IDIKA & ORS v OFFIA & ORS

IDIKA & ORS v OFFIA & ORS


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 17TH MARCH, 2017


Appeal No: CA/OW/361/2 12

Citation:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA, JCA

ITA GEORGE MBABA, JCA

TUNDE OYEBANJI AWOTOYE, JCA


BETWEEN

CHIEF EKE KALU IDIKA

CHIEF UDUMA UWA

CHIEF UFERE NDUKWE

CHIEF KALU KALU UKPAI

CHIEF ANTHONY UKPAI IDIKA

CHIEF OKORIE AGWU UKAPI

CHIEF UZOMJNA UWA

CHIEF UWA UKAHA

CHIEF EUGENE EZERA KALU (ASPRO)

(PARTY SOUGHT TO BE COMMITTED TO PRISON)

(CONTEMNORS/APPELLANTS)

AND

OBASI IBEM OFFIA

OKORO ULU UKAHA
(FOR THEMSELVES AND AS REPRESENTING NDI UDUMA IBE PATERNAL FAMILY, ASAGA OHOFIA)

UMA KALU NWANKWO

NMECHA KALU
(FOR THEMSELVES AND AS REPRESENTING NDIEZERE PATERNAL FAMILY, ASAGA OHAFIA)

CHIEF OKWARA EBULE
(EZEOGA ASAGA)

(RESPONDENTS)


PRONOUNCEMENTS


A. EVIDENCE
1. Public Document – Procedure for proper certification of a public document

Procedure for certification of public document

“Section 104 of the Evidence Act defines how to properly certify a public document thus

“1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect together with a certificate written at the foot of such a copy that it is a true copy of such documents or part of it as the case may be.

2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.

3) An officer who by the ordinary cause of official duty, is authorized to deliver such copies shall be deemed to have the custody of such documents within the meaning of this Section. I have seen the copy of order served on the appellants (see page 86-88 of record of appeal). It is clear to me that the copies were not certified in accordance with Section 104 of the Evidence Act. In WITTS & BUSCH LTD V GOODWILL & TRUST INV. LTD (2004) 8 NWLR (PT 874) 179, this Court had held as follows:

“By virtue of Section 111 of the Evidence Act, a public document is regarded as duly certified if it bears at the foot of it that it is so certified and also bears the date of certification, the signature, name, designation and seal of office of the officer who has the public document in his custody, if such officer is authorized to use a seal. In addition it must show that the certification fee was duly paid.” Per AWOTOYE, JCA read in context

B. JUDGMENT
2. Order of Committal – Proper method of serving an order enforceable by committal on a judgment debtor

Proper procedure for serving an order of committal on a judgment debtor

“The law on this point is contained in Order IX Rule 13(1) of the Judgment Enforcement Rule made pursuant to Section 94 of the Sheriffs and Civil Process Act 2004. It provides thus:

“When an order enforceable by committal under Section 72 of the Act has been made the registrar 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.”
This order stipulates that the Registrar shall issue a copy of the order (drawn up), and

(ii) endorse the drawn up order with a notice in Form 48 and

(iii) the copy of the order so endorsed shall be served on the judgment debtor.

A copy of the Order as referred to under ORDER IX Rule 13(1) of the Judgment Enforcement Rules cannot but be a certified true copy of the Order of Court in line with Sections 104 and 105 of the Evidence Act 2011. The purpose of serving the order is to prove and convince the judgment debtor that there was such an order against him. An uncertified photocopy of the order will certainly not do. It is not in accordance with Sections 104, and 105 of the Evidence Act. The order must have the imprimatur of the Court and must not look or give the impression of having a private service See MORA V ADEYEYE (1990) 4 NWLR (PT 142) 76, AKPAN V AKPAN (1996) 7 NWLR (T 462) 620 at 626. The principal document to be served or the judgment debtor is the Order of the Court but on which must be endorsed a notice in Form 8. If the order served on the judgment debtor is a mere photocopy or a draft of the Order of Court which is uncertified but with the Form 48 signed by the Registrar, the service is defective and cannot stand. The Order of the Court is the pillar on which the notice in Form 48 is to rest. If the order is defective it infects the notice and the two are consequently defective and invalid. It must be noted that proceedings for contempt affect the liberty of a citizen and therefore strict observance must be paid to form and procedure. See MORA V ADEYEYE (supra); ABBAS V SOLOMON (2001)36 WRN According to IGU J.S.C. in ABBAS V SOLOMON (supra) at 88

“It must be stressed, however that the power to order committal for civil contempt is one which must be exercised with great case see Wilson V RAFFALOVICH (188 7 QBD 553 AT 561 C.A and Gay V HANCOCK (1887) 56 L.T 726. The Court may only punish as a contempt a breach of or disobedience to an Order of Court or noncompliance with an undertaking if it is satisfied that the terms of the order or injunction are clear and unambiguous. See IBERIAN TRUST LTD V FOUNDERS TRUST AND INVESTMENT CO LTD (1932) 2 K.B. 87. The

Court must also be satisfied that the defendant has power proper notice of terms of the judgment or order and that breach of the injunction has been proved beyond reasonable doubt RE – BRAMBLEVALE LTD (1970) Ch. 128 (1969) 3 ALL ER. 1062 C.A and KNIGHT V CLIFTON (1971) Ch. 70. The Judgments (Enforcement) Rules have prescribed the procedure to be adopted by a judgment creditor who is applying to have the judgment debtor committed to prison for the disobedience of Court Order or judgment. I need stress, however that an application for such committal must strictly comply with the provision set out in these rules. An application to commit for civil contempt is in the nature of a criminal charge and the rules relating to criminal charges are therefore applicable. See COMET PRODUCT U.K. LTD V HAWKEX PLASTIC LTD (1971) 2 Q.B. 67, (1971) 1 ALL E. R 1141 C.A.” Per AWOTOYE, JCA read in context

3. Executory and Declaratory Judgment – Differences between a declaratory judgment and an executory judgment

Distinction between declaratory and executory judgment

“The pertinent question to ask is from the couching and the wording of the consent judgment is it an executory judgment or merely declaratory judgment? Onnoghen JCA (as he then was) defined the two types of judgment in the following way in OSHO V A – G EKITI STATE (2001) 46 W.R.N 22 at 42:

“This then leads us to the question; what are declaratory and executory judgments? From the decided cases it can be said that:
(b) Executory judgments are judgments which declare the respective rights of the parties and then proceed to order the defendant to act in a particular way or restrains from so acting. These judgments are by nature enforceable immediately
(c) On the other hand, declaratory judgments are these judgments which merely proclaim or declare the existence of a legal relationship and do not contain any order which may be enforced against the defendant. Declaratory judgments therefore need subsequent proceedings in which the violated rights receive enforcement; See the following; OKOYA V STANTILL (1990) 2 NWLR (PT 131) 172 at 199, GOVERNMENT OF GONGOLA STATE V TUKUR (1989) 4 NWLR (PT 117) 592″

See also OLABOMI & ANOR V OYEWINLE (2013) LPELR-SC 345/2012 where RHODES – VIVOUR JSC explained the meaning of executory judgment thus:

“An executor, judgment or order is one that states the respective rights of the parties and goes the extra mile to order the defendant to act in a particular way or refrains from interfering with the plaintiffs’ rights.”

And on p.10, his lordship went further to define a declaratory judgment as follows:

“A declaratory judgment or order is one that proclaims or declares the existence of a legal relationship but does not contain any order which may be enforced against the defendant. Once rights declared in a declaratory judgment are infringed fresh proceedings are needed for enforcement. Declaratory judgments cannot be enforced by execution as there is nothing to enforce.” An executory judgment is clearly mandatory. The wording and couching of the order must be clearly and unambiguously directing a particular step or restraining a particular action. It is that clear directive that is to be enforced if flouted. It is not merely interpretative or expository. It implies an emphatic directive or order.” Per AWOTOYE, JCA read in context

4. Order of Committal – Proper method of serving an order of committal on a judgment debtor

Proper procedure for serving an order of committal on a judgment debtor

“Of course, the rules governing the committal of a person for contempt is always strictly constructed since the liberty of a citizen is at stake. Akpan v. Akpan (1996) 7 NWLR (Pt.462) 620. In the case of Chukwu v. Chukwu (2016) LPELR – 40953 CA, we referred to Anozia Onowu v. Ogbuagu ABC Ogooho & Ors CA/OW/104/2009 delivered on 6/1/16 (also (2016) 1 CAR 167) to the effect that:

“…Forms 48 and 49 are Court processes to be issued by the Registrar, upon application by the judgment creditor… every document that is served on an alleged contemnor must have the imprimatur of the Court and must not look or give impression it is coming from an individual or a private source (Mora & Ors v. Adeyeye (1990) 4 NWLR (Pt.142) 76). See also FCDA vs Koripamo Agary (2010) 14 NWLR (Pt.1213) 377, where it was held that any irregularity in procedure for committal is fundamental vice, which vitiates the entire application.”The law requires personal service of the contempt proceedings, including Form 48 and 49, on the alleged contemnor, before the Court can assume jurisdiction over them. Failure to comply with this is fatal to the entire proceedings. See again Chukwu vs. Chukwu (2016) LPELR – 40553, FCDA Vs Koripamo – Agary (supra).” Per MBABA, JCA read in context

5. Service of Court Processes – Effect of failure to serve an originating process on a party

Effect of failure to serve originating process(es)

“Failure to serve an originating process on a party affects the jurisdiction of the Court over the unserved party. In NATIONAL BANK OF NIGERIA LIMITED V GUTHRJE (NIG) LIMITED & ANOR (1993) 3 NWLR (PT 284) 643 a similar situation as in this appeal arose. One of the defendants was not served with an originating process. This was held to be a fundamental vice and that the Court lacked jurisdiction over the defendant that was not served (not the defendants that were served). According to Ogwuegbu JSC.

“The non-service of the writ of summons on the 1st defendant/respondent affected the jurisdiction of the Court………. The proceedings against the 1st Respondent should not have proceeded at all.” Per AWOTOYE, JCA read in context


LEAD JUDGMENT DELIVERED BY AWOTOYE, JCA


This is the judgment in respect of the appeal of the appellant against the ruling of the lower Court delivered on 25/5/2012 in Suit No. HOH/10/2003. The ruling was delivered by Hon. Justice K.C. Nwakpa of Abia State High Court.

The Respondents had instituted an action at the lower Court claiming as follows:

The plaintiff suing for themselves and on behalf of their paternal family of Ndi Uduma Ibe Asaga Ohafia claim from the defendants as follows:

1. A declaration by the Honourable Court that the plaintiffs are the fourth in line in the traditional hierarchy of Asaga Ohafia after Umu Okwara; Umu Ukpola Ezera and Umu Awa and as such are entitled to the portion or share of animals killed for Asaga community known as and called ‘NKPURU OSHIE’ made up of part of the lower ribs of such animals from time immemorial in keeping with Asaga custom and tradition.

2. A declaration that the plaintiffs have the exclusive right to appoint heads of ‘Umu Uma’ in each age grade otherwise called ‘Isi Uke’ in the age grades and the fourth position in Asaga Council of Chiefs i.e. the Ezeogo-in-Council.

3. A declaration by the Honourable Court that these rights accruing to the plaintiffs by their traditional rating or ranking in Asaga Ohafia are not rotatory between them and any other paternal family particularly the first and second defendants family and is not subject to the pleasure of any reigning Ezeogo of Asage or any other person for that matter.

4. An Order of the Honourable Court nullifying the purported declared rotation by the third defendant between the plaintiffs and 1st and 2nd defendants family of their exclusive traditional right as spelt out in the first land second relief’s above contrary to the custom and tradition of Asaga Ohafia people.

5. An Order of perpetual injunction restraining the defendants, their agents or anyone claiming through or acting on their behalf or authority from disturbing or usurping the right of the plaintiffs.

Parties filed and exchanged pleadings. The 3rd defendant then opted for an out of Court settlement which was subsequently made the judgment of the Court.

The respondents subsequently withdrew their action from Court after obtaining the consent judgment.

The said consent judgment reads thus:

“IT IS HEREBY Adjudged and ordered that the terms of settlement accepted and confirmed as Judgment of Court are:-

1. The third Defendant admits and agrees that the Plaintiffs are fourth in line in the hierarchy in the rulership of Asaga Ohafia, comes after Umu Okwere, Umu Akpola, Ezera and Uma Awa and are so entitled to the portion or share of animals killed or Asaga Community known as and called “NKPURU OSHIE” from time immemorial;

2. The third Defendant stress that the Plaintiffs have the exclusive right to appoint heads of Umu Uma otherwise called “Isi Uke”s in the age grades and the fourth position in Asaga Council of Chiefs;

3. The third Defendant agrees to nullify and has nullified the earlier rotation declared by him between the Plaintiffs and first and second Defendants’ family.

4. The third Defendant admits the claim of the Plaintiffs that the rights accruing to them are not rotational between them and any other paternal family particularly the family of the first and second Defendants, the Court refused to make item 5 of the terms of settlement its Judgment.”

Years after the consent Judgment the respondents filed a Motion on Notice for committal against the appellants on the grounds that the appellants continued to disobey the order of Court made on 4/10/2004 (i.e. the consent judgment).

After hearing the parties on 25/5/2012, the appellants were convicted in the following terms:

“IT IS HEREBY ORDERED that the Parties Sought to be Committed to Prison are found guilty of Contempt of the Consent Judgment of this Honourable Court dated 4/10/2004 and ENROLLED as Judgment order of Court on 15/2/2007 in Suit No HOH/10/2003 –OBASI IBEM OFFIA & ANOR (for themselves and as representing Ndi Uduma Ibe Paternal family of Asaga-Ohafia Vs UMA KALU NWANKWO & 2 ORS (for themselves and as representing Ndi Ezera Paternal family of Asaga-Ohafia), the terms of which were endorsed and served on the Parties Sought to be Committed to Prison;

IT IS ALSO ORDERED that each of the 1st -9th Parties Sought to be Committed to Prison is pursuant to Section 72 of the Sheriffs and Civil Process Act and Order 18, Rule 7 of Abia State High Court (Civil Procedure) Rules, 2009, to be Committed or detained in Prison Custody for a term or period of FOURTEEN (14) days with effect from the date of this ORDER OR in lieu of imprisonment for the period afore-stated, pay a fine of N30,000.00 (thirty thousand Naira);

IT IS FURTHER ORDERED that in addition to the term of imprisonment or fine herein prescribed, each of the 1st – 9th Parties Sought to be Committed to Prison and herein Committed shall enter into an undertaking of this Honourable Court to observe and obey those terms of the consent Judgment in suit No. HOH/10/2003 before he is discharged;

IT IS FINALLY ORDERED that the 10th Party (Chief Eugene Ezera Kalu (ASPRO) Sought to be Committed to Prison is hereby DISCHARGED for non-compliance by the Applicants with the strict Rules of Service of FORM 48 as prescribed by the Sheriffs and Civil Process Act and Order 18, Rule 1(2) of Abia State High Court (Civil Procedure) Rules, 2009.”

Aggrieved by the conviction the appellants filed Notice of Appeal on 11/7/2012 challenging the conviction on 3 grounds as follows:

“GROUNDS OF APPEAL

GROUND ONE

ERROR IN LAW

The learned trial judge erred in law when he held that he examined the forms 48 and 49 served and saw that they were signed by the Registrar of High Court of Abia State, Ohafia Judicial Division in their original form despite the fact that the form 48 was prepared overleaf an uncertified photocopy of an enrolled order dated 15th February, 2007 thereby committed the appellants to prison.

PARTICULARS OF ERROR

1. The enrolled order overleaf of which NOTI E TO SHOW CAUSE WHY ORDER OF COMMITTAL SHOULD NOT BE MADE (Form 48 or 128) endorsed overleaf was processed on the 28th day of July, 2009.

2. Photocopy of the enrolled order aforesaid was served on the parties sought to be committed to prison.
3. An enrolled order under Section 102 of the Evidence Act, 2011 qualify as a public document.
4. Under Section 105 of the Evidence Act, 2011 only certified true copies of a public document may be produced in proof of the contents of the public document or parts thereof.

5. The order allegedly served on the parties sought to be committed to prison is bad in law.

GROUND TWO

ERROR IN LAW

The learned trial Judge erred in law when he held that the appellants were guilty of contempt of Court and thereby committed the appellants to prison on the basis of non-executory but declaratory order of the Honourable Court.
PARTICULARS OF ERROR

1. The 1st and 2nd Plaintiffs/Applicants/Respondents, hereinafter referred to as Applicants/Respondents sued the 1st and 2nd defendants as representing Ndi Ezera paternal family Asaga Ohafia and the 3rd defendant in person.

2. The appellants, except the 4th appellant, were not parties in the Suit.
3. Eventually, the 1st and 2nd applicant/respondents reached an out of Court settlement with 3rd defendant and their terms of settlement was made a consent judgment by the trial Court.

4. After the consent judgment was entered as aforesaid the 1st and 2nd Applicant/Respondent later discontinued against the st and 2nd defendants.

5. The consent judgment as can be distilled from the overleaf of Form 48 or 128 were merely declaratory and not executor. The consent judgment entered were admission and declaration of rights of the 1st and 2nd Applicants/Respondents vis-à-vis the 3rd defendant.

6. No Orders of the trial Court was disobeyed

7. Despite that there were no Orders to be obeyed the learned trial Judge committed the appellants to prison.
8. The 1st and 2nd Respondents have not instituted any suit or action seeking injunctive reliefs or damages on the basis of the declaratory and non-executory consent judgment.

GROUND THREE

ERROR IN LAW

The learned trial judge erred in law when he knew that the originating processes were not personally served on all the parties sought to be committed to prison and still went ahead to conduct the trial and subsequently committed the appellants to prison.

PARTICULARS OF ERROR

1. In Paragraph 21 of the appellants respondents statement it was averred that the 10th respondent was served through his elder brother, the 4th appellant.

2. This assertion was not controverted by the applicants/respondents.
3. The learned trial judge sustained the argument that for failing to serve the 10th party sought to be committed to prison rendering the proceedings null and void but limited it to the 10th party sought to be committed to prison.

4. In MARK VS EZE (2004) 117 LRCN 3861 the Supreme Court held that failure to serve originating process on a party would render the whole proceedings, including the judgment entered and all subsequent proceedings based therein wholly irregular, null and void.

5. The non-service of form 48 on the 10th party sought to be Committed ought to oust the jurisdiction of the trial Court from entertaining the matter and thus renders the trial a nullity.

After the transmission of the record of this appeal to this Court parties filed and exchanged briefs of argument.

The appellants’ brief of argument was settled by OBASI AWA their Counsel, and filed on 11/12/2012.

The Respondents’ brief of argument was prepared by CHIEF E. U. NDUKWE their counsel on 31/1/2013 but deemed filed on 28/4/2015.

Obasi Awa for the appellants formulated 3 issues for determination. The issues are as follows:

“a Whether the learned trial judge followed the correct procedure in committing the appellants to prison relying solely on the original copy of the Forms 48 and 49 in the Courts case file without considering and deciding the appellants contention that they were only served with uncertified photocopies of the enrolled Orders of the Court along the Form 48 contrary to the rules.

b. Whether a non – executor Orders of the Court devoid of any mandatory or restraining injunctions can be disobeyed by non – parties/privies to the judgment or any person at all and therefore subject of committal proceedings.

c. Whether the trial Court had jurisdiction to proceed with the contempt proceedings and give ruling on same when a party to the proceedings was not served with the processes as conceded to by the learned trial judge.”

Chief Ndukwe for the Respondents seemed to have adopted the 3 issues formulated by appellants; Counsel.

Arguments on the issues and their resolution. ISSUE ONE
Whether the learned trial judge followed the correct procedure in committing the appellants to prison relying solely on the original copy of the Forms 48 and 49 in the Courts case file without considering and deciding the appellants’ contention that they were only served with uncertified photocopies of the enrolled Orders of the Court along the form 48 contrary to the Rules.

Learned appellants’ counsel referred to the provision of Order 9 Rule 13(1) of the Judgment (Enforcement Rules) which provided that service of form 48 should be in like manner as a judgment summons. He submitted that the appellants were served with uncertified photocopy of the drawn up order contrary to the provision of the Rules. He relied on MORA V ADEYEYE (1990) 4 NWLR PT 142 P.76; BONNIE V GOLD (1996) 8 NWLR (PT. 465) 230 at 237 and AKPAN V AKPAN (1996) 7 NWLR (PT. 462) 620. He posited that the essence of serving the enrolled order along with Form 48 was to prove to the alleged contemnor that there existed a valid Order of Court against him. He added that a judgment or proceeding could be proved by preserving the original form or a certified true copy of it. He cited S.102 and 105 of the Evidence Act 2011; and NZEKWU V NEKWU (1989) 2 NWLR PT 104 373.

He urged the Court to resolve this issue in appellants’’ favour.

Learned Respondents’ counsel in his own submission contended that the law was settled that Courts were entitled to look at the contents of a case file as the lower Court did. He argued that the finding of the lower Court agreed with the case of BONNIE V GOLD (supra) and AKPAN V AKPAN (supra). He urged the Court to resolve the issue in the Respondents’ favour. He submitted further that the introduction of certification under S.102 of the Evidence Act 2011 in the circumstance was extraneous.

I have deeply considered the arguments canvassed on this issue. The pertinent question to ask in resolving this issue are what was served on the appellants and what does the law stipulate that should be served?

The law on this point is contained in Order IX Rule 13(1) of the Judgment Enforcement Rule made pursuant to Section 94 of the Sheriffs and Civil Process Act 2004. It provides thus:

“When an order enforceable by committal under Section 72 of the Act has been made the registrar 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.”

This order stipulates that the Registrar shall issue a copy of the order (drawn up), and

(ii) Endorse the drawn up order with a notice in Form 48 and

(iii) The copy of the order so endorsed shall be served on the judgment debtor.
A copy of the Order as referred to under ORDER IX Rule 13(1) of the Judgment Enforcement Rules cannot but be a certified true copy of the Order of Court in line with Sections 104 and 105 of the Evidence Act 2011.

The purpose of serving the order is to prove and convince the judgment debtor that there was such an order against him. An uncertified photocopy of the order will certainly not do. It is not in accordance with Sections 104, and 105 of the Evidence Act . The order must have the imprimatur of the Court and must not look or give the impression of having a private service See MORA V ADEYEYE (1990) 4 NWLR (PT 142) 76, AKPAN V AKPAN (1996) 7 NWLR (PT 462) 620 at 626.

The principal document to be served or the judgment debtor is the Order of the Court but on which must be endorsed a notice in Form 48.

If the order served on the judgment debtor is a mere photocopy or a draft of the Order of Court which is uncertified but with the Form 48 signed by the Registrar, the service is defective and cannot stand. The Order of the Court is the pillar on which the notice in Form 48 is to rest. If the order is defective it infects the notice and the two are consequently defective and invalid.

It must be noted that proceedings for contempt affect the liberty of a citizen and therefore strict observance must be paid to form and procedure. See MORA V ADEYEYE (supra); ABBAS V SOLOMON (2001)36 WRN According to IGU J.S.C. in ABBAS V SOLOMON (supra) at 88

“It must be stressed, however that the power to order committal for civil contempt is one which must be exercised with great case see Wilson V RAFFALOVICH (188 7 QBD 553 AT 561 C.A and Gay V HANCOCK (1887) 56 L.T 726. The Court may only punish as a contempt a breach of or disobedience to an Order of Court or noncompliance with an undertaking if it is satisfied that the terms of the order or injunction are clear and unambiguous. See IBERIAN TRUST LTD V FOUNDERS TRUST AND INVESTMENT CO LTD (1932) 2 K.B. 87. The Court must also be satisfied that the defendant has power proper notice of terms of the judgment or order and that breach of the injunction has been proved beyond reasonable doubt RE – BRAMBLEVALE LTD (1970) Ch. 128 (1969) 3 ALL ER. 1062 C.A and KNIGHT V CLIFTON (1971) Ch. 70. The Judgments (Enforcement) Rules have prescribed the procedure to be adopted by a judgment creditor who is applying to have the judgment debtor committed to prison for the disobedience of Court Order or judgment. I need stress, however that an application for such committal must strictly comply with the provision set out in these rules. An application to commit for civil contempt is in the nature of a criminal charge and the rules relating to criminal charges are therefore applicable. See COMET PRODUCT U.K. LTD V HAWKEX PLASTIC LTD (1971) 2 Q.B. 67, (1971) 1 ALL E. R 1 41 C.A.”

What was however served on the appellants? The learned trial Judge on 154 of the Record of Appeal held as follows:

“It is also the submission of learned counsel for the parties sought to be committed that what was endorsed on the FORMS 48 and 49 served on his clients is a photocopy of the terms of the drawn Order or Judgment and that under Section 111 (1) of the Evidence Act, it ought to be certified to this contention. I have examined the forms 48 and 49 served and I saw that they were signed by the Registrar of this Court in their original state. The endorsement thereon does not make it photocopy. I therefore do not sustain the contention of Learned Counsel for the parties sought to be committed on this point.”

I respectfully disagree with the above holding of the lower Court. The point is not whether or not they were signed by the Registrar but whether or not the copy of the order served on the appellants was a certified true copy of the original order. Section 104 of the Evidence Act defines how to properly certify a public document thus,

“1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect together with a certificate written at the foot of such a copy that it is a true copy of such documents or part of it as the case may be.

2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.

3) An officer who by the ordinary cause of official duty, is authorized to deliver such copies shall be deemed to have the custody of such documents within the meaning of this Section.”

I have seen the copy of order served on the appellants (see page 86-88 of record of appeal). It is clear to me that the copies were not certified in accordance with Section 104 of the Evidence Act. In WITTS & BUSCH LTD V GOODWILL & TRUST INV. LTD (2004) 8 NWLR (PT 874) 179, this Court had held as follows:

“By virtue of Section 111 of the Evidence Act, a public document is regarded as duly certified if it bears at the foot of it that it is so certified and also bears the date of certification, the signature, name, designation and seal of office of the officer who has the public document in his custody, if such officer is authorized to use a seal. In addition it must show that the certification fee was duly paid.”

Failure to serve certified true copies of the Order of Court on the appellants in my respectful view vitiated the entire contempt proceedings. It constituted a non-compliance with provision of the Judgment Enforcement Rules. In the circumstance I resolve this issue in favour of the appellants.

ISSUE TWO

Whether a non-active, non-executory Order of the Court devoid of any mandatory or restraining injunctions (sic) can be disobeyed by nonparties/privies to the Judgment or any person at all, and therefore subject of committal proceedings.

Learned appellants’ counsel submitted that it was trite law that where a Court of law ordered the doing of an act or restrained a party from doing the act such order must be obeyed until set aside. He added that such an Order however must be active, and unambiguous. He cited OKOYA V SANTILLI (1990) 2 NWLR (PT 132) 172 at 196, CARRENE V AKINLASE (2008) 14 NWLR (PT 1107), 262 at 291.

Learned counsel contended that the Court judgment in the instant appeal was merely declaratory as the learned trial Judge deliberately refused to make injunctive orders. He referred to AG (ONDO STATE) V DARAMOLA (2000) 9 NWLR (PT 673), 613. He posited further that a non-executory order or declaratory order was not liable to contempt proceeding. He cited WEBSTER V SOUTH WALK LONDON BOROGH COUNCIL (1983) QBD 678 cited with approval in OKOYA V SANTILLLI (supra), BASSEY V SAMA (1996) 6 NWLR (PT 457), 234.

In further argument, learned counsel submitted that the consent Judgment was not directed at the appellants but only to the 3rd defendant. He therefore urged this Court to resolve this issue in appellants’ favour.

From the Respondents’ point of view learned Respondents’ counsel submitted that the following question arose from issue 2.

(1) Whether or not the consent judgment was non-active.

(2) Were the appellants’ non-parties to the consent judgment.
(3) Was the consent judgment capable of constituting committal proceedings?

Chief Ndukwe for the Respondents submitted that the consent judgment was both active and executory. He agreed that declaratory orders could neither be stayed nor lead to contempt proceedings.

He further argued that the appellants were parties to the consent judgment in so far they were from Ndi Ezera Compound or the paternal family of Asaga Ohafia and also successors to the Ezeugo in council who represented Asaga Ohafia Community while HOH/10/2003 was going on.

He urged the Court to resolve the issue in favour of the Respondents. I have carefully considered the submissions of learned counsel on both sides. Earlier in this judgment; I have captured the terms of the consent judgment in extenso. The pertinent question to ask is from the couching and the wording of the consent judgment is it an executory judgment or merely declaratory judgment? Onneghen J.C.A (as he then was) defined the two types of judgment in the following way in OSHO V A – G EKITI STATE (2001) 46 W.R.N 22 at 42:

“This then leads us to the question; what are declaratory and executory judgments? From the decided cases it can be said that:

(b) Executory judgments are judgments which declare the respective rights of the parties and then proceed to order the defendant to act in a particular way or restrains from so acting. These judgments are by nature enforceable immediately

(c) On the other hand, declaratory judgments are these judgments which merely proclaim or declare the existence of a legal relationship and do not contain any order which may be enforced against the defendant. Declaratory judgments therefore need subsequent proceedings in which the violated rights receive enforcement; See the following; OKOYA V STANTILL (1990) 2 NWLR (PT 131) 172 at 199, GOVERNMENT OF GONGOLA STATE V TUKUR (1989) 4 NWLR (PT 117) 592”

See also OLABOMI & ANOR V OYEWINLE (2013) LPELR-SC 345/2012 where RHODES – VIVOUR JSC explained the meaning of executory judgment thus:

“An executor, judgment or order is one that states the respective rights of the parties and goes the extra mile to order the defendant to act in a particular way or refrains from interfering with the plaintiffs’ rights.”

And on p. 0, his lordship went further to define a declaratory judgment as follows:

“A declaratory judgment or order is one that proclaims or declares the existence of a legal relationship but does not contain any order which may be enforced against the defendant. Once rights declared in a declaratory judgment are infringed fresh proceedings are needed for enforcement. Declaratory judgments cannot be enforced by execution as there is nothing to enforce.”

An executory judgment is clearly mandatory. The wording and couching of the order must be clearly and unambiguously directing a particular step or restraining a particular action. It is that clear directive that is to be enforced if flouted. It is not merely interpretative or expository. It implies an emphatic directive or order.

The consent judgment in HOS/10/2003 delivered on 4/10/2004 was clearly not executory. What could have made it executory was the item 5 which was an order of injunction, which was refused by the lower Court. The couching and wording of the consent judgment are very clear and did not admit of any emphatic directive. For the purpose of clarity I hereunder reproduce the consent judgment-

“JUDGMENT ORDER

UPON READING THE MOTION ON NOTICE and the accompanying affidavit; and after hearing U. Ndukwe Esq of Counsel for the Plaintiffs, and O.U. Kalu Esq of Counsel for the 1st and 2nd defendants;

IT IS …By adjudged and Ordered that the terms of settlement accepted and confirmed as judgment or Court are:-

“1. The third Defendant admits and agrees that the Plaintiffs are fourth in line in the hierachy in the rulership of Asaga Ohafia, comes after Umu Okwara, Umu Kpola Izera and Uma Awa are so entitled to the portion or share of animals killed for Asaga Community known as and called “NKPUPU OSHIE” from time immemorial;

2. The third Defendant agrees that the Plaintiffs have the exclusive right to appoint heads of Umu Uma otherwise called “Isi Uke” in the age grades and the fourth position in Asaga Council or chiefs;

3. The third Defendant agrees to nullify and has nullified the earlier rotation declared by him between the Plaintiffs and first and second Defendants’ family.

4. The third Defendant admits the claim of the Plaintiffs that the rights accruing to them are not rotational between them and any other paternal family particularly the family of the first and second Defendant, the Court refused to make item 5 the terms of settlement its judgment.”

With due respect to the learned trial Judge I am unable to agree with his lordship that the consent judgment of 4/10/2004 had any mandatory force. It requires a lot of struggle to extract forcefulness from its terms and wordings when it does not contain an additional order of injunction. I therefore hold that contempt proceeding cannot arise from such a judgment. I resolve this issue in the circumstance in favour of the appellants.

ISSUE THREE

Whether the trial Court had jurisdiction to proceed with the contempt proceedings and give ruling on same when a party to the proceedings was not served with the processes as conceded to by the learned trial judge.

Learned appellants’ counsel on this issue submitted that the lower Court could not assume jurisdiction to try any proceedings where a party was yet to be served with originating process. He relied on MARK V EZE (2004) 5 NWLR (PT 865), 54; SGBN LTD V ADEWUNMI (2003) 10 NWLR (PT 829), 526, WARRI PETROCHEMICAL COMPANY LTD V ONWO (1999) 12 NWLR (PT 630) at 312. He submitted that the lower Court rather than striking out the proceedings for want of jurisdiction merely discharged the 10th party sought to be committed for noncompliance with strict rules of service.

He urged the Court to resolve the issue in the negative as the whole proceedings was a nullity.

In his response, learned Respondents counsel submitted that improper service affected the person not properly served and not the entire proceeding. He submitted that the cases cited by the appellants counsel were inapplicable to this appeal.

On this issue, I hold with due respect that the submission of learned appellants’ counsel were not well taken. Failure to serve an originating process on a party affects the jurisdiction of the Court over the unserved party. In NATIONAL BANK OF NIGERIA LIMITED V GUTHRJE (NIG) LIMITED & ANOR (1993) 3 NWLR (PT 284) 643 a similar situation as in this appeal arose. One of the defendants was not served with an originating process. This was held to be a fundamental vice and that the Court lacked jurisdiction over the defendant that was not served (not the defendants that were served). According to Ogwuegbu JSC.

“The non-service of the writ of summons on the 1st defendant/respondent affected the jurisdiction of the Court………. The proceedings against the 1st Respondent should not have proceeded at all.”

I resolve this issue in favour of the Respondents. The learned trial Judge was in the right to have discharged the 10th party sought to be joined for non – service of original process and to have continued with the proceedings against the other parties that were served.

In the circumstance this appeal succeeds in part.

The ruling of the lower Court dated 25/5/2012 in HOH/10/2003 CHIEF EKE KALU IDIKA & ORS V OBASI IBEM OFFIA & ORS decided by High Court of Abia State is hereby set aside. I Order that the appellants are discharged. I also order that the appellants be repaid the fine they paid in lieu of imprisonment at the lower Court.

OREDOLA, JCA

I have read in advance, the lead judgment just delivered by my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA and I agree entirely with his reasoning and conclusions arrived at, in the said lead judgment and with which he resolved the salient issues raised for determination in this appeal. I must say that I have nothing to add. I also adjudge this appeal as having succeeded only in part. I also abide by the consequential orders made in the said lead judgment of my learned brother, Awotoye, JCA.

MBABA, JCA

I had the advantage of reading ahead of time, the lead judgment just delivered by my learned brother AWOTOYE JCA. My lord has dutifully identified and considered all the judgment issues in the appeal, admirably and I agree with his conclusions, completely.

Of course, the rules governing the committal of a person for contempt is always strictly constructed since the liberty of a citizen is at stake. Akpan v. Akpan (1996) 7 NWLR (Pt.462) 620. In the case of Chukwu v. Chukwu (2016) LPELR – 40953 CA, we referred to Anozia Onowu v. Ogbuagu ABC Ogooho & Ors CA/OW/104/2009 delivered on 6/1/16 (also (2016) 1 CAR 167) to the effect that:

“…Forms 48 and 49 are Court processes to be issued by the Registrar, upon application by the judgment creditor… every document that is served on an alleged contemnor must have the imprimatur of the Court and must not look or give impression it is coming from an individual or a private source (Mora & Ors v. Adeyeye (1990) 4 NWLR (Pt.142) 76). See also FCDA vs Koripamo Agary (2010) 14 NWLR (Pt.1213) 377, where it was held that any irregularity in procedure for committal is fundamental vice, which vitiates the entire application.”

The law requires personal service of the contempt proceedings, including Form 48 and 49, on the alleged contemnor, before the Court can assume jurisdiction over them. Failure to comply with this is fatal to the entire proceedings. See again Chukwu vs. Chukwu (2016) LPELR – 40553, FCDA Vs Koripamo – Agary (supra).

As stated by my learned brother Awotoye JCA in the lead judgment, the Appellants were not properly served with the contempt processes and the Forms 48 and 49 were not validly issued. I too allow the appeal and abide by the consequential orders in the lead judgment.