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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD

 

DATE: JULY 18, 2024                                           

SUIT NO: /NICN/AWK/23/2023

 

BETWEEN

1.      R.O. Okoye Esq.

2.      Doctor Emmanuel C. Obiano

3.      Onuorah Lawrence

4.      Rose Okeke                                                                                       -                       Applicants

AND

1.      The Honourable Commissioner for Local

Government and Chieftaincy Matters/Chairman,

Joint Account and Allocation Committee (JAAC),

Anambra State.

2.      The Secretary, Joint Account and Allocation Committee

(JAAC), Anambra State

3.      Joint Account and Allocation Committee (JAAC),

Anambra State                                                                                 -           Respondents          

 

REPRESENTATION

Doris A. Udensi, Esq. for the Applicants.

C.J. Okonkwo okom for the Respondents.

 

RULING

INTRODUCTION

1.      The Applicant’s motion on notice brought pursuant to Order 63  Rule 2 of the National Industrial Court of Nigeria (NICN) (Civil Procedure) Rules 2017 (NICN Rules 2017) and under the inherent jurisdiction of this Honourable Court apply to this Court for an order for your committal to prison for having disobeyed the consent judgment order of this Court made on Wednesday the 17th day of May, 2023 in respect of Suit No. NICN/AWK/33/2023 in which you were defendants; requiring you, among other things, to ensure that the computations of the pre-retirement financial benefits of the claimant are made “before the 30th day of June, 2023”. And take further notice that you are hereby required to attend the Court on the aforementioned date to show cause why an order for committal to prison should not be made.

 

The Submissions of the Applicants

2.      The Applicant submitted a sole issue for determination, i.e.:

whether the respondents have committed an offence that should warrant their being committed to prison.

 

3.      The applicants submitted that on the 17th day of May, 2023 the applicants and the respondents and their counsel adopted their mutually agreed terms of settlement in respect of Suit No. NICN/AWK/33/2021 between the parties. Pursuant to Order 42 Rule 9 of the National Industrial Court (Civil Procedure Rules 2017, the terms of settlement were entered as the judgment of the Court with each of the terms settlement becoming the consent judgment order of the Court which the Court declared “shall be binding on the parties.” That in the consent judgment order of the Court, the respondents were, among other things, ordered to ensure that the computation of the pre-retirement financial benefits of the claimant are made “before 30th day of June, 2023.” Till date, the respondents have willfully and stubbornly refused to obey this clear order of the Court.

 

4.      To the applicants, in order to alert and warn them of the consequence of their contemptuous act, the applicants requested their counsel to write a reminding warning letter to them titled: “Notification of the Claimants’ Intention to Commence Contempt Proceeding Against You for Committal to Prison” dated 3rd August, 2023 and served on them same day (Exhibits B1 and B2); that notwithstanding this reminding warning letter from the Applicants’ Counsel, they have continued in their disobedience to a clear Court order; and are not ready at all to refrain from their act of disobedience.

 

5.      The applicants submitted that the respondents, by willful contemptuous act regarding the clear order of this Court on them, have shown that they have no iota of respect at all for this Honourable Court and should therefore be thoroughly dealt with in accordance with the provisions of the law on the offence of contempt of Court order without mercy, to serve as a deterrent to any persons who may want to emulate their example of disobedience to Court order, pursuant to Order 63 Rules 1 and 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, the applicants hereby pray the to issue an order of committal to prison for contempt against the respondents. It is apposite to state that the 1st and 2nd respondents who are the alter ego of the 3rd respondent are the masterminds of this contemptuous act of disobedience to Court order.

 

6.      The applicants continue that as at the time the aforementioned Court’s consent judgment order was made on Wednesday 17th day of May, 2023 and served two days later on Friday the 17th day of May, 2023on the respondents until the time this committal process was filed; at which time the willful contemptuous act of disobedience to a clear order of this Court still persists, the natural persons occupying the two juristic positions of 1st and 2nd respondents respectively (as well as being the alter ego of the 3rd respondent), and who really committed and have continued to commit the offence of contempt of Court and therefore should be committed to prison, are Mr Anthony Collins Nwabunwanne and Doctor Leopold Arinze Nwankwo. That even now, these two persons have not cared to make moves towards obeying the order. Evidently they are bent on treating every consent judgment order of the Court in respect of the aforementioned Suit No. NICN/AWK/33/2021 with absolute disdain an act that no Court of justice in the whole world will condone.

 

7.      In conclusion and having regards to all facts and argument, we have so far presented, it is the applicants’ submission that the respondents have committed an offence of willful and flagrant act of contempt of Court consisting of disobedience to a clear order of the Court; and should be dealt with by being committed to prison in accordance with the provision of the law to serve as a deterrent to other persons who may want to emulate their contemptuous act. The applicants pray the Honourable Court to so hold and accordingly commit them (sic) to prison for contempt of Court.

 

The Submission of the Respondents

8.      In reaction, the 1st, 2nd and 3rd defendants/respondents filed 13 paragraphs affidavit showing cause why the respondents will not be sighted (sic) for contempt of this Honourable Court in opposition to motion to commit them to prison. The affidavit was filed on 27 February 2024 and deposed to by Obumneme Obiekie, a litigation clerk in the chambers of the Attorney General/Commissioner for Justice, Anambra State. The respondents pray the Court for more time to perfect the judgment

 

Applicants Further Affidavit in Response to the Submission of the Respondents

9.      In response to the respondents affidavit, the applicants filed further affidavits of 13 paragraphs and reply on points of law wherein the applicants submitted that the subject matter of this applicants committal Suit No. NLCN/AWK/23/2023 (sic) against the respondents is their (respondents)disobedience to an order of this Honourable Court issued on the 17th day of May 2023 in a consent judgment in respect of Suit No. NLCN/AWK/33/2021 (sic) between the applicants (the claimants) and the respondents (then defendants); wherein the respondents were directed to ensure that the payment vouchers for the pre-judgment finance benefits of the applicants are prepared: “before the 30the day of June, 2023”- an order they have bluntly refused to obey up to this month of March 2024; that in their filed response to the applicants’ suit, the respondents raised issues that are worlds apart from the aforesaid subject matter of the applicants’ suit. It is apposite to state that the respondents have not denied and can never deny the facts in paragraphs 6, 7, 10 and 11 off the applicants ealier filed affidavit; that the law is settled that any evidence (affidavit or oral) not denied/refuted is deemed accepted by the party against whom it was made and therefore needs no further proof. See the cases of Owosho v. Dada (1984)7 SC 149 and Onyekan II and others v. Rossek (2009) LPELR-11906 (CA). That the 1st and 2nd respondents are in disobedience to the aforesaid order of this Honourable Court; and the law needs to take its course against them in accordance with Order 63 Rule 1 and 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017.

 

10. The applicants continued that this month of March 2024 makes it a 9-month period the 1st and 2nd respondents have knowingly and willfully been in stiff-necked disobedience to the order of this Court; that after being served the applicants’ committal suit, they have been boasting that they are “Powerful Agents of the Anambra State Government” and “will never” appear in person in any Court proceeding in respect of the suit, and that nothing will “happen” to them for disobeying the order of the Court; that it has been observed that Government and its agent are prone to reckless disobedience to Court order which is inimical to the society and rule of law. The need to protect the honour and integrity of this Honourable Court and the sanctity of the rule of law by committing the 1st and 2nd respondents (Mr. Anthony Collins Nwabunnwanne and Dr. Leopold Arinze Nwankwo respectively, who are agents of Government) to prison for their continued contemptuous act of stiff-necked disobedience to the order of this Court, is evident from the following pronouncements to the Supreme Court in the locus classicus case of Ojukwu v. Lagos State Government (1986) All NLR 233 where the action of Government in disobeying Court order, as in the instant case where the Anambra State Government Agents (1st, 2nd and 3rd respondents) are recklessly disobeying the order of this Court, was decried:

“If Governments treat order with levity and contempt, the confidence of the citizens in the Courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of the orders of Court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively.”

“The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens.”

“The Court system cannot be maintained without the willingness of parties to abide by the finding and orders of a competent Court until reversed on appeal. The presupposes that no party… can say: “I do not like the order made and I will not obey it.” And that is exactly what the Lagos State Government is doing in this case. And that posture has to be condemned in the strongest of terms if we are not to say goodbye to the rule of law.”

 

11. That in the instant case, on the 17 May, 2023 the 1st, 2nd and 3rd respondents who are agents of Anambra State were ordered by this Court to ensure that the payment vouchers for the pre-retirement financial benefits of the applicants are prepared: “before the 30th June, 2023” an order the 1st and 2nd respondents have refused obey up to this very month of March 2024; that they are re-enacting the contemptuous behavior of Lagos State Government to an order of the Court in the case of Ojukwu v. Lagos State Government (supra), which the Supreme Court decried and noted that if allowed by the Court: “will be the beginning of anarchy in replacement of the rule of law”; and that such act “has to be condemned in the strongest terms if we are not to say goodbye to the rule of law.” The claimants/applicants then pray the Court to “condemn” this obstinate and impertinent posture of the 1st, 2nd, and 3rd respondents (who are Agents of Anambra State Government) towards the order of this court “in the strongest of terms” by committing them to prison to serve as a deterrent to other person/s (sic) who may want to emulate their contemptuous act.

 

12. In conclusion, the applicant submitted that it is very clear that the respondents are knowingly and willfully disobeying the order of this Honourable Court; that they think that being Government Agents is a license for them to recklessly disobey Court order. It is the applicants’ argument and submission that they need to be called to order by being committed to prison. The applicants then pray the Court to so hold and accordingly commit them to prison.

 

COURT’S DECISION

13. I have carefully considered all the processes filed and the submissions of the respective parties. The raison d’etre of the claimant/applicant’s motion on notice and the order of committal sought from the Court against the defendants is the disobedience, neglect or deliberate refusal of defendants to comply with the consent judgment entered on the 17th May, 2023 by this Court in Suit No. NICN/AWK/33/2021; that the respondents on whom the consent judgment order was made an served have disobeyed and continued to disobey the order till date; including the aspect of the order requiring them to ensure that the computation of the pre-retirement financial benefits of the claimants are made before the 30 June, 2023. That in order to alert and warn them of the consequences of their contemptuous act, the applicants, on the 3rd August 2023, requested their counsel to write a reminding warning letter to the respondents. In reaction to the applicants application, the respondents’ affidavit for showing cause why the respondents will not be sighted for contempt of this Court stated in paragraph 4 of their affidavit; that the consent judgment entered in Suit No. NICN/AWK/33/2021 is well known to the respondents, they do not and will never disobey the order of this hallowed Court. That the 1strespondenthas sent a memorandum to the Governor of Anambra State seeking authorization and financial support to pay the huge sum in twelve installments considering the dire economic situation in the State at the moment.

 

14. On how to commence contempt proceedings, the Court of Appeal stated in Onowu v. Ogboko & ors (2016) LPELR-40074 (CA) PER Mbaba, JCA thus:

“…This Court in the case of Nwawka v. Adilkamkwu (2015) All FWLR (Pt. 804) 2064 spelt out the ways of commencing contempt proceedings, thus: “There is not only one way of commencing contempt proceedings. (a) where the contempt consists solely of disobedience of an order of Court, the only 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, i.e. by issuance of Forms 48 and 49…”

 

15. By Peoples Democratic Party & ors v. Barr Sopuluchukwu E. Ezeonwuka & anor (2017) LPELR-42563 (SC), the law, as established by the Supreme Court per Kekere-Ekun, JSC, is that in order to do substantial justice between the parties, the Court is entitled to look at its file or record and make use of the contents. See Funmudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210 at 229 E; Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378 at 411-412; Dunduk Eng. Ltd v. Mc Arthur (supra); Womiloju v. Anibire (2010) 19 NWLR (Pt. 1203) 545.

 

16. On requirements of personal service of process in committal proceedings, the Court of Appeal held in Udoji & anor v. Ukaeobu & ors (2017) LPELR – 41691 (CA) per Awotoye, JCA thus: 

“It is important at this stage to stress that service of processes under Order 9 Rule 13 of the above Rules must strictly be personal. See FCDA v. Koripamo-Agary (2010) 14 NWLR (Pt. 1213) 377. Substituted services is not acceptable under the said Rule. What is to be served on the alleged contemnor under Order 9 Rule 13? A copy of the drawn-up order endorsed with a notice in form 48… were the Respondents physically present at the time the judgment was delivered or were they represented?  If they were merely represented then strict interpretation of Order 9 Rule 13 of the Judgment Enforcement Rules they were absent and needed to be served with Form 48 and a copy of the order …once the drawn up order of the Court was not served, the entire committal proceedings collapse like a pack of cards.”

 

17. Page 29 of the case file in this suit indicates that Motion on Notice filed on7thSeptember 2023 was received in the Ministry of Local Government Chieftaincy and Community Affairs Hon Commissioner Office on 20 October 2023. The stamp narrating the name, designation, signature and date of the receiver of the original copies of Motion on Notice is blank. That means the name, designation, signature and date of the receiver of the original copies of motion on notice is not shown on the stamp. However, at page 30 of the case file,Felix Anachunam, the Court’s bailiff deposed to an affidavit that he served 1st defendant Motion on Notice on20th October 2023. The Affidavit of service is dated 20thOctober 2023. At page 33 of the case file, it is indicated that Motion on Noticefiled7th September 2023 was received by stamp of the Ministry of Local Government Chieftaincy and Community Affairs Hon. Commissioner Office on 20 October 2023 for 2ndrespondent – The Secretary, Joint Account and Allocation Committee (JAAC), Anambra State. The affidavit of service deposed to by Felix Anachunam on 20thOctober 2023 however, indicates that he served motion on notice on 2nd defendant on 20October 2023. At page 37of the case file, it is indicated that stamp of Joint Account and Allocation Committee (JAAC), Anambra State received Motion on Notice filed on 7th September, 2023 for 3rdrespondent in this suit. At page 38 of the case file however, Anachunam Felix, a bailiff deposed to an affidavit that he served motion on notice 3rd defendant on 20October 2023. On the affidavits of service of Motion on Noticeon1st, 2nd and 3rd defendants, there is indication therein that the Judgment Order was included in the process served on the office of the defendants.

 

18. As held earlier in Udoji & anor v. Ukaeolu & ors (supra), the law, as stated in Epundu v. Deodeme & ors (2014) LPELR-24072 (CA) per Oredola, JCA, is settled that before an alleged contemnor can be punished, the Court must be satisfied that the party or person sought to be indicted for contempt, has proper notice of the terms of the judgment or orders and that breach of the mandatory or declaratory or injunctive order has been proved beyond reasonable doubt. The case file indicated that the 1st, 2ndand 3rdrespondents were not personally served with any Motion on Notice. This service may be in line with Order 7 Rule 1 (1) (v) of NICN Rules 2017, but it does not certainly meet the requirements of personal service strictly demanded in contempt proceedings. I so find.

 

19. In Attorney General of Edo State & anor v. Churchgate Industries Ltd (2016) LPELR-41421 (CA), the Court of Appeal held per Bada, JCA that “what must be served is the Order endorsed with Form 48…There must be proof of personal service…” I am not satisfied that there is issuance of Motion on Notice on the respondents and that has not met strict requirements of the law on committal proceedings. Where there is the slightest deviation or non-compliance with rules, a Court of law must exercise its discretion in favour of the contemnor. I so hold.

 

20. The Applicant, in my humble view, has not shown that the legal conditions for the committal of the 1stand 2rdrespondents to prison have been established in this case. I so hold. This Application lacks merit and same is accordingly dismissed.

 

21. Ruling is entered accordingly. I make no order as to cost.

 

 

 

Hon. Justice J. I Targema, PhD