Lawrence Okwueze V. Emmanuel Ejiofor (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J. C. A. 

This is an interlocutory appeal against the ruling of Hon. Justice C. J. Okoli of the Onitsha Judicial Division of the Anambra State High Court, dated 8th July, 1996.

The Respondent in this appeal as plaintiff had commenced action in suit No. 0/414/83 against the Appellant who was the defendant. Subsequently, the trial Court on 11th January, 1984 obliged the Respondent an order of interlocutory injunction against the Appellant. This order was allegedly breached and Respondent accordingly started committal proceedings against the Appellant. This was on 5th February, 1996. Appellant raised preliminary objection as to the competence of the proceedings. The trial court overruled him. The appellant was dissatisfied with the ruling of the trial court. He now appeals against the ruling.

The four issues formulated by the appellant, as drawn from the grounds of appeal, for the deternination of the appeal are as follows:-

(1) Whether the learned trial Judge was right in failing to determine all the issues raised against the competency of the committal proceedings and was such determination not a pre-requisite to the hearing of the committal proceedings on the merit?.

(2) Whether the learned trial Judge was right in holding that the issuance of Form 48 was the responsibility of the Assistant Chief Registrar, High Court, Onitsha, and that the failure to endorse Form 48 on the order sought to be enforced was a mere irregularity?.

(3) Whether a copy of the order sought to be enforced stapled to the Form 48 in this case and served on the appellant was compliance or sufficient compliance with the Rules?.

(4) Whether the Appellant waived his right to object to the competency of the committal proceedings by his filing of a counter-affidavit against the said proceedings?.

The Respondent also conceived four issues for the determination of the appeal. These are:

1. Whether the learned trial Judge did not consider all the issues raised in the preliminary objection in coming to his decision?.
2. Whether the learned trial Judge was correct in holding that the issuance of Form 48 was the responsibility of the Assistant Chief Registrar of High Court, Onitsha and that the failure to endorse Form 48 on the order sought to be enforced was a mere administrative irregularity?.
3. Whether as in the instant case, a notice in Form 48 stated to be accompanied by an order of the court and Form 48 which omitted the word “Not” which appeared between the words “should” and “be” and which were proven duly issued and served on the appellant were in compliance or sufficient compliance with the relevant rules of court?.
4. Whether by filing a counter-affidavit in reaction to the application for his committal the appellant had thereby waived his right to object to the committal proceedings?.

Carefully considered, the one set of issues is subsumed in the other set. The set of issues formulated by the respondent are hereby preferred and adopted for the resolution of this appeal.

The appellant’s objection as to the competence of the committal proceedings initiated against him at the lower Court was based on three points.

These are:-

(i) “That the Form 48 issued and served on appellant was not in conformity with the Form 48 provided for under Order 9 rule 13(1) of the Judgment (Enforcement) Order, Cap. 118, Volume 7, Laws of the Anambra State

(ii) That the Form 48 issued and served on appellant equally offended Order 9 rule 13(2) of the same Cap. 118 volume 7 and