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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

24TH DAY OF MAY 2021                                                         SUIT NO: NICN/CA/28/2016

BETWEEN:

  1. Patriot Kate Odi (CRS Commandant)
  2. Patriot James Ochiche

(CRS Deputy Commandant)                                                    Claimants/Applicants

(For themselves and on behalf of

 Peace Corps of Nigeria)

AND

  1. Dominic Okweche
  2. Bissong Odu

For themselves and on behalf                              Defendants/Respondents

of Dominic Okweche Led

 Peace Corps of Nigeria

 

RULING.

  1. This deal with motion on notice dated 8/12/2020 and filed on the same day. The motion on notice was brought pursuant to Order 63 Rules 1 & 2 of the
    National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the court praying for an order of committal of the defendants for contempt of court in disobeying order of 16/11//2016. The motion is supported by a seven paragraphs affidavit sworn to by the 2nd claimant and two exhibits.
  2. Atim Egbe Atim, Esq; counsel for the claimants/applicants in oral adumbration relied on the depositions contained in the affidavit in support and the two exhibits attached therein, order of 16/11/2016 and charge No. MC/56C/2018, respectively.
  3. In the written address a lone issue was formulated for determination, to wit:-

"whether the Applicants are entitled to the grant of the reliefs sought in this application".

  1. In arguing the sole issue, counsel for the claimants/applicants answer in the affirmative that the applicants are entitled to the grant of the reliefs sought in this application. It is submitted that orders of courts are not made in vain. They are meant to be obeyed. And where an order is made whether valid or invalid, a disobedient of the court order amounts to contempt. In this case, the disobedience consists in the refusal of the respondents to comply with the order of this court after it was made. In support of this argument counsel relied on the case of Odogwu v. Odogwu (2013) 8 QRR 179. According to counsel the respondents have already treated the Order of this Courts made on 16/11/2016 with disregard, disdain, discourtesy and opprobrium.
  2. It is the submission of counsel that contempt of court exists to protect the dignity of the court in order to ensure that justice shall be done. It prohibits acts which tend to obstruct the due administration of justice, otherwise the right and indeed the liberty of individuals would perish.
  3. It is submitted that few weeks after the court has ordered that all parties to maintain status quo ante bellum, The 1s* & 2nd Respondents and their cohorts attacked the 2nd Applicant at Calabar and amputated his leg and also inflicted serious bodily injuries on him. And a few weeks after the 2nd Applicant recovered, the 1st & 2nd Respondents still resorted to securing the arrest, detention and arrangement/persecution of the 2nd Applicant and two others in charge No. MC/56C/2018 for an allegation of impersonation in-spite of the fact that the subject matter of this case is pending determination by this court. This is a serious affront to this court leading to interruption of the proceeding of this court. And for this the defendants/respondents deserve to be committed to prison for contempt for treating the order of this honourable court with disdain. Counsel urged the court to grant the application for committal as prayed.
  4. In reaction to the motion on notice for committal the defendants/respondents filed an 8 paragraphs counter-affidavit and a written address. Chris Ekong, Esq; counsel for the defendants/respondents in his oral submission placed relied on the depositions contained in the counter affidavit and adopts the written address as his argument in this matter.
  5. In the written address twin issues were formulated for determination. They are:-
  1. Whether this honourable court has jurisdiction to hear and determine this contempt proceedings;
  2. Whether the Applicants have proved that the Respondent contempted the orders of this honourable court.
  1. In arguing the two issues formulated for determination, counsel for the defendants/respondents posited that before a judgment or order of court can be enforced, the Judgment Creditor or party seeking enforcement has the duty to ensure that the judgment or order sought to be enforced complies with the provisions of Order 4 Rule 8 of the Judgment (Enforcement) Rules made pursuant to Section 94 of the Sheriffs and Civil Process Act Cap. S6 Laws of the Federation of Nigeria, 2004.
  2. It is submitted that committal proceeding is a proceeding against the   persons   of the   alleged   contemnors   who   are   the Respondents     in     the     instant    case.    The     committal proceedings ought to be filed within 2 (Two) years from the date the judgment or order allegedly contempted was made. See Order 4 Rule 8(1) of the Judgment (Enforcement) Rules.
  3. It is submitted by counsel that where    committal     proceedings    is    to    be commenced after 2 (Two) years from the date of the judgment or order sought to be enforced, the Applicant must obtain leave of the court which application for leave may be without notice to the Respondent. On this reliance was placed on Order 4 Rule 8 of the Judgment (Enforcement) Rules, and the case of Ojeme V, Momodu II (1995) 6 NWLR (Pt.403) 583 at Pp. 599 - 600 Paras. E - A, where it was held: that non-compliance with the provison of Order 4 Rule 8 of the Judgment (Enforcement) Rules made pursuant to the Sheriffs and Civil Process Law of Bendel State, is serious flaws to the committal proceeding.
  4. Counsel submitted that Applicants' Exhibit RC A, is the order of this honourable court allegedly disobeyed by the Respondents. The said order was made on 16th November, 2016. The Applicants' motion for committal was filed on 08/12/2020 - from 16/11/2016 to 08/12/2020 is 4 (Four) years 22 (Twenty-Two) days which is beyond the 2 (Two) years stipulated by Order 4 Rule 8(1) of the Judgment (Enforcement) Rules.
  5. It is submitted, In line with Order 4 Rule 8 (2) of the Judgment (Enforcement) Rules, Applicant must first sought for and obtain leave of court before this order can be enforced. Where such leave is sought and obtained a note thereof shall be made on the process. The Applicant did not seek for and obtained such leave therefore the motion for committal filed on 08/12/2020 carries no note that leave is obtain.
  6. It is submitted, obtaining leave of court prior to the instant committal proceedings is a condition precedent to the filing of valid committal proceedings. The condition having not been satisfied the court has no jurisdiction to hear and determine the instant motion filed on 08/12/2020. Counsel urged the court to so find and hold and strike out the Applicants' motion.
  7. Issue two: Whether the Applicants have proved that the Respondents contempted the orders of this Honourable Court.
  8. In arguing issue two; counsel submitted that contempt proceedings are quasi -criminal in nature. The Applicants have the burden to prove all allegations contained in the affidavit in support of the application. The degree of proof is a proof beyond reasonable doubt as in all criminal cases. In support of this contention counsel relied on the case of Qnagoruwa Vs. Adeniji (1993)5 NWLR (Pt.293) 317 at 339 Para. B; Ojeme V. Momodu II (1995)6 NWLR (Pt.403) P. 583 at 599 Para. E; and Odu Vs. Jolaoso (2003)8 NWLR (Pt. 823).P. 547 at 563 Para. E.
  9. Counsel submitted that the basis of this contempt proceeding is the order of this honourable court made on 16/11/2016, which is Applicants' Exhibit RC 'A'. the order read:

"The court, after hearing Atim E. Atim, Esq for the Claimant, Chris Ekong, Esq for the Respondents; Udenyi Iviong, Esq; for the party seeking to be joined, Orders all parties in this case to maintain the status quo ante bellum until this case is finally determined".

  1. It is submitted the operative part of this Order is "... all parties in this case to maintain status quo ante bellum". According to Black's Law Dictionary 8th Edition. ‘‘Status Quo Ante means; "the situation that existed before something else (being discussed) occurred".
  2. It is argued by counsel that the order allegedly contempted ordered all parties including the Applicants and the Respondents to maintain the situation that existed before something else occurred, that is to say, before the 2nd Applicant was arraigned before the Chief Magistrates Court of Cross River State on 23/01/2018 in Charge No. MC/56C/2018.
  3. Counsel submitted to  prove that the defendants/respondents disobeyed  the Judgment of this honourable court,  the applicants have the onus of proof as stipulated by the Court of Appeal decision in Onagoruwa V. Adeniji (1993)5 NWLR (Pt.293) 317 at  341 Paras. D - E where it was held:

"I would rather like to think that a counsel who is seeking an order of committal for contempt arising from an alleged disobedience of an existing court order should ensure that the depositions relate specifically to the order made by the court. This is important not only because it is the only way to prove the act or acts of disobedience, but because the proceedings call for the punishment of the contemnor. In my humble view the specific act or acts of the alleged contempt can only be deposed to in the affidavit by relating the conduct of the alleged contemnor to the order of the court with specific particularity".

  1. Counsel urged the court to consider the alleged act of contempt against the order allegedly contempted. The alleged act of contempt is on paragraph 4 of Applicants' affidavit which reads:

“4.  That in 2018, the Applicants in their usual disrespectful manner made a false allegation against the 2nd Applicant leading to the arrest, detention and prosecution of the 2nd Applicant and his officers (Two in number) in Charge No. MC/56C/2018 which is currently going on at the Chief Magistrate Court No. 4, Ikot Ishie, Calabar over an allegation of impersonation even when the subject matter of this case is to determine who is the lawful leader of the Cross River State Command of Peace Corps of Nigeria".

  1. It is submitted that the charge sheet in respect of which the 2nd Applicant was arraigned is Applicants' Exhibit RC "B". In Exhibit   RC   UB"   it   was Commissioner of Police Vs. Ochiche James ‘M' aged 36 years & 2 Ors. Exhibit RC’B' was signed by a Police Officer, SP Victor James.
  2. It is submitted that the Respondents have denied making allegation against the 2nd Respondent to the Police on paragraph 4 and 5 of their Counter-affidavit. The Respondents further deposed on paragraph 6 of this counter affidavit of how the  same  Chief Magistrates  Court of Cross  River State convicted and sentenced the 2nd Applicant to 2 (Two) years imprisonment for offence of impersonation. The judgment convicting the 2nd Applicant is Respondents' Exhibit 1.
  3. Counsel submitted that exhibit 1   was delivered on   22/02/2017. The alleged arraignment of 2nu' Applicant is on 23/01/2018 about   11   months   after   2nd Applicant's   conviction   and sentencing.    Assuming    but    not    conceding that the Respondents truly made complaint to the Police leading to the arraignment of 2nd Applicant via Exhibit RC "B" on 23/01/2018 by a court of competent jurisdiction, can the Respondents,   in   the   light   of exhibit 1 be   guilty   of contempt of the order of this honourable court made on 16/11/2016"? The answer is capital NO.
  4. It is the submission of counsel that the 2nd Applicant having been found guilty in Exhibit 1 for impersonation on   22/02/2017   cannot   now   complain   of disobedience     to     Order     where     the     2nd Applicant subsequently indulged himself in January, 2018 in the same act of impersonation.
  5. It is further submitted that the Respondents as citizens have duty to report commission of criminal offence to the Nigeria Police.  In the case of Fajemirokun V.  Commercial Bank (Nig) LTD (2009) ALL FWLR (Pt.487) P. 4 at 6 Paras, G - H, the Supreme Court held:

"Generally, it is the duty of citizens of this country to report case of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizen cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide" -see a/so Ourualcu V. Nwoke (2015)15 NWLR (Pi. 1484JP, 417 at 474 - 475 Paras. H - C; Atakpa V. Ebetor (2015)3 NWLR (PL 1447} P. 549 at 593 Paras. C - D; Udo V. ess/en (2015)5 NWLR (PL 14S1)P. 83 at 86; and Afri Bank (Nig) Pic V. Adigun (2009)11 NWLR (Pt.11S2)P. 329 at 350 - 351 Paras. H - A.

  1. It is submitted, even   where   the   Respondents   made   the   complaint in exercise of their civic duty to report crime to the Police, they cannot be held to have contempted orders of this honourable court.  What more,   as in the instant case, where the Respondents have vehemently denied reporting 2nd Applicant to the Police that gave rise to Charge No: MC/56C/2018.
  2. The charge was filed by the Police. Respondents are not the Police who filed the charge. Police has not been made a party to the instant committal proceedings. Police was not a party to the Order allegedly contempted.
  3. It is submitted with respect that, the Applicants have woefully failed to relate conduct of the Respondents to the order of the Court with specific particulars. What was the situation of things before now? What conduct of the Respondents is it that is contrary to the status quo ante bellum? All these gaps and links do not meet the requirement of law laid down by the Court of Appeal in the case of Onagoruwa V. Adeniji (supra).
  4. Counsel contended that curiously, the alleged disobedience to court order occurred before 23/01/2018, that is, before the arraignment of 2nd Applicant in Exhibit RC "B". The Committal proceedings was filed on 08/12/2020 a period of about 2(Two) years 11 (Eleven) months. Is it that the Applicant did not know that it was the Respondents who made complaint to the Police or it is part of Applicants' ploy to delay hearing of the substantive case?
  5. Counsel urged the court to find and hold that the Applicants have failed to prove allegation of disobedience of court Order by the Respondents.

COURT’S DECISION:

  1. I have perused the motion on notice for committal filed by the claimants/applicants as well as the supporting affidavit, counter-affidavit in opposition filed by the defendants/respondents.
  2. Having regards to the prayers contained in the motion papers, I am of the view that the issue calling for resolution is to determine ‘whether the claimants/applicants have established disobedience of the order of this court made on 16/11/2016, requiring the parties in this suit to maintain status quo ante bellum’’.
  3. The application before the court is praying for committal of the defendants/applicants for disobedience of court order made on 16/11/2016, exhibit RC A.
  4. This court like every court of record is imbued with requisite power to punish for disobedience of it its order, judgment or directives. The law relating to contempt of Court is a common law principle, which has been adopted in our Courts, and it is meant to help the Court regulate its proceedings, protect its integrity, observe/ensure effective administration of justice and impartially. Also, it is meant to give Court orders/decision, authority and force of law such that any disobedience is done at the peril of the disobedient party. See Odogwu Vs Odogwu (1992) NWLR (pt. 215); (1992) LPELR - 2229 (SC); Barnado Vs Ford (1892) AC 326; Awobokun Vs Adeyemi (1968) NWLR 259; Ezeji Vs Ike (1977) 2 NWLR (pt.486) 206." AZUBUIKE v. STATE (2017) LPELR-42485(CA).
  5. Therefore, it is the duty of the courts to protect and ensure that orders lawfully made are not rendered useless or nugatory by the action or conduct of the parties.
  6. The power of court to commit for contempt is necessary for effective administration of justice. Thus, the dignity and honour of Court cannot be maintained, if its orders are treated disdainfully and scornfully, without due respect. Orders of court are meant to be obeyed, even where one or all the parties disagrees with it. However, it should be noted that contempt of court should not be used by any of the parties or the court as an instrument of intimidation, harassment or subjugation of any of the parties before the court. It is equally not meant for use as a means of showing strength and power by the judge. See Shugaba V UBN Plc (1999) 11 NWLR (pt.627) 459; (1999) LPELR - 3068 (SC).
  7. In law, contempt of court has been classified into two types, see Order 63 Rule 2 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017. They are; contempt committed ex-facie curiae (outside the Court) and contempt committed in facie curiae (in the face of the Court). The former requires issuance of necessary forms (Forms 48 and 49), pursuant to Section 72 of the Sheriffs and Civil Process Act, and Order 9 Rule 13 of the Judgment Enforcement Rules, (where it involves enforcement of disobedience to Court orders/Rule). Where the contempt consists of disobedience of a Court process or obstruction of an official of Court in carrying out his lawful duties, it may be commenced by the procedure provided for by the Rules of court. See Nwawka Vs Ohazurike (2014) LPELR - 22558 CA; Dibia Vs Igwe (1998) 9 NWLR (pt.564) 78. If it is contempt committed in the immediate view and presence of the Court, such as insulting language or acts of violence or something hear the presence of the Court as to obstruct or interrupt the due and orderly course of proceedings, it is dealt with by the Court summarily. See Nwawka Vs Ohazurike (2014) LPELR - 22558 (CA) (pp. 31 - 33); Odu Vs Jolaoso (2005) 16 NWLR (pt.950) 178, where contempt was said to: "embrace such invidious acts as insult or unsavory comments with very sinister motives against a Court with a view to denigrating the Court and smear, besmirch its nobility, its majesty, its aura, its responsibility, or indulging in expressive sinister and offensive act or words that would lower the esteem of the Court in the eyes of the public.
  8. In the case at hand the contempt the court is being asked to punish is one committed ex-facie curiae (outside the Court). In this kind of contempt there is need for strict adherence to rules. In the case of Ogboni Vs. Ojah (supra), it was stated that failure to comply with the procedure for committal will vitiate the entire proceeding, this is because contempt proceedings are qua si criminal in nature, as they affect the freedom and liberty of the contemnor, the law and procedure are strictly applied and any slightest wrongful step taken shall vitiate the entire proceedings. See also, Oyeyinka Vs. Osagie (1994) 2 NWLR (Pt. 328) 617: Ezeji Vs. Ike (1997) 2 NWLR (Pt. 567)650. Also in the case of Akpan v. Akpan [1996] 7 NWLR (Pt.462) 620 at 626; it was held; the Law expected strict compliance with the procedural Rules and where there was the slightest deviation or non-compliance as in the instant case, a Court of law must exercise its discretion in favour of the contemnor. This is because the Law would not allow a gamble with the liberty of the individual. In F.C.D.A. v. Koripamo - Agary (2010) 14 NWLR (Pt.1213) 377, it was held that any irregularity in procedure for committal proceedings is a fundamental vice which vitiates the entire Application.
  9. Going by the above authorities and indeed Ikimi V. Omamuli (1995) 3 NWLR (Pt.383) 355 at 363 - 364 Paras; H - D and Uhunmwangho V. Okojie (1989) 5 NWLR (Pt.122) 471 at Page 482 - 486, although contempt proceedings by their nature are akin to criminal charges, they are still civil proceedings in which allegations of crime are made and the fact that the standard of proof beyond reasonable doubt applies, this does not ipso facto transpose same to a purely criminal proceedings more so where as in this case, the contempt is civil in nature and is regulated by the Sheriff and Civil Process Act/Law and the Judgment Enforcement Rules made there under.
  10. In the case at hand, the defendants/respondents have argued that there was no compliance with Order 4 Rule 8 of the Judgment (Enforcement) Rules made pursuant to Section 94 of the Sheriffs and Civil Process Act Cap. S6 Laws of the Federation of Nigeria, 2004. For proper appreciation the provisions of Order 4 Rule8(1) of the judgment Enforcement provides:

"8. Execution after two and six years

1,          As between the original  parties  process otherwise   than   against the   person,   may issue  at any  time   within  six   years,   and against the person at any time within two years, from the   date of the Judgment which is immediately sought to be enforced.

2.         After   such   periods   respectively   process shall not issue without leave of the court, but no notice to the Judgment debtor before applying for such leave shall be necessary.

3. Where leave is given, a note thereof shall be made on the process",

  1. It is clear from the above provision of Order 4 Rule 8 that for any order, judgment or direction of the court to be enforced by way of committal, the applicant must ensure that the processes are filed in compliance with Order 4 rule 8, i.e for the application for committal to be valid, it must be filed within two years of the making of the order alleged to have been disobeyed by the contemnor. See Order 4 Rue 8(1), (2) & (3) of the Judgment enfacement rules.  However, where the application was not filed within the time stipulated by the Judgment Enforcement Rules, the applicant must apply by motion ex-parte for leave of court to file the contempt application out of time. It is further required by the rules that a note should be made on the application for committal that leave of court has been sought and obtained.
  2. There is no disputing the fact that the current application was not filed within the two years required by the rules. There is also no endorsement to the effect that the applicant have sought and obtained leave to file their application out of time, before filing the contempt proceedings. A perusal of the case file also revealed that there was no application made before the court for extension of time to file the contempt proceedings out of time.
  3. In view of the foregoing, I agree with the counsel for the defendants/applicants that the application for committal having been made in disregard of the provisions of Order 4 Rule 8 of the Judgment Enforcement Rules is defective and irregular. Therefore, the application is nor competently before the court and is liable to be struck out, with this finding the committal proceedings shall terminate. However, this court being a court of first instance, I shall proceed to consider the merit of the case.
  4. From the facts disclosed in the affidavit in support of the motion on notice, the grouse of the claimants/applicants is that few weeks after the court has ordered that all parties to maintain status quo ante bellum, The 1s* & 2nd Respondents and their cohorts attacked the 2nd Applicant at Calabar and amputated his leg and also inflicted serious bodily injuries on him. And a few weeks after the 2nd Applicant recovered, the 1st & 2nd Respondents still resorted to securing the arrest, detention and arrangement/persecution of the 2nd Applicant and two others in charge No. MC/56C/2018 for an allegation of impersonation in-spite of the fact that the subject matter of this case is pending determination by this court.
  5. The above are summary of the facts that led the claimants/applicants to file the present contempt proceedings against the defendants/applicants. The law is trite that he who asserts must prove. The claimants/applicants having asserted that the defendants/respondents are guilty of contempt have the bounden duty of establishing that the defendants/respondents are guilty for contempt. The onus on the claimants/applicants is a heavy one as they are required to prove the allegation beyond reasonable doubt since it is a quasi-criminal proceeding.
  6. In an application for committal of a person for contempt on ground of disobedience of court order, like in the case at hand, the primary duty to show that the person has disobeyed order of the court lies in the applicant who is asserting or alleging such disobedience the standard of proof required to discharge this primary duty is the standard of proof in criminal cases, that is to say proof beyond reasonable doubt. This is because an application to commit a person for contempt (Civil or Criminal) is in the nature of criminal charge and the rules relating to criminal cases are therefore equally applicable to proceedings for committal of a person for contempt. See Abbas & Ors. V Solomon & Ors (2001) 7 SC (Pt.ii) 45, FCDA & Anor. V Koripamo – Agary (2010) LPELR-4148, Obatula & Ors. V Wilkey & Ors. (2007) LPELR-3187, Grema V Janyun (20 V Oyediran (1999) 12 NWLR (Pt.631) 481.
  7. In determining disobedience of order of court, the court is enjoined to examine the order allegedly disobeyed to see if the terms of the order have been violated. It is from the terms of the order that the court can discerned whether there is disobedience of the terms embodied in the order. See Uzoh V Hon. Minister of Works & housing and Urban Development & Anor.  (2913) LPELR-21248(CA), The determination of whether there is disobedience of a court order is from the order itself containing the terms.
  8. Exhibit RC A, is the order allegedly disobeyed. The terms as shown in the order are for the parties to maintain status quo ante bellum. The claimants/applicants in their affidavit have stated that few weeks after making of exhibit RC A, the defendants/respondents and their cohorts attached 2nd claimant and amputated his leg and also inflicted serious bodily injuries on him. And a few weeks after the 2nd Applicant recovered, the 1st & 2nd Respondents still resorted to securing the arrest, detention and arrangement/persecution of the 2nd Applicant and two others in charge No. MC/56C/2018 for an allegation of impersonation in-spite of the fact that the subject matter of this case is pending determination by this court.
  9. However, apart from the mere assertions, there is nothing before the court that indicted the defendants/respondents, no documentary evidence in form of doctor’s and police reports showing culpability of the defendants/respondents in the alleged purported attack on the 2nd claimant which resulted in the amputation of his leg and inflicting serious bodily injury on him. For these facts to be proved the claimants/applicants ought to have tendered or exhibited doctor’s and police reports indicating the extent of involvement of defendants/applicants in the alleged perpetrated acts. Exhibit RC B, the charge sheet filed before the Magistrate Court, which the claimants are relying on is not capable of proving contempt of order of 16/11/2016, as there is nothing on the charge sheet to show the involvement of the defendants/respondents in the alleged dastardly acts that resulted in arrest, detention and alleged persecution of the 2nd claimant/applicant.
  10. In view of this finding the claimants/applicants have woefully failed to establish by evidence beyond reasonable doubt as required by law that the defendants/respondents disobeyed order of the court made on 16/11/2016.
  11. The Court of Appeal in OBATULA & ORS V. WILKEY & ORS (supra) has held that, "an applicant for committal proceeding must exhibit the order of Court flouted by the respondent, because a judgment sought to be enforced by committal proceedings must contain a positive order, which can be a subject of a breach to warrant the proceedings. Secondly, there must be evidence of service on the respondent of the said order, a notice of consequences of disobedience of order of Court (form 48) and notice to show cause why an order of committal should not be made against the person (form 49) to show that the respondent was given the opportunity to obey or retrace his steps in the disobedience of the Court order. See NWOSU & ORS V. NZEADIBE (2010) LPELR 4897. Order IX Rule 13 Judgments (Enforcement) Rules Cap 407 Laws of the Federation 1990 make this requirement of service of the form 48 and 49 mandatory.
  12. The Court of appeal also held in OJEME V. MOMODU II (1998) 6 NWLR (pt. 403) 583 at 597, that this is "to ensure that a person being deprived of his liberty in respect of an order of judgment made in a civil litigation deliberately intended to flout the order of Court. Furthermore, the law and its rules are made to ensure that, that person is given an opportunity to retrace his steps by service on him of Forms 48 and 49. If he remains recalcitrant, then the Court will descend on him and commit him to prison." Thirdly, it must be stated by the applicant in his affidavit that the person ordered to do a particular thing has not done that thing or refused to do it even after being served with the order, a notice of consequences of disobedience of order of Court (form 48) and notice to show cause why order of committal should not be made against him (form 49). Evidence of all the above facts is sufficient to establish a prima facie case against the respondent or contemnor requiring him or her to adduce evidence to show that he has obeyed the order or explain why he has not obeyed the order. So once the applicant has discharged the primary duty to show that the respondents have not obeyed the said order, the evidential burden shifts to the respondent to show that he has obeyed the order or explain the reason for the failure or refusal to obey the order.
  13. In the case at hand the claimants/applicants have argued that it is not necessary to serve the defendants/respondents with form 49, since they have disobeyed the order of the court. This position is not in line with trite position of the law on service of form 49. It is also a clear indication that form 49 was never served on the defendants/respondents, thus why it was not exhibited to the affidavit in support of the application for committal. Since the claimants/applicants have on their own stated not having served the defendants/respondent with form 49, the entire application for committal is standing on a faulty ground and cannot stand.
  14. In view of al I have been saying above the claimants/applicants have failed in their duty to prove the allegation of contempt made against the defendants/applicants and the application for committal having not been made in line with the law is incompetent same is hereby refused.
  15. I make no order as to cost.
  16. Ruling entered accordingly.

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

Atim Rgbe atim, Esq; for the claimants/applicants

Chris Ekong, Esq; for the defendants/respondents.