By O. G. Ogbom, Esq
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Contempt of a court’s order, may arise in manifold or a variety of circumstances and may be described as any conduct, act or omission which tends to undermine and to bring the authority and dignity of a Court of law and the administration of justice, generally, to disrespect. As was held in Abbas v. Solomon (2001) FWLR (67) 847, (2001) 15 NWLR (735) 114,
Committal proceeding, consists solely of disobedience of an order of Court or refusal to comply with court order and one of the acceptable procedure for commencing the proceeding is as provided in Section 72 of the Sheriffs and Civil Process Act and Order 9, Rule 13 of the Judgment (Enforcement) Rules, made pursuant to the Sheriffs and Civil Process Act.
Section 72 of Sheriff and Civil Process Act states as follows:
If any person refuses or neglects to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph (f) of section 66 of this Act, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit, to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.
Order IX Rule 13(1) of the Judgment(Enforcement) Rules provides that;
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.”
A careful reading of the provisions herein above, would reveal that there are conditions which must be fulfilled or satisfied before committal proceedings can be said to have been properly initiated, to wit:
- An order enforceable by committal under Section 72 of the Sheriffs and Civil Process Act must have been made.
- There must be an application by the judgment creditor for Forms 48 and 49 after two clear days of the service of Form 48, to be issued.
- The Registrar shall issue Form 48 endorsed with a copy of the order and serve same on the judgment debtor.
In law, it is trite that the competence of a court to hear and entertain an action in the exercise of its jurisdiction is determined if:
- a) It is properly constituted as regards the number and qualification of its members of the bench and no member is disqualified for one reason or another; and
- b) The subject matter of the action is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
- c) The case coming up before the court was initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. See SLB Consortium Ltd. V NNPC (2011) 9 NWLR (part 1252) page 317 at pages 329-330, paras. A-B, 336-337 paras G-A; Madukolu V Nkemdilim(1962) 2 SCNLR 341 at page 348.
It is also important to state that the issue of jurisdiction is fundamental to any court trial and therefore the question of whether a Court is competent to entertain an action before it can be raised at any time of the proceedings before the judgment is delivered and even for the first time on appeal, even at the Supreme Court. See Oloride v. Oyebi (1984) 5 S.C. 1; Aseimo v. Abraham (1994) 8 NWLR (pt. 842) 113; Pan Asian Co. Ltd V NICON (1982) 9 SC; Tukur V Governor of Gongola State (1989) 4 NWLR (part 117) 57.
Contempt of court is an offence sui generis. An application for committal for any disobedience of an order of court is a very serious matter, as it involves in most cases an exceptional interference with the liberty of a subject and therefore when any antecedent process has to be put in motion, every prescribed step and rule, however technical, should be carefully taken, observed and insisted upon. Any irregularity in the procedure for committal is a fundamental vice which vitiates the entire application. See also Aster v. Gachi (1997) 6 (NWLR) (pt. 510) 609; Boyo v. State (1970) 1 All NLR 318; Okwuosa v. Okwuosa (1973) 3 ECSLR 416.
Order 9 Rule 13 of the Judgment (enforcement) Rules, provides strictly for the “issue of a copy of the order endorsed with a notice in forms 48 and 49, the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons”.
In the case of Dikibo vs Ibuluya (2006) 16 NWLR part 1006 page 563 at page 567, the Court of Appeal held that by Order 9 Rule 13 of the Judgment (Enforcement) Rules, when an order enforceable by committal under section 72 of the Sheriffs and Civil Process 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 the notice in Forms 48 and 49 the copy as endorsed shall be served on the judgment debtor in the like manner as a judgment summons.
The law as pronounced in the cases cited above is that, in the issuance of Forms 48 and 49, the order of court which the alleged contemnor has allegedly disobeyed is not attached to the Forms but endorsed at the reverse side of Forms 48 and 49, it is fatal and irregular for the order to be attached to the Forms, if that is the case, any subsequent proceedings based on it will be set aside. See the case of Ikomi Vs Omanuli (1995) 3 NWLR Part 383 page 355 at page 362 paras. A-H.
It is for this reason, an application alleging contempt or to show cause has been regarded as a matter that is to be proved strictly and any defect or irregularity is a fundamental vice, which vitiates the entire proceedings for contempt. See Abbellesvs Gbadamosi (2003 13 NWLR part 83 page 533 paras. E-G Dikibo vs Ibuluya (2006) 16 NWLR part 1006 page 563 at pages 577-578 paras. G-A.
The seriousness with which the court handles non compliance with the provisions of Order 9 Rules 13 was made clear in the case of Akpan vs Akpan (1996)7 NWLR PART 462 Page 620 at page 626, My Lord, NikiTobi JCA (as he then was) held thus:
“Therefore, where there is the slightest deviation or non-compliance with the procedural rules, a court of law must exercise its discretion in favour of the contemnor. This is because the law cannot afford to gamble with the liberty of the individual.
From the position of the cases cited herein, the law is well settled that the non-compliance with the provision of Oder IX Rule 13 of the Judgment (enforcement) Rules which deals with the endorsement of order at the reverse side of Forms 48 and 49, will lead to a lack of jurisdiction and accordingly, the entire committal proceeding will be defective and liable to be set aside where the order of court sought to enforce is attached to Forms 48 and 49.
O. G. Ogbom, Esq, is a partner at Law Freight Attorneys, Port Harcourt.
He can be reached via ogbomgoodluck@gmail.com or ogbomg@lawfreightattorneys.com.
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