Lonessome Okoi Ofem & Ors. V. Presbyterian Church Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The Respondent obtained an order of interim injunction from the High court of Cross River State sitting at Ugep (hereinafter called the lower court) on 7th August, 2006 upon the motion exparte filed in Suit No. HUG/MISC 23/2006. The Respondent thereafter commenced suit No. HUG/MISC/34/2006 as committal proceedings against the Appellants who had been restrained from entering into the Respondent’s Church building or doing anything therein.

Upon service of Forms 48 and 49 on them, the Appellants filed a Motion on Notice on 20/11/2006 as preliminary Objection to the proceedings and after taking arguments of counsel, the lower court in the ruling of 27/1/2009 dismissed the objection. The Appellants felt dissatisfied with the ruling and appealed to this court through the Notice and Grounds of Appeal filed on 4/2/2009 with 5 grounds of appeal.

In the Appellants’ Brief of Argument settled by E.U. Ejukwa Esq., the learned counsel formulated four issues for determination as follows:

1. Within the terms of the provision of Order 9 Rule 13 (2) of the Judgment Enforcement Rules, whether the signing of Form 49 (notice to show cause why order of attachment should not be made) by the issuing registrar of court is unnecessary.
2. Whether endorsement within the contemplation of Order 9 Rule 13 (1) of the Judgment Enforcement Rules is synonymous with merely exhibiting or annexing.
3. Whether the contempt Proceedings in HUG/MSC.34/2006 taken out simultaneously with the criminal proceedings in exhibit K were not founded on the same facts and circumstances and if they were so founded, whether that does not constitute an abuse of the judicial process.
4. In committal proceedings, whether procedural steps including those constituting conditions precedent to the initiation of the proceedings are mere issues of technicalities and even if they are whether they are inconsequential to the competence of the proceedings.

In the Respondent’s Brief of Argument deemed by this court as properly field on 8/2/2011, the learned counsel, A. A, Obo Esq. did not specifically formulate new issues, but responded to the issues formulated by the Appellant.

At the hearing of the appeal, the two learned counsel adopted their respective Briefs of Argument and urged this court to allow, or dismiss the appeal as it was suitable to the parties.

On issue 1 in his Brief, the learned counsel for the Appellants argued that the manner of initiating the substantive committal proceeding after issuance of Form 48 as set out in Order 9 Rule 13 of the Judgment Enforcement Rules is that the Registrar, on the application of the judgment creditor will issue a Notice in Form 49 to be served on the judgment debtor. He submitted that to issue a process (Form 49 inclusive) is to officially send it out after signing and affixing official stamp and seal. He referred to the Black’s Law Dictionary 8th Edition page 850 for the word “indorse” or “indorsement” and argued that under Order 9 Rule 13 (2) the issuing authority must sign the process and the form must always conform with the law.

He submitted that in the instant case Form 49 was not signed by the issuing Registrar and this defect cannot be cured by the rule that sin of an officer of court cannot be visited on the litigant because this is a quasi criminal proceeding while the defect is a fundamental vice that has a nullifying effect on the proceedings, He submitted that the advantage of every blunder, inadvertence or mistake even if it is technical, must go to the Appellant citing First Bank Plc vs. Maiwada (2003) FWLR (Pt. 151) 2001; Olarinde vs. Olarinde (1993) 7 NWLR (Pt. 307) 629.

He submitted that the issuing officer has a peremptory duty to sign Form 49.

On issue 2, the learned counsel submitted that under the Judgment Enforcement Rules, the issuance of Form 48, Notice of Consequences of Disobedience to Order of Court, and service thereof on the judgment debtor are conditions precedent under order 9 Rule 13 (1) of the judgment (Enforcement) Rules, a copy of the order to be served must be endorsed with the notice in Form 48. He submitted that “endorse” according to the Black’s Law Dictionary 8th Edition page 789 means writing at the back of the form. He cited Brawal shipping (Nig) Ltd. vs. Onwadike (2000) FWLR (Pt. 23) 1254.

According to the learned counsel, Form 48 served in the instant appeal was not endorsed with the order sought to be enforced but the order was annexed to the form, which violates Order 9 Rule 13 (1) of the judgment Enforcement Rules. He submitted that non-compliance with Order 9 Rule 13 (1) of the Judgment Enforcement Rules has the effect of invalidating the proceedings, citing Ezeobi vs. Abang (2001) FWLR (Pt. 56) 652.

On issue no. 3, the learned counsel argued that the same facts and circumstances relied upon for the issuance of Form 49 were also the basis for the arraignment of the 2nd, 3rd and 4th Appellants in a four count charge in MUG/105C/06. He submitted that the focus of the criminal prosecution simultaneously with the contempt proceedings on the same facts and circumstance is to harass, intimidate and subject the 2nd, 3rd and 4th Appellants to multiple punishment and they therefore constitute an abuse of judicial process, citing NV Scheep vs. MVS Arag (2001) FWLR (Pt. 34) 543; Ceder Stationary products Ltd. vs. IBWA Ltd. (2002) FWLR (Pt. 25) 1710. He submitted that the consequence of abuse of the judicial process is a dismissal of that process, which has constituted the abuse, citing Arubo vs. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; ACB Plc vs. Nwaigwe (2000) 1 NWLR (Pt.640) 201.

On issue no. 4, the learned counsel submitted that in every penal proceedings every step taken must be founded upon the provisions of an enabling statute or rule which must be obeyed no matter how technical, citing Deduwa vs. State (1975) 1 All NWLR (Pt. 1) 1; Umeoro vs. COP (1997) 7 SC 13. He submitted that it is the duty of the applicant in a committal proceeding to ensure and prove that all steps are taken which are necessary to comply with the requirements of the law, citing Opobiyi vs. Muniru (2002) All FWLR (Pt, 408) 387. He submitted that where there is a failure to meet the requirement of the law, whether technical, substantive or procedural, that failure will be fatal to the proceedings, citing Abbas vs. Solomon (2001) FWLR (Pt. 67) 847; Agu vs. Anejalogu (2001) FWLR (Pt. 68) 1247; Akuneziri vs. Okenwa (2001) FWLR (Pt.35) 604. He urged this court to allow the appeal, set aside the ruling of the lower court and dismiss the committal proceedings.

The learned counsel for the Respondent in his own Brief opposed the above arguments and submitted on issue 1, that there is nothing in Order 9 Rule 13 (2) on the meaning of the word “issue” used therein which suggests that the Registrar must sign Form 49 since there is no provision at the base of that form as to who should sign the form and the implication is that the Registrar’s signature is not a sine qua non for its authenticity or validity.