Alhaji Ahmed Mohammed Grema V. Alhaji Ahmadu Janyun & Ors (2000)

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ZAINAB. A. BULKACHUWA., J.C.A.

T

his is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja whereby the Appellant was convicted for contempt of Court contrary to Section 155 of the Penal Code and sentenced to a term of imprisonment for 3 months or to a fine of N300.00 (Three Hundred Naira) in the alternative.

The appellant was to have been turbanned the Sarkin Hausawa of Abuja on 22nd day of February, 1998 when on the 21st day of February, 1998 the respondents applied and obtained an ex-parte order of interim Injunction restraining the appellant from presenting himself for the turbanning ceremony. The motion on notice was fixed for hearing on the 25th day of February, 1997. The interim ex-parte order was served on the appellant’s secretary.

The motion on notice was never heard, however the respondents filed a memorandum of settlement out of court dated 19th day of March, 1997 on 15th day of April, 1997. The Appellant then by a motion on notice, dated 9th day of April, 1997, asking the trial court to stop any consent judgment based on the said memorandum of settlement. This application was also never heard.

The trial Judge while considering the application for the consent judgment based on the memorandum of settlement declared it null and void as the provisions of the Constitution of the Northern Communities Association upon which the Office of Sarkin Hausawa was created was inconsistent with the provisions of Section 6(6) and Section 236 of the 1979 Constitution. On the 11th day of April, 1997 the Court adjourned the Case sine die.

Consequent upon the said adjournment, the Northern Communities Association of Abuja drafted, a new constitution and filed same at the Corporate Affairs commission. Based on this new constitution of the Association the appellant was turbanned Sarkin Hausawa, Abuja on the 3rd day of May, 1997.

On the 9th day of May, 1997 the respondents commenced committal proceedings against the appellant before the trial Court subsequent to which the appellant was convicted for contempt of court on the 2nd day of February, 1998.

Dissatisfied with the said decision, the appellant has now appealed to this Court in his notice of appeal dated 16th February, 1998. The 6 grounds of appeal as contained in the notice of appeal are produced below.

GROUNDS OF APPEAL
GROUND ONE:
The trial Court erred in law in convicting the appellant of contempt of court when there was no legal basis for the conviction particulars;
(i) There was no proof before the Lower Court of personal service on the appellant of the Ex-parte Order made on the 21st day of February, 1997.
(ii) Forms 48 and 49 under the Sheriffs and Civil Process Act were not served on the appellant.

GROUNDS TWO:
The learned trial Judge erred in law in holding that service effected on the Secretary of the appellant was good service on the appellant.

PARTICULARS
(i) The quasi-criminal nature of committal proceedings make personal service of restraining orders mandatory.
(ii) The certificate of service referred to by the learned trial Judge was not part of the material placed before the court for the determination of the committal proceedings.

GROUND THREE:
The learned trial Judge erred in law in retrospectively dispensing with the requirement of personal service of the restraining Order.

PARTICULARS

(i) The discretion given to the Court to dispense of service under Order 42 referred only to motion and affidant and not the restraining Order requiring to be obeyed (sic).
(ii) A Court may only dispense with personal service of the Motion for committal at the stage at which the application for committal is brought before the Court and not at the stage of the determination of the application

GROUND FOUR:
The trial court erred in law in holding that:
“The relevant documents were served on the respondents Counsel on the 26th day of June, 1997. By virtue of Order 8 Rule 19 of the Rules, this is deemed good service”

PARTICULARS
The relevant documents served on respondent’s Counsel is not clear and service effected on the 26th day of June, 1997 cannot be good service or be deemed good service for an act conunited on the 3rd day of May, 1997.

GROUND FIVE:
The trial Court erred in law in holding that forms 48 and 49 under Section 72 and 94 of the Sheriffs and Civil Process Act and the Judgment (Enforcement) Rules applied only to final judgment and not to interlocutory orders.

PARTICULARS
Service of Forms 48 and 49 are mandatory and applicable to all orders of court requiring compliance whether interlocutory or final.

GROUND SIX
The trial Court erred in law in not holding that the ex-parte order of 2 1st day of February, 1997 was discharged on 11th April, 1997 when the substantive matter was adjourned sine die.

PARTICULARS
(i) Ex-parte orders are by their very nature and character required to be of very short duration.
(ii) The adjournment of 11th April, 1997 being sine die the life of the Ex-parte order automatically expired and was thereby discharged.

Out of these grounds of appeal the following issues for determination were formulated on behalf of the appellant;
1. Whether the trial court was right in law in convicting the appellant of contempt of court when there was no proof of personal service of the restraining order on the appellant and/or of personal service of the statutory Forms 48 and 49 in the Sheriffs and Civil Process Act.
2. Whether the trial Court was right in holding that Forms 48 and 49 in the Sheriffs and Civil Process Act and Order 13 (1 & 2) of the judgment (Enforcement) Rules are only applicable to final judgments and not to interlocutory orders.
3. Whether the Ex-parte order made on the 21st day of February, 1997 was discharged by the Order made on the 14th day of April, 1997 adjourning the substantive matter sine die.

The respondents on the other hand raised a preliminary objection to the effect that the issues raised by the appellant were not formulated from the grounds of appeal particularly ground 4 and formulated 3 issues from the remaining grounds of appeal which are:
1. Whether the appellant who was in deliberate disobedience of a positive order of court which he is aware of is not in contempt of that order and liable to the disciplinary jurisdiction of the Court?
grounds 1, 2 and 3.
2. Whether the requirement for service of Forms 48 and 49 under Sections 72 and 94 of the Sheriffs and Civil Process Act and the Judgment Enforcement Procedure Rules applies to the proceedings in this Appeal? Ground 5
3. Whether the ex-parte order of injunction made against the appellant in this case was not extant when the same was deliberately violated by the appellant?

A preliminary objection was raised by the respondent in his brief of argument. It is proper therefore that it be determined first before the main appeal.

The contention of the respondent while raising the preliminary objection is that none of the three Issues formulated relates to or encompasses ground 4 of the grounds of appeal and the appellant is deemed to have abandoned it, urging us to treat it as having been abandoned and strike it out and relied on the Cases of Audu v. Okeke (1998) 3 NWLR (Pt.538) 497.

Ground 4 of the grounds of appeal on which the preliminary objection is raised pertains to a holding of the trial Judge on the service of documents to the appellant’s counsel on 26th day of June, 1997.

A look at the issue formulated by the appellant in his brief will show clearly that none of them is derived from ground 4 of the grounds of appeal. A ground of appeal is deemed abandoned when no issue is derived from it by the appellant. Didi & Ors. v. Iwuno & Ors (1996) 4 SCNJ 57, Godwin v. Christ Apostolic Church (1998) 9 SCNJ 1.

In any Case, the appellant failed to file a reply brief to the preliminary objection raised by the respondent. The general rule being that whenever an objection is raised and there is no reply thereto the objection will be sustained. Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1, Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469.

In the instant case, none of the issues formulated by the appellant is derived, from ground 4 of the grounds of appeal, and there being no reply to the preliminary objection raised that it be struck out, I uphold the objection and accordingly strike out ground 4 of the grounds of appeal.

The appellant raised 3 Issues for determination, while the respondent raised 3 issues, as the two sets of issues are not dissimilar I will determine the appeal by the issues raised by the appellant.

ISSUE NO. 1
Whether the trial Court was right in law in convicting the appellant of contempt of court when there was no proof of personal service of the restraining order on the appellant and/or of personal service of the statutory Forms 48 and 49 in the Sheriffs and Civil Process Act.

It was the contention of the appellant on that issue that the trial court was in error in convicting the appellant of contempt of court when there was no proof before it that the appellant had been served with the restraining Order and/or that the Statutory Forms 48 and 49 in the Sheriffs and Civil Process Act and Order 9 rule 13 (1 and 2) of the Judgment Enforcement Rules had been served on the appellant before the commencement of the committal proceedings.

Further submitting that the proper law on committal proceedings in Section 72 of the Sheriffs and Civil Process Act and Order 9 rules 13(1 and 2) of the Judgment Enforcement Rules which makes it mandatory that Forms 48 and 49 be served personally on the alleged contemnor before committal proceedings can begin and since the respondent did not comply with the said provisions of the law, the contempt proceedings was not initiated by due process of law.

Submitting that the learned trial Judge erred in law in retrospectively dispensing with the requirement of personal service of the ex-parte Order of 21st February, 1997 by relying on Order 42 rule 2(2) which refers only to the motion, affidavit and grounds upon which the application is brought and not to the restraining order of the trial Court itself. Contending that the trial Court was in error in holding the service effected on the appellant’s Secretary as proper service on the appellant and that the Court erred in equating service of motion papers on the appellant’s Counsel to being proper service of the mandatory Forms 48 and 49 and/or of the restraining Ex-parte order.

The respondent in his argument on issue two which is similar to issue one of the appellant submitted that the trial Court was in order in holding that the processes of Forms 48 and 49 is inapplicable to the proceeding in this appeal. That the provisions of Order 42 rule 2(2) High Court, Federal Capital Territory (FCT) Civil Procedure Rules under which the application was brought is exhaustive and require no reference to any other law or procedure. That the Rules being a Federal Decree is not subject to any law. That even if the provisions of Sheriff and Civil Process Act were applied before the promulgation of the Decree, with the promulgation of the Decree, the law will cease to have effect.

This was an issue raised before the trial court, see pages 23 and 24 of records of proceedings where the trial court after considering the issue of personal service raised by the two Counsel held:
“The relevant documents were served on the respondents counsel on the 26th day of June, 1997. By virtue of Order 8 rule 19 of the rules, this is deemed good service. Order 8 rule 19 of the rules stipulates that where a party acts by a Legal Practitioner, service of notice of motion on the Legal Practitioner shall be deemed good service on that party. Moreover, Order 42(2) allows the Court to dispense with personal service of the notice of motion. Affidavit and grounds where the justice of the case so demands. I think the justice of the Case demands that personal service be dispensed with because the respondents are all aware of the court Injunction restraining him from being turbanned as Sarkin Hausawa, Abuja. This disposes of the argument of Mr. Dodo as to personal service of the court order on his client”.

I have appraised the submissions of the Learned Counsel to the two parties both here and at the trial court, the affidavit evidence on the application brought before the trial court on that issue, and I am in agreement with the findings of the learned trial Judge that the application for Committal for Contempt was brought under the Provisions of Order 42(2) of the High Court Federal Capital Territory (FCT) Civil Procedure Rules which allows for dispensation of personal service where the justice of the case so demands.

But in this instance does the justice of the case dispense with personal service?

The facts showed that the order which the appellant was said to be in contempt of was on a motion ex-parte filed on the 20th day of February, 1997, the same day the writ of summons initiating the action before the trial court was filed. The motion ex-parte was heard and determined on the 21st day of February, 1997. As at the time the order was made there is nothing in the records to show that the appellant had even been served with the writ of summons.
In the affidavit supporting the motion for committal dated 9th day of May, 1997 there is no averment to show that the appellant was aware of the ex-parte order issued against him on the 21st day of February, 1997.
Granting that the application was brought under Order 42 rule 2(2) of the Federal Capital Territory, High Court Civil Procedure Rules reproduced below. “The Notice of Motion, Affidavit and grounds shall be served personally on the person sought to be committed but the Court may dispense with personal service where the justice of the case so demands”.
The above provision makes the service of the notice of motion, affidavit and grounds for committal mandatory, and the court can only optionally dispense with personal service when and where the justice of the case demands.
The circumstances of this case as explained above does not warrant the dispensation of personal service on the appellant – BONNIE Vs. GOLD  (1996) 8 NWLR (Pt.465) 230 is applicable to the circumstances of this case where the court held:
“A person restrained by the court from doing any particular act or thing must be duly and properly informed or served with the court Order restraining him before he could be made criminally liable for a breach of such Order…”

It follows therefore, in the instant case, that when the Respondent was restrained in his absence, by the injunctive order of the High Court, the drawn up order duly signed and sealed by the appropriate official of the court should have been properly served, on the respondent what was expected to be bound by the order. Such service must be in the Form duly authorized by the Court and anything short of strict compliance with the procedure will vitiate any such application for committal.

It has been shown by the records of the trial Court that personal service was not effected on the appellant, the trial Court was therefore wrong to have held that this is a situation where personal service could be dispensed with. This will, also answer the questions raised by the respondent in his brief:
“Whether the appellant who was in deliberate disobedience of a positive Order of court which he is aware of is in contempt of that Order and liable to tile disciplinary jurisdiction of the court”.
There is nothing in the records to show that personal service of the court Order had been effected on the appellant. On Issue 2, it is submitted by the appellant that the trial Judge erred in holding that Forms 48 and 49 under the Sheriffs and Civil Process Act, apply only to final judgments and not to interlocutory orders.
Order is defined in Section 19 under the Sheriffs and Civil Process Act as:
“Order includes an Injunction, an Order for the payment of the costs of any party and an Order for the payment of a counter-claim by a plaintiff”.
From the above definition, there is no distinction between an interlocutory Order and a final or perpetual Order. The trial Judge was therefore wrong to have distinguished the two. Osayande Uhumwangho v. Okojie & Anor (1989) 5 NWLR.(pt.122) 147.

ISSUE 3
Whether the ex-parte order made on 21st day of February, 1997 was discharged by the Order on 14th day of April, 1997 adjourning the substantive matter sine die?

It is the submission of the appellant that ex-parte order being naturally Offensive weapons against the spirit of natural justice “audi alteraim partern” are not immortal. Ex-parte orders are conventionally interim in nature by law and as such when the substantive matter was adjourned sine die the ex-parte order was automatically vacated by the trial Court relying on the Case of Kotoye v. Central Bank of Nigeria & 7 Ors (1989) 1 NWLR (Pt.98) 419, (1989) All NLR 76.

The contention of the respondents on the other hand, is that an Order of court even if a nullity, remains in force and binding on the individual affected by it until it is set aside by another clear Order of court and relied on Babatunde v. Olatunji (2000) 2 NWLR (Pt. 646) 557. That the interim Order cannot be otherwise discharged except by an express Order of court. That the Order of interim injunction was therefore subsisting against the appellant.
An Order whether ex-parte or final judgment remains subsisting until it is set aside by a court of competent jurisdiction. Babatunde v. Olatunji (supra). Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129.

In the case at hand, the matter was adjourned sine-die which though meaning indefinitely, the hearing of the case will continue at a later date at the instance of the court or either of the parties. It follows therefore that the matter is still subsisting before the court.
The appellant cannot assume that the adjournment of the matter sine die has discharged a subsisting order of the court. He has to apply to have it Set aside.
The holding in Babatunde s case (supra) is most applicable.
“I think the option open to a person against whom an order was made or a judgment given is plain. He should apply to the court to discharge the Order or appeal against the judgment that it might be set aside as the case may be”.
The appellant cannot assume the vacation of the Order he has to apply to the trial court to have it set aside or appeal against the Order.
The issue is resolved in favour of the respondent.
The appeal on the whole must however succeed as the proceedings for contempt of court before the trial Court was vitiated when personal service of relevant documents was not effected on the person sought to be committed for contempt, in this instance the appellant.
In the circumstances, I set aside the order of conviction and sentence of the appellant by the trial Court of 2nd February, 1998 and substitute it with an order of acquittal and discharge.

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Other Citations: (2000)LCN/0928(CA)