Richard Emejuo Nwosu & Ors. V. Gabriel N. Nzeadibe (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment)

This is an interlocutory appeal against the Ruling of Honourable Justice S. A. Nwakanma, sitting at Abia State High Court, Umuahia Judicial Division delivered on 23rd November, 2001.

The appellants are the plaintiffs while the respondent is the defendant in the pending suit in the Court below. On 3rd May, 1999, on the application of the appellants, the Court below, presided over by Hon. Justice S.O.E. Nwanosike made an interim order restraining both parties from entering the land in dispute. On 26th July, 1999, the said Order of 3rd May, 1999 was re-affirmed by the said Hon. Justice S.O.E. Nwanosike restraining both parties “from entering into the land in dispute or dealing with same or the structure thereon-until the final determination of the suit”.

The appellants claimed that despite the said order of court, the respondent entered the land in dispute and continued with the building on the land in dispute. On 22nd February, 2000, on the application of the appellants, the Registrar of the court below issued Form 48 by endorsing same on the Order of 26th July, 1999. The Order with notice in Form 48 endorsed thereon was served on the respondent on 25th February 2000.

The appellants claimed that despite the service on the Order with Form 48 endorsed thereon, the respondent continued to disobey the said Order of Court. As a result, on the application of the appellants, Form 49 was issued by the Registrar of the Court below.

In addition to the service of Form 49, the appellants filed Notice of Motion in support of Form 49. The Notice of Motion with supporting affidavits together with the exhibits were duly filed and served.

In the court below, the respondent, through his counsel, took a preliminary objection, basing his objection on the ground that the contempt proceedings were not in compliance with Order IX Rule 13 of the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Law, Cap. 118, Laws of Eastern Nigeria, 1963, applicable in Abia State.

The said preliminary objection was argued, the appellants herein, through their counsel, argued that the application for the committal to prison of the respondent for disobeying the Order of the Court below was in strict compliance with the said Order IX Rule 13. The respondent submitted to the contrary before the court below.

On 23rd November, 2001 the learned trial Judge delivered her Ruling. In the Ruling, she upheld the preliminary objection and struck out the said application for committal of the respondent to prison on the ground that the application for committal was not in compliance with the provision of the said Order IX Rule 13 of the Judgments (Enforcement) Rules made under the Sheriffs and Civil Process Law, Cap 118, Laws of Eastern Nigeria, 1963, applicable in Abia State.

The Ruling of the lower court which upheld the preliminary objection of the respondent against the committal proceedings is contained in pages 42 – 50 of the record of appeal.

Therein, mere especially at pages 48 – 50, the learned trial Judge gave two reasons for holding in favour of the respondent.

First at page 48 that:

“That proof of service of Form 49 on the respondent is also dated 30/3/2000. This is clearly irregular as Form 49 was issued the same day as Form 48. It is anticipatory service of Form 49 which does not conform within the ambit of the provisions of Order 9 Rule 13(2) of the Judgment (Enforcement) Rules. There was no affidavit attached to Form 49.

The requirement for two clear days after service of Form 48 before Form 49 is issued and served is to satisfy the court that the respondent has clearly disobeyed the court’s order. Even though Form 49 issued by the Registrar indicated inter alia.