Basil Okoma V. Sunday Samuel Udoh (2001)

LawGlobal-Hub Lead Judgment Report

Opene, J.C.A.

In this case, the plaintiff who is now the respondent brought an action against the defendant/appellant and one Chief Felix Assam at Ikom High Court claiming against them for possession of a cocoa farm or the sum of N8 million damages in alternative. On 27/7/99, Michael Edem J. entered judgment in default of a statement of defence for the sum of N50,000.00 as general damages or in the alternative in line with paragraph 17(1) (2) (3) of the statement of claim. The appellant who was the 2nd defendant thereupon filed a motion to set aside the ruling with a prayer for stay of execution pending the determination of the application. He also filed a notice of appeal against the said judgment and also a motion for a stay of execution pending the determination of the appeal.

On 26/8/99, the plaintiff filed a motion for committal which was fixed for hearing on 1/9/99 and this was served on the appellant’s wife when the matter came up for hearing on 28/10/99 before Uke J. the appellant was absent, the learned trial Judge directed that the appellant be served with a hearing notice and the matter was then adjourned to 22/11/99 for hearing. On 19/11/99, the hearing notice was served on the appellant through his son and when the matter came up for hearing on 22/11/99 the appellant was not in court, the learned trial Judge proceeded to hearing of the motion for committal and in his ruling delivered on the same day, he found the appellant guilty of contempt and thereupon sentenced him to one year imprisonment with hard labour or a fine of N30,000.00.

It is against this ruling that the appellant has appealed to this court. The appellant through his counsel filed his brief of argument. The plaintiff/respondent was served with the notice of appeal and other court processes but he did not file his respondent’s brief. As a result of this, the appellant filed a motion for an order of this court that the appeal be heard without the respondent’s brief and the motion was duly served on the respondent.

On 3/4/2001, when the motion came up for hearing, the plaintiff/respondent was also not in court and the motion was granted on that day.

In the appellant’s brief of argument, three issues were identified for determination of the court and they are:-

“1. Whether the contempt proceedings were competent in view of the tendency of an appeal and a motion of stay of execution.

2. Whether the service of the motion for committal and the hearing notice were proper.
3. Whether the sentence of one year imprisonment for contempt of court is not unconstitutional and void.”

The judgment in this case was delivered on 27/7/99 and on 29/7/99 the appellant filed a notice of appeal and also a motion for stay of execution and the plaintiff/respondent was duly served with these processes because in paragraph 6 of his affidavit in support of the motion for committal. he stated as follows:-

“Paragraph 6: That I am informed by my solicitor, Chief S. M. Angor and I verily believe him that filing and service of a motion for stay and notice of appeal does not operate as stay of execution of a court of law.”

This clearly shows that the appellant, a judgment debtor was held liable for contempt when he has filed a notice of appeal and a motion for stay of execution. This is very wrong because he can not be held liable for contempt that he had not obeyed the order he is appealing against and which he wants to be stayed and he can not be stopped from exercising his constitutional right of appeal. It is settled that the trial court and the appellate court have jurisdiction to grant a stay of execution by an unsuccessful party pending the determination of his appeal and this has not been treated as a disobedience to the judgment that has been appealed against. See Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt. 412) 129.

Another vital and fundamental question raised in this appeal is whether there was a proper service of the motion and hearing notice in this matter, which is quasi criminal. The relevant applicable rules in this matter are Order 9 rule 13 of the Judgment (Enforcement) Rules of the Sheriff and Civil Process Law and Order 42 of Cross River State High Court (Civil Procedure) Rules and they state as follows:-

Order 9 rule 13 of Judgment (Enforcement) Rules of Sheriff and Civil Process Act reads:-

“13(1) When an order enforceable by committal under section 72 of the Act has been made the register shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.

(2) If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as a judgment summons.”