Sylvanus Emeka Madubuike V. Romanus Elochukwu Madubuike (2016)

LawGlobal-Hub Lead Judgment Report

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

The appeal is against the judgment delivered on 18/6/2013 by the Federal High Court presided over by Hon. Justice Adamu Hobon (hereafter to be simply referred to as €œthe Lower Court€ and €œlearned trial Judge€ respectively) finding the Appellant guilty of €œdisobedience of court orders in judgment of 27/11/2008, enforcement order of 23/2/2009 and all the subsequent execution processes connected therewith€ and committing him to prison until he purged himself of the contempt.

The contempt proceeding which resulted in the conviction and committal to prison of the Appellant was commenced by a motion ex-parte filed by the Respondent seeking for an order for the issuance of a bench warrant for the arrest and production in court of the Appellant to show cause why he should not be committed to prison for allegedly violating the execution processes of the judgment of the Lower Court in Suit No: FHC/E/33/94. See pages 1 €“ 10 of the records for the ex-parte motion. On 23/2/2009, the Lower Court granted the orders the Respondent sought including the order for the substituted service on the Appellant by publication in the newspaper of Forms 48 and all other processes required for the enforcement of the judgment orders being sought to be enforced. (See pages 11 €“ 13 of the record). When the Appellant became aware of the application, he filed a counter affidavit to the Form 49 on 22/5/2013. (See pages 71 €“ 73 of the record). The Respondent deposed to, and filed a further affidavit to Form 49. (See pages 1 €“ 5 of the additional record). After an evaluation of the affidavit evidence and exhibits before it, and having also had the benefit of the written addresses of the parties, the Lower Court delivered its judgment in the contempt proceeding; convicted the Appellant and committed him to prison until he purges himself of the contempt.

Being dissatisfied with the judgment of the Lower Court the Appellant on 15/4/2015 lodged at the registry of the Lower Court a notice of appeal dated 15/4/2015. This was done pursuant to the order of this Court made on 14/4/2015 giving the Appellant 7 days from the said 14/4/2015 within which to file his notice of appeal. The notice of appeal contains three grounds of appeal. The grounds of appeal and their respective particulars read thus: –

€œGROUND 1

The Learned trial judge erred in law in convicting the appellant on contempt when the ingredients of contempt was not proved beyond reasonable doubt by the respondent as required by law based on the affidavit evidence before the court.

PARTICULARS:

i. The offence of contempt is criminal in nature hence every ingredient of the offence needed to be proved beyond reasonable doubt.

ii. Neither the respondent nor any other person testified in court linking the appellant with the contempt alleged.

iii. None of the exhibits attached to the application linked the appellant to the contempt.

iv. It is a travesty of justice to require the appellant to prove his innocence in a criminal proceeding when the guilt of the appellant has not been proved in any way.

GROUND 2

The learned trial judge erred in law by convicting the appellant for contempt when the allegation that the appellant broke the seal of the court, tore the orders of the court pasted on the gates of the property, broke into the property and retook possession of the said property were not proved beyond reasonable doubt as required by law.

PARTICULARS