Nsa Hogan Nkute & Ors. V. Chief Eyo Edem Ita Ndem (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal against the Ruling of Binang, J. of the High Court of Cross River State, sitting at Calabar in Suit No. HC/MISC/63/96 delivered on the 6/4/98, wherein the respondent was granted leave to prosecute his case in a representative capacity against the appellants.
The respondent had instituted proceedings against the appellants in Suit No. 210/25: Utang Nyok Esu v. Ekpeyong Ekpenyong Eyo II, before the Creek Town District Court in 1925 claiming ownership of Nyok Eyo land, lying and situate at Edik Iko, Creek Town, in Odukpani Local Government Area of Cross River State. Judgment was given in favour of the Eyo Ndem House. The present respondent alleged that the appellants trespassed into the land which title was given to Eyo Ndem House by the Creek Town District Court in Suit No. 210/25. Sequel to this, the respondent filed a motion ex parte before the trial court on 26/3/96, praying for an order granting leave to them to prosecute the case against the appellants in a representative capacity. The case was for contempt proceedings against the appellants for trespassing into the land which title was given to Eyo Ndem House by Creek Town District Court in Suit No. 210/25. The trial court granted the prayers of the respondent in Suit No. HC/MISC/63/96.
Dissatisfied with the ruling of the trial court, the appellants appealed to this court on one ground. The ground of appeal is as follows:
“Ground of Appeal
“The learned trial Judge erred in law in granting leave to the respondent to prosecute against the appellants/applicants in a representative capacity.”
From the lone ground of appeal the appellants in their brief dated 18/6/07 and filed on 19/6/07, raised four issues for determination as follows:
“i. Whether the applicants (now respondents) in Suit No. C/MSC/63/96 can bring an application by way of a motion to convert a 75 year old suit into a representative capacity?
ii. Can the judgment of a court in which the other members of the community/family were not parties be binding on them?
iii. Whether the applicants can bring contempt proceedings against the other members of the community as a whole then they were not parties to the action and the judgment of the Creek Town District Court in Suit No. 210/25?
iv. Did the respondents show that the land in question was communal land as to warrant the order granted?
The respondent in his brief dated 17/5/08 and filed on 19/5/08 raised a preliminary objection to the appeal at page 2 of the brief. At page 3 of the brief the respondent distilled one issue for determination. The issue is as follows:
“Whether the lower court which granted approval for the respondents to prosecute the action in representative capacity against the appellants was in (sic) duty bound to consider the rights of the parties at that stage of the case and whether the court infact determined the rights of the parties.”
Upon being served with the respondent’s brief, the appellants responded by filing an appellants’ reply brief. The parties adopted and relied on their respective briefs of argument for the determination of this appeal.
On Issue No.1, learned counsel for the appellants, Mr. F. A. Esu, submitted that the present appellants not being parties to Suit No. 210/25 which was filed and prosecuted in individual capacity, the respondent ought not to have been given leave to bring Suit No. HC/MISC/63/96, in a representative capacity having failed to prove that the land in dispute in Suit No. 210/25 is family land and that the matter was never prosecuted in a representative capacity. Counsel then questioned whether a matter prosecuted in a personal capacity can be amended by way of a motion to a representative capacity. Relying on the case of Okomu Oil Palm Co. Ltd. vs. Iserhienrhien (2001) FWLR (Pt. 45) 670 at 690, counsel submitted that matters adjudged in a court do not prejudice those who were not parties to it. He argued further, that given that the present appellants were not parties in Suit No. 210/25, they cannot be convicted for contempt and moreover, that it is wrong to now convert the case into a representative capacity by a mere motion. In arguing Issues 2, 3 and 4 together, Mr. Esu submitted that the respondent’s claim that the land in dispute in Suit No. 210/25 is theirs is the same as the one which the appellants have been in possession for over 80 years. The respondent having stood aside for such a long period of time without gaining possession, they cannot now be heard to complain that the appellants had disobeyed the order of the District Court in Suit No. 210/25 in a judgment delivered in 1926. Mr. Esu also submitted, that where a person is not a party to a suit, he is not bound by the outcome of a litigation when he did not have the opportunity to state his own side of the case in the matter. Therefore, the present appellants cannot be bound by the decision which they were not privy. He relied on Unibiz Nig. Ltd. vs. C.B.C.L. Ltd. (2003) FWLR (Pt. 152) 91 at 93 and Udo vs. C.R.S.N.C. (2002) FWLR (Pt. 104) 665 at 693 – 694. Learned counsel submitted also that the respondent cannot bring contempt proceedings against the appellants in this matter because they cannot be said to have taken part in the Suit No. 210/25 and as such cannot be made to suffer jeopardy for what they were not a party to. He referred to Okomu Oil Palm Co. Ltd. vs. Iserhienrhien (supra).
He also contended that the respondents failed to prove their connection to either of the parties in Suit No. 210/25. There was no evidence that the present respondent was the head of their family. Furthermore, in the motion, the respondent did not sue the present appellants in a representative capacity, yet the court while making its order stated so, thus further changing, suo motu, the complexion of the case.
Mr. Esu concluded, that the trial court ought not to have admitted the record of proceedings of the Creek Town District Court in Suit No. 210/25, Exhibit B, because it was certified at the registry of the High Court, Calabar. He concluded that only the Director of Archives can certify such document. He referred to Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 96; Alao vs. Akano (2005) 11 NWLR (Pt. 935) 160; Saraki vs. Kotoye (1992) 9 NWLR (Pt.264) 156 and Osho vs. Ape (1998) 8 NWLR (Pt. 562) 492.
Learned counsel for the respondent, Mr. Uno, in moving the preliminary objection submitted that the appellants cannot raise issues of facts and law relating to the main case between the parties at the trial court in this appeal because the issues were not canvassed at the court below and this court is not competent to consider or adjudicate on issues not supported by evidence legitimately led by the parties at the trial court. He relied on Ojoh vs. Kamalu (2006) 136 LRCN 130; NBCI vs. Int. Gas Ltd. (2005) 125 LRCN 614 at 618 and C.A.S. vs. Iyen (2005) 125 LRCN 678 at 685.
It was also contended that the sole ground of appeal that the learned trial Judge erred in law in granting leave to the respondent to prosecute against the appellants in a representative capacity is not a sustainable ground of appeal.
In the alternative, learned counsel for the respondent submitted under their Issue No. 1 that the trial court is not expected to consider the legal rights of the parties in the ex-parte application rather it merely granted approval to the applicants to prosecute the matter in the name of the family or community. He also submitted that the authority to prosecute the action in representative capacity is vested in the family or community. Counsel pointed out that the main reason in seeking leave of court to bring and maintain representative action is to state clearly the class of persons to be covered by the approval. He relied on Markt & Co. Ltd. vs. Knight Steamship Co. Ltd. (1910) 2 KB 1021 at 1034 and Onyenuzo &. Ors. vs. Okoli (1973) 3 ECSLR 150 at 152. He contended that the respondent’s application before the trial court was brought under Order 11 Rule 16 of the High Court (Civil Procedure) Rules of Cross River State, 1987, which did not envisage the determination of the appellants’ right at the hearing of the motion ex-parte.
Learned counsel for the appellants, in the appellants’ reply brief, submitted that the respondent instead of proffering answer to the issues for determination raised by the appellants went on a voyage of shadow chasing. He contended that the preliminary objection raised by the respondent offends the provisions of Order 10 Rules 1 and 3 of the Court of Appeal Rules, 2007, because they did not give any notice of the preliminary objection and the grounds of the objection are not clearly stated. It was also contended that the ground of appeal filed is a ground of law and the respondent failed to answer them. Relying on FRN vs. Odua Investment Co. Ltd. (2002) FWLR (Pt. 123) 226 at 240 and B. J. Export & Chemical Co. Ltd. vs. Kaduna Refinery & Petro Chemical Co. Ltd. (2003) FWLR (Pt. 165) 445 at 457 – 458, Mr. Esu concluded that the law does not permit the respondent who has not cross-appealed or filed a respondent’s notice to state a different issue from that of the appellants and the respondent is bound by the ground and issues raised by the appellants.
I have carefully perused and reflected on the issues raised in the briefs filed, adopted and relied upon by the parties in this appeal. I shall proceed to consider the preliminary objection to the appeal first.
Whenever the issue of jurisdiction of the court is raised it should be dealt with in limine or timeously because any proceedings taken in the absence of jurisdiction are null and void ab initio, no matter how well conducted. See Dangtoe vs. C.S.L. Plateau State (2001) 4 SCNJ 131; Galadima. vs. Tambai (2000) 11 NWLR (Pt. 677) 1; Adekanye & Ors. vs. Comptroller of Prisons (2000) 12 NWLR (Pt. 682) 563.
The appellants in their reply brief attacked the preliminary objection on the ground that it offends the provisions of Order 10 Rules 1 and 3 of the Court of Appeal Rules, 2007. The provision is set out below:
“1. A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.
- ………………………………
- If the respondent fails to comply with this Rule, the court may refuse to entertain objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit.”
The appellants contended that the respondent did not give the mandatory notice and he did not clearly state the grounds upon which the objection is raised. The provisions of Order 10 Rules 1 and 3 enjoins a respondent intending to rely on a preliminary objection to give the appellant three clear days before the hearing of the appeal by filing a notice of preliminary objection. Order 10 Rule 3 of the Rules provides for flexibility and it gives the court the discretion on whether or not to entertain an objection which does not comply with the Rules. The object of Order 10 Rule 1 is to give sufficient notice to the adverse party so that he would have good opportunity to react to the objection and to avoid element of surprise to the adverse party. In the instant appeal, the respondent’s preliminary objection was incorporated in his brief filed and served on the appellants on 19/5/08. Apparently, the appellants had ample time to react to the preliminary objection and this is evident in the fact that the appellants reacted to the preliminary objection in their reply brief filed on 22/10/08. This appeal was heard on the 15/1/09. It is therefore clear as crystal that the appellants had more than 3 days notice contemplated by Order 10 Rule 1 of the Court of Appeal Rules. The preliminary objection is proper and valid. See FRN vs. Obegolu (2006) 18 NWLR (Pt. 1010) 182 at 217 – 218 and Agbaka vs. Amadi (1998) 11 NWLR (Pt. 572) 16.
On the issue of the respondent setting out the grounds of objection clearly, it is my view that the appellants are right in their observation and objection. However, even though the grounds of the objection are poorly and inelegantly stated in the brief, it is possible to identify them. I shall therefore proceed to consider it.
A cursory glance at the preliminary objection raised, reveal that there are three issues in contention. Firstly, the respondent stated that the appellants cannot raise issues of facts and law relating to the main case between the appellants and the respondents at the lower court in this appeal because those issues were not canvassed at the lower court and this court is not competent to consider or adjudicate on the issues not supported by evidence led by the parties at the trial court. He referred to Ojoh vs. Kamalu (supra); NBCI vs. Int. Gas Ltd. (supra) and C. A. S. vs. Iyen (supra).
Secondly, that the sole ground of appeal did not provide any particulars of error of law or facts.
Thirdly, that the ground of appeal filed by the appellants is not sustainable.
In the appellants’ reply brief, Mr. Esu submitted that what transpired in the court below is an error in law which the appellants are entitled to raise in this appeal and the facts cannot be easily divorced from the law. It was also contended that the respondent failed to address the issues raised by the appellants and it is totally unconnected with the appellants’ ground of appeal. Relying on FRN vs. Odua Investment Co. Ltd. (supra) and B. J. Export & Chemical Co. Ltd. vs. Kaduna Refinery & Petro Chemical Co. Ltd. (supra), counsel submitted that the law does not permit the respondent to raise issues different from that of the appellants. The respondent is strictly bound by the ground of appeal filed by the appellants and the issues raised.
On the first issue raised in the preliminary objection, it is my considered opinion that the ground of appeal filed by the appellants deals with error in law. Although it is difficult to distinguish a ground of law from a ground of fact, what is required is to examine thoroughly the ground of appeal in the case concerned to see whether the ground reveals a misunderstanding of the law by the trial court or a misapplication of the law or the facts already proved or admitted, in which case it would be questions of law, or one that will require questioning the evaluation of the facts by the trial court before the application of the law, in which case it would amount to question of mixed law and fact. See Ogbechie vs. Onochie (1986) 2 NWLR (Pt. 23) 484 at 495; Maduabuchukwu vs. Maduabuchukwu (2006) 10 NWLR (Pt. 989) 475 at 495; Excel Plastics Ind. Ltd. vs. FBN Plc. (2005) 11 NWLR (Pt. 935) 59 at 93 – 94 and Leaders & Co. Ltd. vs. Kusamotu (2004) 4 NWLR (Pt. 864) 519. A ground of appeal questioning or showing a misunderstanding of the law by the trial court, as it is in the instant appeal, is a ground of law.
Secondly, the ground of appeal framed by the appellants is a good, proper and a valid ground of appeal, it is therefore sustainable and maintainable.
On the issue of the ground of appeal not having any particulars of error, it is my considered view that the ground of appeal filed by the appellants reflects the error in law clearly and succinctly so much so that it is easy for the court and the respondent to appreciate the nature and purport of the complaint being made against the judgment appealed against and so prevent any element of surprise. The particulars of error may be embodied in the ground of appeal itself, provided the ground is framed in such a way as to leave no one in doubt of the error complained about.
In Ilori vs. Tella (2006) 18 NWLR (Pt. 1011) 267 at 284 – 285, Fabiyi, JCA, eloquently stated the current position of the law, when he held that:
“It is no longer the law that once a ground of appeal alleges error in law and or misdirection the passage of the judgment concerning same must be quoted.”
Also in Ukpong vs. Commissioner for Finance (2006) 19 NWLR (Pt. 1013) 187, Onnoghen, JSC, in his usual erudity had this to say at page 211:
“Although an appellant is required to give particulars of error(s) of law in a ground of appeal complaining of error in law, it is not every failure to do so that will render the ground so couched incompetent, particularly where sufficient particulars can be gleaned from the ground of appeal in question and the respondent and the court are left in no doubt as to the particulars on which the ground is based.”
In the instant appeal the ground of appeal even without particulars sufficiently informed the court and the respondent of the complaint of the appellants. See Koya vs. UBA (1997) 11 NWLR (Pt. 481) 251; Ashiru vs. Ayoade (2006) 6 NWLR (Pt. 976) 405 at 421 – 422; Anadi vs. Okoli (1977) 7 SC 57 and Amao vs. Aderibigbe (1994) 2 NWLR (Pt. 324) 92.
I see no merit in the preliminary objection raised and it is hereby overruled and discountenanced.
Secondly, the issue for determination framed by the respondent is at variance with and unrelated to the ground of appeal filed by the appellants. It is well settled law that a respondent cannot formulate an issue which is divergent and not derivable from the grounds of appeal filed, except where he has filed a cross-appeal or a respondent’s notice. In FRN vs. Odua Investment Co. Ltd. (supra), it was held that:
“Issues framed by a respondent who did not cross-appeal must relate to the grounds of appeal filed by the appellant, where they do not relate, they are incompetent.”
In Ezenwaju vs. UNN (2006) 3 NWLR (Pt. 967) 325, this Court held:
“A respondent to an appeal must confine himself within the issue arising from the grounds of appeal filed by the appellant. Any issue raised in an appeal which does not flow from the grounds of appeal must definitely be struck out.”
Thus, where a respondent has not filed a cross-appeal or given a respondent’s notice, he does not have an unrestrained or unbridled freedom to raise issues for determination which are divergent or which have no relevance to or relationship with the grounds of appeal filed by the appellants. He has no business in framing issues outside the ground of appeal filed by the appellants. See Effiong vs. Ebong (2006) 18 NWLR (Pt. 1010) 109 and Ossai vs. Wakwah (2006) 4 NWLR (Pt. 969) 208.
In the circumstances, the issue for determination formulated by the – respondent and the arguments on it are hereby struck out.
Before going into the substance of this appeal, it is important that I deal with an ancillary issue now. It is observable that the appellants filed a lone ground of appeal, but raised four issues from the lone ground. Issues formulated must correlate with the grounds of appeal. It is bad and deplorable for a party to formulate more issues than the grounds of appeal, because issues must be married to the grounds of appeal. An issue for determination ordinarily may be formulated from one ground of appeal or from more than one ground of appeal. However, where there is a proliferation or prolixity of issues in a brief, the court merely rebukes or reprimands or cautions counsel. The party does not suffer any serious sanction or penalty. Such issues will only be discountenanced as going to no issue. The court will regard them as merely an excess load. See UPS Ltd. vs. Ufot (2006) 2 NWLR (Pt. 963) 1 at pages 19 – 20; Consolidated Breweries Plc. vs. Aisonuleran (2001) 15 NWLR (Pt. 736) 424; Onwo vs. Oke (1996) 6 NWLR (Pt 546) 584; A-G, Akwa Ibom State & Ors. vs. Essien (2004) 7 NWLR (Pt. 872) 288 at 317 and Ukpo & Ors. vs. Imoke & Ors. (2009) 1 NWLR (Pt. 1121) 90 at 120.
A careful perusal of the issues for determination formulated by the appellants reveal that Issue No.1 adequately deals with the complaints arising from the sole ground of appeal. I shall therefore adopt Issue No. 1 of the appellants for the determination of this appeal.
The main issue in this appeal is whether the trial court was right to grant leave to the respondent to prosecute the appellants for contempt proceedings in a representative capacity.
In other to appreciate the instant case on appeal, it is necessary to refer to the motion ex-parte filed by the respondent at the court below and the affidavit in support of the motion which are at pages 1 and 2 of the record of appeal.
“Motion Ex-Parte
- An Order granting leave to the plaintiffs/applicants to prosecute the case against the defendants/respondents in a representative capacity.
- For any other or further order or orders as the court may deem fit to make in the circumstances of this case.”
“Affidavit in Support of Motion
I, Chief Eyo Ndem Ita Eyo Ndem, male, Christian, Nigerian citizen, family Head of Eyo Ndem House, Creek Town, now residing at 14 Eyo Ndem Street, Calabar, Cross River State, Federal Republic of Nigeria do hereby make oaths and state as follows:
- That I am the plaintiff/applicant on record.
- That I am the Family Head of Eyo Ndem House in Creek Town, Odukpani Local Government Area, Cross River State.
- That the entire members of Eyo Ndem House have mandated me to bring contempt proceedings against the defendants/respondents for trespassing onto the land which title was given to Eyo Ndem House by Creek Town District Court in Suit No. 210/25.
- That the resolution authorizing me to prosecute this suit for and on behalf of Eyo Ndem House was taken at the meeting of the House held at Eyo Ndem Street, Calabar, on the 1st of December, 1995.
- That the resolution taken at the meeting is Exhibited hereto and marked A.
- That I swear to this affidavit conscientiously believing the same to be true and correct and in accordance with the Oaths Act, 1990.”
Paragraphs 3 and 4 of the supporting affidavit reproduced above are very germane to the determination of the instant case on appeal. The main objective of the respondent for the motion ex-parte was to enable them to bring contempt proceedings against the present appellants for trespassing onto the land which title was given to Eyo Ndem House by the Creek Town District Court in Suit No. 210/25.
From what can be gleaned from the record at page 14, the parties in Suit No. 210/25 were:
Utang Nyok Eyo vs. Ekpenyong Ekpenyong Eyo II
There is nothing on the record to suggest or indicate that the suit was fought on the basis of a representative capacity before the Creek Town District Court. We are bound by the record. Before the Creek Town District Court, the respondent did not show that he had the authority of any family member or community to bring the action. See Mozie vs. Mbamalu (2006) 12 NWLR (Pt. 1003) 466 at 531 – 532.
An aspect of the law on representative action is that the persons who are to be represented and the person representing them must have the same or common interest and a common grievance. In the instant appeal there is no scintilla of evidence to show that the parties had any common interest or common grievance. It is therefore clear that the case in Suit No. 210/25 was not fought in a representative capacity. See Adeleke vs. Anike (2006) 16 NWLR (Pt. 1004) 131 at 163; Nwangwuna vs. Ikyande (1992) 8 NWLR (Pt. 258) 192. For an action to lie in a representative capacity, the following must exist:
(a) there must be a common interest;
(b) there must be a common grievance; and
(c) the relief claimed must be beneficial to all.
See Onogbade vs. Onitiju (1962) 1 SCNLR 70; Adediran vs. Interland Transport Ltd. (supra) and Adefulu vs. Oyesile (1989) 5 NWLR (Pt. 122) 377.
Ordinarily, a representative suit would be deemed in order if there is a common interest or a common grievance and the relief sought is such that would be for the benefit of all sought to be represented by the plaintiff.
However, there is nothing in Suit No. 210/25 to suggest that the suit was prosecuted in the common interest of any Family or Community. Suit No. 210/25 was prosecuted before the Creek Town District Court on a personal or individual capacity.
At this juncture, it becomes necessary to examine the position of the present appellants. From the record of proceedings of the Creek Town District Court, the present appellants were not parties in Suit No. 210/25 which was heard at the Creek Town District Court, therefore, they had nothing to do with that suit. Matters adjudged in a court do not prejudice those who were not parties to it. It is very well settled law that where a person is not a party to a suit he is not bound by the outcome of a litigation when he did not have the opportunity to state his own side of the case in the course or matter. This is based on the principle of law encapsulated in the latin maxim, “res inter alios judicata nullum alis praejudicium faciunt” i.e, matters adjudged in a cause do not prejudice those who were not parties to it. See Okomu Oil Palm Estate Ltd. vs., Iserhiemrhien (supra).
One of the main reason which makes it necessary for a person to be joined as a party to an action is so that he should be bound by the result of the action. See Green vs, Green (1987) 3 NWLR (Pt. 61) 48 and Okoli vs. Ojiakor (1997) 1 NWLR (Pt. 947) 48. It is therefore clear that the present appellants, not being parties to the action in Suit No. 210/25, cannot be bound by the result of the action.
Now, can the respondent enforce the judgment in Suit No. 210/25 against the present appellants? The answer must be in the negative. At this juncture, it becomes necessary to determine who is a contemnor. A contemnor is one who has committed contempt of the court. He is a person to whom an order of the court of competent jurisdiction is directed to do or restrain from doing an act and who in defiance or seeking one subterfuge or the other refuses to comply with the order so made. See Odu vs. Johnson (2005) 16 NWLR (Pt. 950) 178 at 191,192 and 194.
In other words, a contemnor is one who has committed contempt of court. Now, can any of the appellants be considered as contemnors, when they were never parties to Suit No. 210/25. The answer is a resounding No. The appellants not being parties to Suit No. 210/25, which was prosecuted in a personal capacity, cannot now be made parties in Suit No. HC/MISC/63/96. The motion ex-parte praying for an order granting leave to the respondent to prosecute the case against the appellants in a representative capacity is unwarranted and unsupportable. It is clearly calculated to over reach the appellants and the said court order had the effect of converting a case that was prosecuted in a personal capacity into one in a representative capacity, simply for the purposes of bringing contempt proceeding against the appellants for trespassing onto the land which was allegedly given to Eyo Ndem House by the Creek Town District Court in Suit No. 210/25.
The motion ex-parte in Suit No. HC/MISC/63/96 is a glaring testimony showing that the original suit was not prosecuted in a representative capacity. If that were so, then the motion would have been quite unnecessary. Moreover, in paragraph 4 of the supporting affidavit in the motion, the respondent averred that the resolution authorizing the respondent to prosecute the suit for and on behalf of Eyo Ndem House was taken at a meeting of the house held at Eyo Ndem Street, Calabar, on the 1/12/95. The resolution taken at the meeting was attached to the supporting affidavit as Exhibit A. If Exhibit A was made in 1995, then it clearly means that there was no such resolution made in 1925 when Suit No. 210/25 was filed at the Creek Town District Court.
Furthermore, it is significant to note that whereas there is a resolution by the family of the respondent which was filed and annexed as Exhibit A to Suit No. HC/MISC/63/96, the respondent did not attach any resolution made by the – appellants’ family choosing them as their representatives. In Akporue vs. Okei (1973) 12 SC 137, the Supreme Court held that before a court can make a representation order compelling a party to defend on behalf of a group or family, it must be clearly established that such a party not only has the same interest as the group or family in the subject-matter, but also that he is in a position to represent the interest of the group or family as the case may be. See also Ayeni vs. Sowemimo (1982) 5 SC 60 and Obiode vs. Orewere (1982) 1 – 2 SC 170.
Apparently, the present appellants were selected and herded together – without any consultation with their family or community and of course, no resolution was made by the family or community to defend. This is very wrong and it is an infringement of the appellants’ right to fair hearing guaranteed under section 36(1) of the 1999 Constitution. See Ndukauba vs. Kolomo (2005) 4 NWLR (Pt. 915) 411. Fair hearing within the meaning of section 36(1) means nothing less than a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It envisages the age-long accepted principles of compliance with the principle of natural justice in its narrow technical sense of the twin pillars namely: audi alterem partem ad nemo judex in causa sua.
An important essence of the right of fair hearing is that a party should not be denied, not only the opportunity of fully presenting his case but must be afforded full opportunity to present his defence to the question being put against his case. The right to fair hearing does not stop with parties being present in court. It also includes a right to be heard at any material stage of the proceedings. See Tunbi vs. Opawole (2002) 2 NWLR (Pt. 644) 275; Odessa vs. FRN (2005) 10 NWLR (Pt. 934) 528; Kasunmu vs. Shitta-Bey (2006) 17 NWLR (Pt. 1008) 372 and Wappa vs. Mourah (2006) 18 NWLR (Pt. 1010) 18.
The hearing of an application for committal of a person disobeying a court order is in the nature of a criminal proceeding. Therefore, the necessary procedural requirements must be strictly followed. Since such application affects the liberty of the subject, it is always regarded by the courts as a matter of strictissimi juris. See Nya vs. Edem (2005) 4 NWLR (Pt. 915) 345 at 371. The court below should have found out if the present appellants were parties in Suit No. 210/25 which was heard and determined by the Creek Town District Court and whether they did disobey any court order before granting leave to the respondent to prosecute the appellants for contempt of court.
The appellants had no opportunity of contesting the case which resulted in the making of an order that they be prosecuted for contempt of a judgment they were not party to. They were also not given an opportunity of making their own representation. As the appellants were not party to Suit No. 210/25, it is clearly wrong to prosecute them for contempt. See Onwunalu & Ors. vs. Osademe (1971) Vol. 7 NSCC 13 at 15 and Adediran vs. Interland Transport Ltd. (1991) 9 NWLR (Pt. 214) page 155.
Ordinarily, a party may apply for leave to sue in a representative capacity but it is rather strange that the respondent prosecuted the suit in Suit No. 210/25 on a personal capacity and then applied to enforce the judgment in a representative capacity. That is an attempt to stand justice on the head. The trial court by granting the application of the respondent to prosecute the appellants for contempt proceeding, did not exercise its discretion judiciously and judicially and it led to a gross miscarriage of justice.
Suit No. 210/25 was not prosecuted in a representative capacity and it was not defended in a representative capacity. The present appellants were never before the District Court, therefore, they cannot be committed for contempt for the disobedience of the order of the court contained in the judgment of the Creek Town District Court dated 26/6/26. There is merit in this appeal and it deserves to succeed.
Accordingly, this appeal be and is hereby allowed. The Ruling of Binang, J. in Suit No. HC/MISC/63/96 delivered on 6/4/98 be and is hereby set aside. Costs of N10,000.00 in favour of the appellants.
Appeal allowed.
Other Citations: (2009)LCN/3151(CA)
