pp. 27-32, Paras. C-D) - read in context

4. EVIDENCE - STANDARD OF PROOF: Standard of proof required for contempt of Court"I am of the view that contempt proceeding being quasi-criminal in nature must be proved beyond reasonabledoubt."Per BADA, J.C.A. (P. 32, Paras. D-E) - read in context

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5. JUDGMENT AND ORDER - JUDGMENT OF COURT: Effect of an appeal against the judgment of a Court"... I am of the view that although a Judgment of a Court of competent jurisdiction remains valid and bindinguntil it is set aside by an Appeal Court or by the lower Court itself if it acted without jurisdiction, but where thedefendant in the cause challenges the validity of the order directed at him either by way of an appeal or otherapplication, he should not be proceeded against for contempt of that order unless and until the issue of itslegality is settled one way or the other. See - GROUP DANONE VS VOLTIC (NIG) LTD (Supra) Page 637 at 660paragraphs E - G Page 661 paragraphs B - H."Per BADA, J.C.A. (Pp. 19-20, Paras. F-B) - read in context

6. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES): Whether service of processes incontempt proceedings must be personal"There is no gainsaying the fact that service of process on a party to a proceeding is crucial and fundamentaland failure to serve where service of process is required is a fundamental vice and it deprives the Court of thenecessary competence and jurisdiction to proceed with the matter. In the case at hand, it is my humble viewthat since this is a case of contempt ex facie curiae, personal service is required. The question here is whetherthe service of Court process on persons other than the person that it is meant for, is personal service. In thatinstance case, the order of Court endorsed with form 49 was served or delivered to one Edaki, a messenger inthe order of the Attorney General. Like I stated earlier in this discourse, since the issue involves contemptproceedings, personal service was required. In the case of ONONYE V. CHUKWUMA (2005) 17 NWLR (Pt.953) 90this Court held thus: "Delivery of such process to such person secretary, spouse, child or servant etc is notpersonal service... See also the case of MANAGEMENT ENT. V. OTUSANYA (1987) 2 NWLR (Pt.55) 179. If theCourt has not directed that personal service should be dispensed with, it is therefore my humble view thatservice of the said process through a messenger in the office of the Attorney General cannot be regarded aspersonal service which is required in a case of contempt such as the instant case." Per EKPE, J.C.A. (Pp. 35-36,Paras. D-E) - read in context

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7. PRACTICE AND PROCEDURE - CONTEMPT PROCEEDINGS: Effect of failure to comply with the rules in acontempt proceeding"In IKIMI VS OMAMULI (Supra) page 362 paragraphs F - H, the Court of Appeal per Uwaifo JCA (as he then was)held among others thus: - "It appears to me that the failure to comply strictly with the procedure in Rule 13 is ofthe outmost moment in committal proceedings. It is no compliance with Rule 13(1) to serve the order and Form48 separately. What must be served is the order endorsed with Form 48. The endorsement is mandatory. See -Enabirhires Vs Atamabo (1967) N.M.L.R. page 253, a High Court decision which I think represent the law. Theremust be proof of personal service. I do not think, with due respect that the observation of Johnson J. in OmopenaVs. Adelaja (1950) 15 NLR page 71 at 71 - 72 was properly applied in Kadiri Vs. Kadiri (1990) 5 NWLR part 153page 665 which appears rather misleading. All that is required is satisfactory or uncontroverted evidence ofproof of personal service of the enrolled order endorsed with Form 48, and later Form 49. I said this much inOgboni Vs. Ojah (1989) 1 NWLR Part 100 page 725 at 736 paragraphs B - E that every individual required to beserved under Order 9 Rule 13 must be personally served with enrolled order that they may be properly broughtto Court. I think an admission by the Respondent that he has been so served can be sufficient evidence ofpersonal service." The Court went further at pages 362 - 363 paragraphs H - B that: -"It follows that Rule 13 must be strictly complied with first, to reiterate, the drawn order endorsed with Form 48be personally served on the person sought to be committed for contempt of the order. This means of course,that the endorsed order must be brought to the notice of the said person before the time of the act restrained ormandated, unless it is of continuing nature. Second, after two clear days of the service, Form 49 follows if theorder is not obeyed. Third, the Court must be satisfied that the endorsed copy of the order and the later noticein Form 49 have been duly served. The law is that if Order 9 Rule 13, being a procedure for commencingproceedings which may result on an imposition of a penalty is not strictly complied with, the proceedings maybe set aside and any conviction therein quashed."In A.G. ANAMBRA STATE VS. OKEKE (Supra) page 614 paragraphs E - G, the Supreme Court per Iguh JSC heldamongst others as follows:-"One of the main issues in controversy between the parties in preliminary objection centered around theeffectiveness and propriety or otherwise of the service of Form 48 with the drawn up order endorsed therein bythe Plaintiffs on the 2nd - 6th Defendants. The actual date of service of the said Form 48 on the Defendants is ofvital importance in the proceeding in the determination of whether or not the alleged act of the Defendantscomplained of constituted contempt of the order of Court. This is because if thealleged acts of the Defendants were committed before the service of Form 48 on them, then of course, nocontempt would have been established against them. It would be otherwise if the alleged act was committedafter the service of the said Form 48 on the Defendants."Also in the case of -BONNIE VS GOLD (1996) 8 NWLR Part 465 page 230 at 237 paragraphs E - G, the Court ofAppeal per Akintan JCA (As he then was) held as follows: - "It follows therefore that when the Respondent wasrestrained in his absence by the lower Court from parading himself as the Odibiado of Sobe, the drawn up orderduly signed and sealed by the appropriate authority of the Court, must be properly served on the Respondentwho was expected to be bound by the said order. The service must be in the form duly authorized by the Court.Anything short of strict compliance with the above procedure would vitiate any application made in furtheranceof the order. Similarly, as the Fundamental Right Enforcement Procedure Rules is silent on the procedure to befollowed in enforcing the order for contempt made under it, the appropriate Rules made for the enforcement ofsuch order in the High Court (Civil Procedure) Rules will be applicable. It follows therefore that the appropriateforms 128 and 129 would have to be issued and properly served on the Respondent. Thus in the instant case,the appropriate Rules and the forms prescribed in the High Court (Civil Procedure) Rules 1988 of Bendel Statewould be applicable. The Appellants failed to follow the Rules laid down in the aforementioned High Court (CivilProcedure) Rules. The lower Court was therefore right in dismissing the said application."Per BADA, J.C.A. (Pp.12-16, Paras. D-C) - read in context

8. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES): Essence of service of Court processes"No doubt, an order for committal potentially deprives a person of his liberty and it is therefore pertinent that allprocedural steps prescribed therein must be strictly adhered to. In general legal parlance, service is a pre-condition to the exercise of jurisdiction by the Court. Where there is no service or there is a procedural fault inservice, the subsequent proceedings are a nullity ab inito. In that regard a party should know or be aware thatthere is a suit against him to enable him prepare a defence. Where a Defendant is not aware of a pendinglitigation because he was not served, theproceedings held outside him will be null and void. See EIMSKIP LTD V. EXQUISITE INDUSTRIES (NIG) LTD (2003)4 NWLR (Pt.809) 88. See also OKE V. AIYEDUN (1986) 2 NWLR (Pt.23) 548." Per EKPE, J.C.A. (Pp. 34-35, Paras. D-A) - read in context

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9. PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES): Whether service of processes incontempt proceedings must be personal"Forms 48 and 49 are fundamental pre-action forms in committal for contempt proceedings which are required,by the Rules of the Lower Court decisions of the Supreme Court, to be served on an alleged contemnorpersonally. See Chief Eyo Ogboni & 2 Ors v. Chief Ojah Ojah & 5 Ors (1989) 1 NWLR (Pt.100) 725. Committal forcontempt proceedings are in a class of their own, as they are quasi-criminal in nature, since an allegedcontemnor found 'guilty' may be committed to prison as in the instant case. Therefore, there must be strictcompliance with the rules of practice and procedure. SeeAlhaji Mohammed Mora & Ors. v. Dr. Samuel O.Adeyeye (1990) 4 NWLR (Pt.142) 76 and Economic and Financial Crimes Commission & Anor. V. Barr. InnocentC. Onwu & Anor (2016) 2 NWLR (Pt.1495) 74. As far as laid down procedure is concerned, this Court has heldthat contempt proceedings are "regarded and treated by Courts as a matter strictissimi juris." SeeDr. Inih A.Ebong v. Mr. Peter Jerome Effiong (2007) 17 NWLR (Pt.1062) 92 at 108."Per ADUMEIN, J.C.A. (Pp. 37-38, Paras. F-E) - read in context

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JIMI OLUKAYODE BADA, J.C.A. (Delivering the

Leading Judgment): This appeal emanated from the

Judgment of the Federal High Court, Benin Judicial

Division, Edo State in Suit No: FHC/B/CS/127/2003 –

CHURCHGATE INDUSTRIES LIMITED AND 1 OTHER

VS ATTORNEY-GENERAL OF EDO STATE AND 1

OTHER delivered on the 30th day of January 2012,

wherein the lower Court committed the 1st Appellant to

prison until he purges himself by complying with the order

of the lower Court of 7/11/2003 and file affidavit of

compliance to that effect.

Briefly, the facts of the case are that the Respondents as

Plaintiffs brought an action against the Edo State

Government solely to enforce the agreement with the Edo

State Government in the management and control of the

2nd Respondent.

The 1st Appellant who was the Attorney-General of Edo

State was sued in his official capacity as a representative of

Edo State Government.

On 7/11/2003, the 1st Respondent obtained an order of

injunction restraining the Edo State Government i.e. the 1st

Appellant from interfering with the 1st Respondent in the

management of the 2nd Respondent which was being

operated by the

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agents of the Edo State Government.

The Edo State Government, dissatisfied with the Ruling,

appealed to this Court on 15/11/2003.

On the 17th day of October 2006, this Court in its Judgment

dismissed the appeal. The Edo State Government,

dissatisfied with the decision of the Court of Appeal, further

appealed to the Supreme Court on 30/10/2006.

As at the time of filing briefs in this Court, the appeal

before the Supreme Court was subsisting.

Despite the pending appeal against the order of

interlocutory injunction before the Supreme Court, the 1st

Respondent initiated contempt proceeding against the

Attorney-General of Edo State upon which he was convicted

on the 30th day of January 2012.

The Appellants, being dissatisfied with the decision of the

trial Court which committed the 1st Appellant to prison,

appealed to this Court.

The learned counsel for the Appellants formulated three

issues for the determination of the appeal. The issues are

set out as follows:

“(1) Whether the committal proceedings which

resulted in the imprisonment of the 1st Appellant for

contempt of Court without proof of personal service

on him of the

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order and statutory Forms 48 and 49 is not invalid.

(Distilled from Grounds 1 and 3).

(2) Whether the learned trial Judge was right to have

proceeded against the 1st Appellant and to have

committed him to prison for contempt of Court when

the order allegedly flouted was the subject of an

appeal before the Supreme Court. (Distilled from

ground 4).

(3) Whether the learned trial Judge was right when he

convicted the 1st Appellant for contempt ex-facie

curiae without a formal charge, arraignment, plea

and opportunity to call witnesses to defend himself

and without the charge being proved beyond

reasonable doubt. (Distilled from Ground 2).

The Learned Counsel for the Respondents, on the other

hand, adopted the issues formulated for determination of

the appeal on behalf of the Appellants.

At the hearing of the appeal, the Learned Counsel for the

Appellants stated that the appeal is against the Ruling of

Federal High Court, Benin delivered on 30/1/2012. The

Notice of Appeal was filed on 2/2/2012. The Record of

Appeal was compiled personally by the Appellants and it

was deemed as properly compiled and transmitted on

20/2/2013.

The

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Appellants’ Brief of Argument though filed on 5/8/2013,

was deemed as properly filed on 7/3/2014.

The Learned Counsel for the Appellants adopted and relied

upon the said Appellants’ brief as his argument in urging

that the appeal be allowed, the Ruling of the lower Court

set aside and the order of committal to prison for contempt

vacated.

The Learned Counsel for the Respondents who was served

with hearing notice, was absent from Court at the hearing

of this appeal. On 6/5/2015, the Respondents were granted

21 days within which to file the Respondents’ Brief of

Argument and it was consequently filed on 27/5/2015.

Pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules

2011, this appeal was treated as being duly argued.

Since counsel for the Respondents has adopted the issues

for determination of the appeal formulated on behalf of the

Appellants, I will therefore rely on the said issues.

ISSUES FOR THE DETERMINATION OF THE APPEAL

ISSUE NO. 1

Whether the committal proceedings which resulted in

the imprisonment of the 1st Appellant for contempt

of Court without proof of personal service on him of

the order and

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statutory Forms 48 and 49 is not invalid. (Distilled

from Grounds 1 and 3).

The Learned Counsel for the Appellants submitted that a

committal proceedings by its very nature potentially

deprives a citizen of his liberty and all the procedural steps

prescribed must be strictly complied with.

He relied on the following cases:-

- ATT.GEN. ANAMBRA STATE VS OKEKE (2002) 12

NWLR Part 782 Page 575 at 615 Paragraphs B – C

AND

- ORDER IX RULE 13 OF THE JUDGMENT

(ENFORCEMENT) RULES C.A.P. 56 LAWS OF THE

FEDERATION OF NIGERIA 2004.

- IKIMI VS OMAMULI (1995) 3 NWLR Part 383 Page

355 at 362 Paragraphs F – H.

The Learned Counsel for the Appellants submitted that

there was no evidence that the 1st Appellant was

personally served with the Order of Court endorsed with

Form 48. He went further in his submission that the

learned trial Judge erred in law when he ordered that the

1st Appellant be committed to prison for contempt when

Form 48 was not served on him. The Learned Counsel for

the Appellants contended that Form 49 was served on one

M. Edaki, a Messenger of the former Attorney-General.

He went further in his submission that

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the defect in the proceedings leading to the conviction and

committal of the 1st Appellant arising from the lack of

personal service of the fundamental processes on Dr.

Osagie Obayuwana is a serious defect that renders the

committal proceedings and Judgment a nullity. He relied on

the case of:- ADENIJI-ADELE VS OGBE (1998) 9 NWLR

Part 567 Page 650 at 667 paragraphs G – H, Page 671

paragraphs B – G, 670 paragraphs G – H.

In his response to the submission of the Learned Counsel

for the Appellants, the Learned Counsel for the

Respondents submitted that a committal for contempt

proceedings must be personally served on the person

sought to be committed but that the Court may dispense

with personal service where justice of the case demands it.

He relied on the case of: -

- FEDERAL CAPITAL DEVELOPMENT AUTHORITY &

ANOTHER VS DR. TIMIEBI AUGUSTA KORIPAMO

AGARY (2010) LPELR – 4148 CA/A/5/2008 per Odili JCA

(as he then was).

It was argued on behalf of the Respondents that the office

of the Attorney-General is a creation of the Constitution

and unless the office is abrogated, it will continue in

perpetuity. He went further that

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any suit by or against Attorney-General will in law be

absorbed by the office which never dies unless the

Constitution abrogates it. He also argued that the office

remains functional whether or not it is occupied by any

person. He relied on the case of – ATT. GENERAL

FEDERATION VS ANPP (2003) 18 NWLR Part 18

Ratios 1, 2 & 3.

The Learned Counsel for the Respondents referred to page

172 of the Record of Appeal to show that both Forms 48

and 49 were duly served on the 1st Appellant.

It was submitted on behalf of the Respondents that where

in a proceedings, the question arises whether or not a

process of Court has been served in the proceeding, the

Court cannot ignore the proof of service by its own record

in the proceedings. And thus the Court is entitled to take

judicial notice of its own proceeding and record. He relied

on – OSAFILE VS ODI (1990) NWLR Part 137 Page

130.

The Learned Counsel for the Respondents contended that

contrary to the Appellants’ submission that since Dr.

Osagie Obayuwana was the one to be committed to prison,

he should have been personally served with the Forms 48

and 49, it was submitted that Dr.

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Osagie Obayuwana needs not be personally served as the

office of Attorney-General was duly served. It was argued

further that Dr. Osagie Obayuwana upon assumption of

office as the Attorney-General should have either complied

with the interlocutory order made on 7/11/2003 or show

cause why the Attorney-General should not be committed.

It was finally submitted that the learned trial Judge was

right when he heard the case and committed the 1st

Appellant to prison.

It is important to state from the onset, that a committal

proceedings by its nature, potentially deprive the citizen of

his liberty, therefore all the procedural steps prescribed

must be strictly complied with. The onus is on the party

urging the Court to make an order of committal to prove

strictly the steps prescribed for committal.

In this appeal under consideration, it was contended on

behalf of the Appellants, that the 1st Appellant was not

served with Form 48 endorsed with Court order. And that

Form 49 which was allegedly filed on 12/12/2007 was

served on one M. Edaki, a Messenger in the office of the

1st Appellant. It was submitted on behalf of the Appellants

that there is no

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evidence that 1st Appellant was personally served with the

order of Court endorsed with Form 48.

But contrary to the above submission, the Learned Counsel

for the Respondents contended that Forms 48 and 49 were

duly served on the Attorney-General of Edo State and that

the proof of service was in the trial Court’s file.

At page 172 of the Record of Appeal, the lower Court held

as follows among others: -

“Service of these processes on the defendant

contemnor is necessary before they can be

committed. In the instant case upon careful perusal

of the Court files, it appears on affidavit of service

that:

(1) Form 48 with the endorsed order of Court of

7/11/2003 was filed on 17/10/2007 and was served on

the 1st Defendant/Respondent.

(2) Form 49 was filed on 12/12/2007 and was served

on the 1st Defendant through his secretary on

15/1/2008. This is a good and effective personal

service on the 1st Defendant/Respondent.”

It must be appreciated at this point that there is

controversy over the issue of service.

The contention of the 1st Appellant is that Form 48

endorsed with Court order was not served on him, and that

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even the Form 49 that was served, was served on a

messenger, one M. Edaki, a Messenger in the office of the

1st Appellant.

Contrary to the above contention, the Learned Counsel for

the Respondents relying on the Ruling of the lower Court

contended that Forms 48 and 49 were duly served upon the

1st Appellant.

The Ruling being relied upon stated among others as

follows:-

“Service of these processes on the defendant

contemnor is necessary before they can be

committed. In the instant case, upon careful perusal

of the Court files, it appears on affidavit of service

that: -

(1) Form 48 with the endorsed Court order of

7/11/2003 was filed on 17/10/2007 and served on the

1st Defendant/ Respondent.

(2) Form 49 was filed on 12/12/2007 and was served

on the 1st Defendant through his secretary on

15/1/2008. This is a good and effective personal

service on the 1st Defendant.”

(See page 172 of the Record of Appeal).

It is to be recalled that as at 2007 when Form 48 endorsed

with Court order was allegedly served on the office of the

1st Appellant, the 1st Appellant, Dr. Osagie Obayuwana

was not yet the Attorney-General of Edo

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State. So also when Form 49 was allegedly served on the

office of the 1st Appellant through one M. Edaki a

Messenger, the 1st Appellant Dr. Osagie Obayuwana was

not yet the Attorney-General of Edo State.

Dr. Osagie Obayuwana was Attorney-General of Edo State

between 2009 to 2012.

The whole exercise carried out by the Respondents is like a

witch hunt. It is calling a dog a bad name in order to hang

it.

It is a fact that the office of the Attorney-General is a

creation of the Constitution and it continues in perpetuity.

But the fact remains that the Attorney-General without a

substantive holder of the office cannot be committed for

contempt. That being the case, it is only fair that when Dr.

Osagie Obayuwana became the Attorney-General in 2009,

he ought to have been served with Form 48 endorsed with

the Court order and also Form 49, both of them personally.

Only the service can establish the culpable mens rea

indicating that he knew about the order and he chose to

flout it.

In my humble view, the personal service required by law to

bring the order of Court and the statutory Forms 48 and 49

to the attention of the then Hon. Attorney-General,

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Dr. Osagie Obayuwana before his conviction and committal

for contempt on 30/1/2012, was not complied with before

he was deprived of his liberty.

The non-service of the said statutory Forms 48 and 49 on

Dr. Osagie Obayuwana personally constitutes a violation of

his right to fair hearing, and this defect has rendered the

committal proceedings and the Judgment of the trial Court

a nullity.

I am fortified in my view above by the provisions of ORDER

IX RULE 13 OF THE JUDGMENT (ENFORCEMENT)

RULES CAP 56 LAWS OF THE FEDERATION 2004.

In IKIMI VS OMAMULI (Supra) page 362 paragraphs

F – H, the Court of Appeal per Uwaifo JCA (as he then was)

held among others thus: -

“It appears to me that the failure to comply strictly

with the procedure in Rule 13 is of the outmost

moment in committal proceedings. It is no

compliance with Rule 13(1) to serve the order and

Form 48 separately. What must be served is the order

endorsed with Form 48. The endorsement is

mandatory. See – Enabirhires Vs Atamabo (1967)

N.M.L.R. page 253, a High Court decision which I

think represent the law. There must be proof of

personal service. I do not think, with due

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respect that the observation of Johnson J. in Omopena

Vs. Adelaja (1950) 15 NLR page 71 at 71 – 72 was

properly applied in Kadiri Vs. Kadiri (1990) 5 NWLR

part 153 page 665 which appears rather misleading.

All that is required is satisfactory or uncontroverted

evidence of proof of personal service of the enrolled

order endorsed with Form 48, and later Form 49. I

said this much in Ogboni Vs. Ojah (1989) 1 NWLR

Part 100 page 725 at 736 paragraphs B – E that every

individual required to be served under Order 9 Rule

13 must be personally served with enrolled order that

they may be properly brought to Court. I think an

admission by the Respondent that he has been so

served can be sufficient evidence of personal service.”

The Court went further at pages 362 – 363 paragraphs H –

B that: -

“It follows that Rule 13 must be strictly complied with

first, to reiterate, the drawn order endorsed with

Form 48 be personally served on the person sought to

be committed for contempt of the order. This means

of course, that the endorsed order must be brought to

the notice of the said person before the time of the

act restrained or

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mandated, unless it is of continuing nature. Second,

after two clear days of the service, Form 49 follows if

the order is not obeyed. Third, the Court must be

satisfied that the endorsed copy of the order and the

later notice in Form 49 have been duly served. The

law is that if Order 9 Rule 13, being a procedure for

commencing proceedings which may result on an

imposition of a penalty is not strictly complied with,

the proceedings may be set aside and any conviction

therein quashed.”

In A.G. ANAMBRA STATE VS. OKEKE (Supra) page

614 paragraphs E – G, the Supreme Court per Iguh JSC

held amongst others as follows:-

“One of the main issues in controversy between the

parties in preliminary objection centered around the

effectiveness and propriety or otherwise of the service

of Form 48 with the drawn up order endorsed therein

by the Plaintiffs on the 2nd – 6th Defendants. The

actual date of service of the said Form 48 on the

Defendants is of vital importance in the proceeding in

the determination of whether or not the alleged act of

the Defendants complained of constituted contempt

of the order of Court. This is because if the

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alleged acts of the Defendants were committed before

the service of Form 48 on them, then of course, no

contempt would have been established against them.

It would be otherwise if the alleged act was

committed after the service of the said Form 48 on

the Defendants.”

Also in the case of –BONNIE VS GOLD (1996) 8 NWLR

Part 465 page 230 at 237 paragraphs E – G, the Court

of Appeal per Akintan JCA (As he then was) held as follows:

-

“It follows therefore that when the Respondent was

restrained in his absence by the lower Court from

parading himself as the Odibiado of Sobe, the drawn

up order duly signed and sealed by the appropriate

authority of the Court, must be properly served on the

Respondent who was expected to be bound by the said

order. The service must be in the form duly

authorized by the Court. Anything short of strict

compliance with the above procedure would vitiate

any application made in furtherance of the order.

Similarly, as the Fundamental Right Enforcement

Procedure Rules is silent on the procedure to be

followed in enforcing the order for contempt made

under it, the appropriate Rules made for the

enforcement

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of such order in the High Court (Civil Procedure)

Rules will be applicable. It follows therefore that the

appropriate forms 128 and 129 would have to be

issued and properly served on the Respondent. Thus

in the instant case, the appropriate Rules and the

forms prescribed in the High Court (Civil Procedure)

Rules 1988 of Bendel State would be applicable. The

Appellants failed to follow the Rules laid down in the

aforementioned High Court (Civil Procedure) Rules.

The lower Court was therefore right in dismissing the

said application.”

Consequent upon the foregoing, I am of the view that the

learned trial Judge erred in law when he ordered the 1st

Appellant to be committed to prison for contempt, when

Form 48 endorsed with the order of the Court and Form 49

were not personally served on the 1st Appellant, Dr. Osagie

Obayuwana, who was the then office holder.

The issue of service of Form 48 endorsed with the Court

order and the service of Form 49 thereafter borders on the

trite fundamental principle of fair hearing. And there is no

gainsaying the fact that fair hearing as enshrined in Section

36 of the 1999 Constitution of the Federal Republic of

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Nigeria (as amended), is central to the concept of the rule

of law. The concept of the Rule of Law is itself predicated

upon the twin Latin Maxims (I) Audi alterem partem (hear

the other side) and (II) Nemo judex in causa sua, (a judge

must not give judgment in his own cause). These two

fundamental concepts of the rule of law are inextricably

interwoven with justice system.

See the following cases: -

- KOTOYE VS CBN (2000) 16 NWLR page 71 at 103 –

104;

- LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE VS

GANI FAWEHINMI (1985) 2 NWLR page 300.

Therefore, the proceedings and Judgment which resulted in

the imprisonment of the 1st Appellant for contempt are

invalid, null and void.

This Issue No. 1 is hereby resolved in favour of the

Appellants and against the Respondents.

ISSUE NO. 2

Whether the learned trial Judge was right to have

proceeded against the 1st Appellant and to have

committed him to prison for contempt of Court when

the order allegedly flouted was the subject of an

appeal before the Supreme Court. (Distilled from

Ground 4).

The learned counsel for the Appellants submitted that when

a person is challenging an

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order of Court by way of an appeal or application, he

cannot be proceeded against for not complying with the

said order. He relied on the decision in – GROUP

DANONE VS VOLTIC (NIG) LTD (2008) 7 NWLR Part

1087 page 637 at 660 paragraphs E – G, 661

paragraphs B – H.

Learned Counsel for the Appellants stated that the pending

appeal at the Supreme Court was brought to the attention

of the learned trial Judge.

He submitted that the learned trial Judge was in error to

have proceeded against the 1st Appellant for contempt and

committed him to prison for not complying with the order

of Court being challenged at the Supreme Court in Suit No.

SC/348/2008.

He urged that this issue be resolved in favour of the

Appellants.

In his response to the submission of the Learned Counsel

for the Appellants, the Learned Counsel for the

Respondents submitted that a notice of appeal does not

amount to stay of execution. He contended that a notice of

appeal cannot operate as a stay of the order of the Court.

He relied on the case of: - T.S.A. IND LTD VS KEMA INV.

LTD (2006) 2 NWLR Part 964 Page 316 paragraph C.

It was also submitted on behalf

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of the Respondents that an order of Court operates until

same is set aside or revoked on appeal or by the Court

itself. The case of – ROSEK VS. ACB (1993) 8 NWLR

Part 312 Page 382 at 389 was relied upon.

In this appeal under consideration, the order of the Federal

High Court allegedly not complied with, and for which the

1st Appellant was proceeded against for contempt and

committed to prison for alleged non-compliance, was

challenged by way of an appeal before the Supreme Court.

(The Notice of Appeal to the Supreme Court is on pages

106 – 110 of the Record of Appeal while the Appellants’

brief of argument in the Supreme Court is at pages 131 –

143 of the Record of Appeal).

The attention of the learned trial Judge was also drawn to

the pending appeal at the Supreme Court. (See the Ruling

of the trial Judge on page 236 lines 1 – 3 of the Record of

Appeal).

Consequent upon the foregoing, I am of the view that

although a Judgment of a Court of competent jurisdiction

remains valid and binding until it is set aside by an Appeal

Court or by the lower Court itself if it acted without

jurisdiction, but where the

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defendant in the cause challenges the validity of the order

directed at him either by way of an appeal or other

application, he should not be proceeded against for

contempt of that order unless and until the issue of its

legality is settled one way or the other.

See – GROUP DANONE VS VOLTIC (NIG) LTD (Supra)

Page 637 at 660 paragraphs E – G Page 661

paragraphs B – H.

My inevitable conclusion on this issue is that the learned

trial Judge was in error to have proceeded against the 1st

Appellant for contempt and committed him to prison for not

complying with the order of Court still being challenged at

the Supreme Court in Suit No. SC/348/2008 during the

pendency of the appeal.

This Issue No. 2 is resolved in favour of the Appellants and

against the Respondents.

ISSUE NO 3

Whether the learned trial Judge was right when he

convicted the 1st Appellant for contempt ex-facie

curiae without a formal charge, arraignment, plea

and opportunity to call witnesses to defend himself

and without the charge being proved beyond

reasonable doubt. (Distilled from Ground 2).

The Learned Counsel for the Appellants stated that

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generally, contempt of Court may be described as that

conduct which tends to bring into disrepute, scorn or

disrespect the authority and administration of the law or

such acts which tends to interfere with and/or prejudice

litigants and/or their witnesses in the course of litigation in

the citadel of justice.

He contended that the contemptuous act sought to be

punished in this appeal is not a disrespect personal to the

Judge seeking to hear the contempt proceedings, rather it

is a criminal offence of general interest to the public at

large. He went further that the acts of alleged disrespect

complained of was not done before the trial Judge rather, it

is a case of ex-facie curiae disobedience for which the law

forbids summary trial but one that requires the formal

procedure in an ordinary criminal trial. He relied on several

cases, some of the cases are: -

- SODE VS. L.S.D.P.C. (2000) 7 NWLR Part 663 Page

152;

- ATAKE VS. ATT. GENERAL (1982) 11 SC Page 153

OR (1983) 3 NCLR Page 66;

- BOYO VS. ATT. GENERAL OF MID-WESTERN STATE

NIGERIA (1971) 1 All NLR Page 342;

- DEDUWA & OTHERS VS. THE STATE (1975) 2 S.C.

Page 84;

- AWOBOKUN

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VS ADEYEMI (1968) N.M.L.R. Page 290;

- KOLBAN NIG. LTD. VS. LAWRENCE BROS (1990) 3

NWLR Part 138 Page 356.

The Learned Counsel for the Appellants emphasized that

the act allegedly complained of was not done before the

trial Judge, rather it is a case of ex-facie curiae

disobedience for which the law forbids summary trial but

one that requires the formal procedure in an ordinary

criminal trial.

He also relied on the following cases: -

- ACCESS BANK PLC VS. L.O. CONSULT LTD (2009)

12 NWLR Part 1156 at Page 561 paragraphs D – G;

- NYA VS EDEM (2005) 4 NWLR Part 915 Page 345 at

367 – 388;

It was submitted on behalf of the Appellants that the trial

Court applied not only a wrong law but also a wrong

procedure in committing the 1st Appellant for contempt.

He concluded his submission that the proceedings and the

orders based on them were exercise in futility in that any

unlawful procedure in committal proceedings for contempt

vitiates the entire proceedings.

He relied on the case of – EZEJI VS IKE (1997) 2 NWLR

Part 486 Page 206.

In his response, the Learned Counsel for the Respondents

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also stated that a

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proceeding to commit a Nigerian citizen for contempt (civil

contempt) is a serious matter. It involves the liberty of the

citizen. He went further that it is a criminal or quasi-

criminal proceedings and if found guilty of contempt

alleged, the citizen would be liable to a jail sentence or to

pay fine.

He also argued that before a contemnor enters into his

defence, the prosecutor must first and foremost, make out

a prima facie case against him.

See BONNIE VS GOLD (1996) 8 NWLR Part 465 Page

230 at 238.

It was contended on behalf of the Respondents that in the

instant case, the Respondents filed a motion on notice by

which he sought for an order to commit the 1st Appellant to

prison. And that the allegations against the Appellants were

clearly stated in the affidavit in support of the application.

It was stated that the Appellants, despite being aware of

the allegations in the affidavit in support of the application,

elected not to file a counter-affidavit to challenge the

allegations contained in the affidavit.

The Learned Counsel for the Respondents submitted that

the Appellants having failed to controvert the allegations

contained in the

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affidavit in support of the application for contempt

proceedings, admitted the said allegations.

He submitted that the appeal deserved to fail because the

Appellants had individually and collectively disobeyed the

orders of the lower Court and it is only right that in such

circumstances, they must be made to face the

consequences of their contemptuous behaviour.

In the analysis of this issue, it is necessary to understand

what is meant by “Contempt of Court”.

The word “Contempt of Court” has no exact definition, it

depends on the angle from which it is examined. But

generally, contempt of Court may be described as that

conduct which tends to bring into disrepute, scorn or

disrespect the authority and administration of the law or

such act which tends to interfere with and/or prejudice

litigants and/or their witnesses in the course of litigation.

The Black’s Law Dictionary, 9th Edition, also described

“Contempt of Court” as a disregard of or disobedience to

the rules or orders of a legislative or judicial body or an

interruption of its proceedings by disorderly behaviour or

insolent language in its

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presence or so near thereto as to disturb the proceedings

or to impair the respect due to such a body.

Contempt of Court is either Criminal or Civil. It is Criminal

when it consists of interference with administration of law,

thus impeding and perverting the course of justice. It is

civil when it consists of disobedience to the Judgments,

orders or other process of the Court resulting or involving

private injury.

However, it is the law that Contempt of Court, whether

Civil or Criminal, is sui generis and the standard of proof of

the disobedience of the order of the Court is not just on the

balance of probabilities but beyond reasonable doubt

because it is punished as if it was a criminal offence.

See the following cases:

- EZEKIEL-HART VS EZEKIEL-HART (1990) 1 NWLR

Part 126 Page 276 (1990) 2 SCNJ Page 1 at 2;

- DOMA VS OGIRI (1997) 1 NWLR Part 481 Page 322

at 340 paragraphs G – H;

- OKEKE VS ATT. GENERAL ANAMBRA STATE

(Supra);

- AGBACHOM VS THE STATE (1970) 1 All N.L.R. Page

69 at 76;

- EZEJI VS IKE (1997) 2 NWLR Part 486 at Page 206.

In AWOSANYA VS BOARD OF CUSTOMS (1975) 1 All

NLR Part 1 Page 106, it was

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observed that –

“a clear distinction between civil contempt and

criminal contempt is often difficult to draw. It does

not enure to the benefit of any society that is

governed by the Rule of Law to allow the authority

and dignity of the Court to be eroded by unbecoming

acts or behavior. Hence, the power to punish for

contempt is inherent in Courts of superior

jurisdiction and it is quite independent of statutes.

Such power is considered necessary for the proper

administration of justice. It is not there to be used for

the vindication of the Judge as a person or for his

personal aggrandizement. Such inherent powers to

punish for contempt are created, maintained and

retained for the purpose of preserving the honour and

the dignity of the Court. It follows therefore that a

Judge exercising such powers must always realize that

he holds same on behalf of the Court for the

advancement of justice and the good of the public.

However, such powers to punish for contempt must

be sparingly used if the dignity of the Court itself is to

be well protected.

If the Courts are to do justice, they need power to

administer it without interference or affront

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and also to enforce their orders and to punish those

who insult or obstruct them directly or indirectly in

the performance of their duty or misbehave in such a

manner as to weaken or lower the authority of a Court

of law. However, it must be remembered that the

usefulness of the powers depends on the wisdom and

the restraint with which such powers are exercised.”

See – SODE VS L.S.D.P.C. (2000) 7 NWLR Part 663

Page 152.

The genesis of this case is the alleged violation of the

injunctive order of the lower Court which restrained the

Appellants from interfering with the first Respondent’s

management of the 2nd Respondent. The 1st Respondent

activated the issuance and service of Forms 48 and 49 i.e.

committal proceedings on the 1st Appellant which the 1st

Appellant denied. The allegation cannot be described as

contempt in the face of the Court i.e. in facie curiae which

is punishable summarily for the sake of maintaining dignity

and authority of the Court. Rather, the allegation is

contempt of Court committed outside the Court i.e. ex-facie

curiae. And being criminal in nature may not be punished

summarily. In ATAKE VS ATTORNEY-GENERAL

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(1982) 11 S.C. page 153, it was held among others as

follows: -

“The position, therefore is that generally, contempts

of Court are either dealt with by trial summarily i.e.

brevi manu or in a simple indictment or on

information, whether or not the contempt is in curiae

facie – (and trials for contempt of Court by indictment

or information are usually before another Judge

whose Court was not the subject matter of the

contempt). It is always open to the Court, where the

contempt is in curiae facie – to deal with the same

instanter, and without the process of a trial but the

case for contempt in such circumstances however,

must be quite clear and without doubt, and the

contemnor must be taken to know from the

circumstances what the contempt consist of.”

Also in the case of BOYO VS ATTORNEY-GENERAL OF

MIDWEST STATE (1971) All NLR 342, the alleged

contempt was not in the face of the Court and the Supreme

Court per Sir Ademola C.J.N. held among others that: -

“In cases of contempt not in face of the Court, there

may be cases where the offence should be dealt with

summarily but such hearing must be conducted in

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accordance with cardinal principles of fair process;

and the case must be one in which the facts

surrounding the alleged contempt are so notorious as

to be virtually incontestable. Where the Judge would

have to rely on evidence or testimony of witnesses to

events occurring outside his view and outside his

presence in Court, it cannot be said that the contempt

is in the face of the Court. In such cases, a Judge

should not try a contempt in which he is involved.”

See also the following cases: -

- Re: G.M. BOYO (1970) 1 All NLR Part 111 at Page

116;

- DEDUWA & OTHERS VS THE STATE (1975) 2 S.C.

Page 54 (1976) N.M.L.R. Page 236.

The decisions of the Apex Court and this Court have

established that where Contempt of Court is committed ex-

facie curiae i.e. outside the Court, there must be full trial

with charge sheets properly drawn up. Like in other

criminal matters, witnesses called would be examined and

cross-examined in order to prove the guilt of the accused

person beyond reasonable doubt. Where contempt is

committed in the face of the Court, the Judge may deal with

the issue summarily but he must be seen to be

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fair in his approach.

I am fortified in my views above by the decisions of the

Apex Court and this Court, amongst which are –

OMOIJAHE VS UMORU (1995) 8 NWLR Part 614 Page

178 at 191 – 192 paragraphs H – B where it was held

among others thus: -

“Criminal contempt therefore resembles many

ordinary offences such as theft or offences against

the person or property by which the interest of the

victim himself are prejudiced more immediately than

those of the public at large. In the case in hand, the

contempt was not committed before the learned trial

Judge and as quite rightly pointed out by the learned

trial Judge, the contempt is a criminal contempt. That

being so, the prosecution of the offence will involve

the act of framing a charge, testimony of witnesses

and all other aspects of a full trial. As the contempt

was not committed in facie curiae before the learned

trial Judge, she could not deal with it summarily and

punish the contemnors on the spot. Although there is

nothing wrong in arraigning the Respondents before

the learned trial Judge for a full trial in the interest of

justice, I will urge that they should be taken

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before another Judge.”

This case under consideration is contempt outside the

Court and before the 1st Appellant could be found guilty

and committed for contempt, he must be given a fair

hearing.

As stated earlier in this Judgment, the two types of

contempt are: (1) Contempt committed facie curiae and (2)

Contempt committed ex-facie curiae.

In these two types of contempt, a trial is involved. The

difference between the two contempts are the procedure.

Whilst a superior Court of record has the inherent

jurisdiction to deal with the contempt in the facie curiae

and punish for the offence summarily, punishment for

contempt committed ex-facie curiae is criminal in nature

and involves punishment of a person for his criminal act in

relation to judicial process perpetuated outside the face of

the Court. A charge is therefore involved, a plea is

necessary and the accused is entitled to fair hearing of the

case brought against him.

See the following cases: -

- ACCESS BANK PLC VS U.L.O. CONSULT LTD (2009)

12 NWLR Part 1156 Page 534 at 561 paragraphs D –

G;

- NYA VS EDEM (2005) 4 NWLR Part 915 Page 345 at

367 – 368.

At

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this juncture, it is important to emphasize the importance

of following the laid down procedures in any criminal

proceedings which would culminate in deprivation of

freedom and liberty of person. This Court in DIKIBO VS

IBULUYA (2007) All FWLR Part 383 Page 166 at 168

held as follows:-

“As committal proceedings touch on deprivation of

freedom and liberty of the person, the service and

procedure thereof are applied strictly and any break

or departure from the strict application vitiates the

proceedings.

See – FAWEHINMI VS STATE (1990) 5 NWLR Part

148 Page 42.

- EZEJI VS IKE (1997) 2 NWLR Part 486 Page 206.

Consequent upon the foregoing, I am of the view that

contempt proceeding being quasi-criminal in nature must

be proved beyond reasonable doubt. The Respondents in

this case must prove the facts relied upon strictly. A

situation where Forms 48 and 49 were not duly served on

the 1st Appellant, as I held earlier in this Judgment, is

unacceptable because it is a serious breach of the rules of

committal for contempt. The procedure adopted in

committing the 1st Appellant for contempt is wrong and

orders based upon such wrong

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procedure are null, void and of no effect.

In conclusion, I am of the view that the learned trial Judge

was wrong when he convicted the 1st Appellant for

contempt ex-facie curiae without a formal charge,

arraignment, plea and opportunity to call witnesses to

defend himself and without the charge being proved

beyond reasonable doubt.

This Issue No. 3 is therefore resolved in favour of the

Appellants and against the Respondents.

In the result, with the resolution of all the three issues for

determination in this appeal against the Respondents and

in favour of the Appellants, it is my view that the appeal is

meritorious and it is allowed. The Judgment of the lower

C o u r t d e l i v e r e d o n 3 0 / 1 / 2 0 1 2 i n S u i t N o .

FHC/B/CS/127/2003 – CHURCHGATE INDUSTRIES

LIMITED & 1 OTHER VS ATTORNEY-GENERAL OF

EDO STATE & 1 OTHER is hereby set aside. An order

vacating the order of committal of the 1st Appellant to

prison for contempt of Court is hereby made.

PHILOMENA MBUA EKPE, J.C.A.: I have had the

privilege of reading in draft the lead judgment prepared

and just delivered by my learned brother J. O. BADA, JCA.

All the

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issues raised therein have been clearly adumbrated and I

am in total agreement with the reasoning and conclusion

reached in the lead judgment. I however wish to add a few

comments of my own particularly on issue one which deals

with service of process to the appropriate person.

Issue No.1 reads as follows:

“Whether the committal proceedings which resulted

in the imprisonment of the 1st Appellant for

contempt of Court without proof of personal service

on him of the order and Statutory Forms 48 and 49 is

not invalid." (Distilled from Grounds 1 and 3).

No doubt, an order for committal potentially deprives a

person of his liberty and it is therefore pertinent that all

procedural steps prescribed therein must be strictly

adhered to. In general legal parlance, service is a pre-

condition to the exercise of jurisdiction by the Court. Where

there is no service or there is a procedural fault in service,

the subsequent proceedings are a nullity ab inito. In that

regard a party should know or be aware that there is a suit

against him to enable him prepare a defence. Where a

Defendant is not aware of a pending litigation because he

was not served, the

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proceedings held outside him will be null and void. See

EIMSKIP LTD V. EXQUISITE INDUSTRIES (NIG) LTD

(2003) 4 NWLR (Pt.809) 88. See also OKE V.

AIYEDUN (1986) 2 NWLR (Pt.23) 548.

In the present case the Appellants aver that there was no

evidence that the 1st Appellant was personally served with

the Court Order endorsed with form 48. It is in evidence

however that FORM 49 was served on one M. Edaki, a

messenger of the former Attorney General. The

Respondents contend that personal service could have been

dispensed with since the office of the Attorney General had

been served through a messenger in that office. I am

however not enthused by the argument of the learned

counsel for the Respondent on that point. There is no

gainsaying the fact that service of process on a party to a

proceeding is crucial and fundamental and failure to serve

where service of process is required is a fundamental vice

and it deprives the Court of the necessary competence and

jurisdiction to proceed with the matter. In the case at hand,

it is my humble view that since this is a case of contempt ex

facie curiae, personal service is required. The question

here is whether the service

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of Court process on persons other than the person that it is

meant for, is personal service.

In that instance case, the order of Court endorsed with

form 49 was served or delivered to one Edaki, a messenger

in the order of the Attorney General. Like I stated earlier in

this discourse, since the issue involves contempt

proceedings, personal service was required. In the case of

ONONYE V. CHUKWUMA (2005) 17 NWLR (Pt.953)

90 this Court held thus:

“Delivery of such process to such person secretary,

spouse, child or servant etc is not personal service…

See also the case of MANAGEMENT ENT. V. OTUSANYA

(1987) 2 NWLR (Pt.55) 179. If the Court has not directed

that personal service should be dispensed with, it is

therefore my humble view that service of the said process

through a messenger in the office of the Attorney General

cannot be regarded as personal service which is required in

a case of contempt such as the instant case.

From the totality of all of the above, it is my ardent view

also that the trial judge was in error when he committed

the 1st Defendant to prison for contempt when the relevant

forms id est 48 and 49 had been

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personally served on the 1st Appellant, Dr. Osagie

Obayuwana, who was then the office holder of the time. In

the result, the proceedings and judgment which culminated

in the final Court Order are hereby deemed null and void.

I too resolve this issue in favour of the Appellants against

the Respondents. Consequently, having resolved all other

issues in favour of the Appellants, I too adjudge this appeal

as meritorious and it is hereby allowed.

The judgment of the Court below delivered on the 30th day

of January, 2012 is hereby set aside and in its place, I too

order that the order of committal of the Lower Court be

vacated.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had

the benefit of reading in draft form, the judgment just

delivered by my learned brother, Jimi Olukayode Bada, JCA.

His Lordship has extensively considered and ably resolved

the issues in this appeal.

Forms 48 and 49 are fundamental pre-action forms in

committal for contempt proceedings which are required, by

the Rules of the Lower Court decisions of the Supreme

Court, to be served on an alleged contemnor personally.

See Chief Eyo Ogboni & 2 Ors v.

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Chief Ojah Ojah & 5 Ors (1989) 1 NWLR (Pt.100) 725.

Committal for contempt proceedings are in a class of their

own, as they are quasi-criminal in nature, since an alleged

contemnor found ‘guilty’ may be committed to prison as in

the instant case. Therefore, there must be strict compliance

with the rules of practice and procedure. See Alhaji

Mohammed Mora & Ors. v. Dr. Samuel O. Adeyeye

(1990) 4 NWLR (Pt.142) 76 and Economic and

Financial Crimes Commission & Anor. V. Barr.

Innocent C. Onwu & Anor (2016) 2 NWLR (Pt.1495)

74.

As far as laid down procedure is concerned, this Court has

held that contempt proceedings are “regarded and treated

by Courts as a matter strictissimi juris.” See Dr. Inih A.

Ebong v. Mr. Peter Jerome Effiong (2007) 17 NWLR

(Pt.1062) 92 at 108.

It is for these reasons and the very elaborate reasons given

by my learned brother that I also allow this appeal.

I abide by the orders in the leading judgment.

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