➥ CASE SUMMARY OF:
Mrs. Rose Mofunanya v. Olisa Nwadiogbu (2017) – CA
by PipAr Chima
Court of Appeal – CA/E/282/2009
➥ JUDGEMENT DELIVERED ON:
Thursday, the 16th day of February, 2017
➥ AREA(S) OF LAW
Committal for contempt;
Form 48 & 49;
➥ NOTABLE DICTA
⦿ DUE PROCEDURE MUST BE FOLLOWED FOR CONTEMPT
It is trite that contempt of Court is an office sui generis. An application for committal for any disobedience of an order of Court is a very serious matter as it involves in most cases an exceptional interference with the liberty of a subject and therefore when any antecedent process has to be put in motion every prescribed step and rule however technical should be carefully taken, observed and insisted upon. Any irregularity in the procedure for committed is a fundamental vice which vitiates the entire application. – P.O. Elechi, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Paul Obi Elechi, JCA.
⦿ FOR THE APPELLANT
I. F. Ojukwu Esq.
⦿ FOR THE RESPONDENT
Austine A. Ononye Esq.
➥ CASE HISTORY
This is an appeal against the ruling of the High Court of Anambra State Holden at Onitsha, in the Onitsha Judicial Division and presided over by His Lordship, Honourable Justice C.E. Iyizoba, wherein she dismissed the Appellant’s application for striking out of forms 48 and form 49 filed by the Plaintiff/respondent for being incompetent as can be found at pages 51 and 52 of the record of appeal.
The Appellant had prayed for striking out of the forms 48 and 49 filed by the plaintiff/respondent because the form 48 as issued, did not comply with the mandatory provisions of Order 9 Rule 13 of the Judgments (Enforcement) Rules and the form 49 was issued based on the incompetent form 48. It was against the ruling of the lower Court that the defendant/appellant has appealed to the Court.
➥ ISSUE(S) & RESOLUTION
I. Whether the learned trial judge was right when she dismissed as being misconceived the application of the Appellant for striking out and or dismissal of the forms 48 and 49 incompetent?
RULING: IN APPELLANT’S FAVOUR.
A. The defect in procedure followed in commencing this contempt proceeding cannot be likened to a man drowning in the dark waters and pandering for salvation as contended by the Respondent. The authority of Okwueze v Ejiofor (Supra) does not apply in this case because in that case, what was considered by the Court was not non-compliance as in this case but what to be regarded as a misnomer. Therefore, the said authority does not enhance the Respondent’s argument in any way. The slips observed in forms 48 and 49 in the issuance of the forms is so fundamental in procedure that the learned trial judge at the lower erred in law by holden that the trial judge found the Appellant’s application was misconceived and therefore dismissed from what has been considered above. It is clear that forms 48 and 49 issued in commencement of the contempt proceeding were not issued as required by the provisions of the Judgment (Enforcement) Rules and they must perforce be set aside as it is true in law that no one can put something upon nothing and expect it to stand. On the basis of the above, I therefore hold that the learned trial judge was not right when she dismissed same as being misconceived.
II. Whether the learned trial judge was right when she held that the complaint of the Appellant were not such as should vitiate the forms 48 and 49 served on her?
RULING: IN APPELLANT’S FAVOUR.
A. On the other hand, it must be appreciated that a committal proceeding is a quasi-criminal proceeding that may have its effect on the liberty of the citizen and which injustice will be occasioned to the Appellant by glossing over the fundamental defects in the originating process that may question the competence of the Court or the proceedings before it. The form 48 and 49 issued in commencement of the contempt proceedings were not issued as required by the provisions of the Judgment (Enforcement) Rules and they must perforce be set aside as it is true that no one can put something upon nothing and expect it to stand. Therefore, the learned trial judge erred in glossing over the non-compliance with the mandatory provisions of Order 9 Rules as a mere technicality that did not vitiate or affect the competence of forms 48 and 49 filed by the Respondent.
III. Whether the learned trial judge was right when she held that the Appellant has not shown that she was prejudiced and misled in any way, by the alleged flaws in the forms 48 and 49?
RULING: IN APPELLANT’S FAVOUR.
A. All said and done, the law is that the procedure in Order 9 Rule 13 must be strictly complied with and non compliance with any of its provisions is fatal. See Abbas v. Solomon (2001) 15 NWLR (Pt 735) 150. I therefore agree with the learned Appellant’s submission that the mere fact that the Appellant was served with the defective forms 48 and 49 and that she was not prejudiced or misled by the fundamental defect in their issuance did not make the invalid forms valid. After all as contended by learned counsel, the state of mind of the Appellant is not material in considering the strict compliance and application of the mandatory provision of Order 9 Rule 13 of the Judgment (Enforcement) Rule. I hereby resolve this issue in favour of the Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ DEFINITION OF A COMPETENT GROUND OF APPEAL
Aregbesola v Oyinlola (2001) 9 NWLR (Pt 1253) 627 which states “A ground of appeal is a statement by a party aggrieved with the decision of a Court, complaining that the Court from which the appeal is brought made a mistake in the finding of facts or application of the law to certain set of facts. A ground of appeal is the complaint of the appellant against the judgment of the Court. Such a complaint must be based on the live issue or issue in controversy in the suit once it is succinctly couched and the parties understood and appreciate the meaning of the contents thereof, such a ground of appeal will not be incompetent merely because it is technically defective.”
➥ REFERENCED (OTHERS)