Chief Eyo Ogboni & Ors V. Chief Ojah Ojah & Ors (1988)
LawGlobal-Hub Lead Judgment Report
UWAIFO, J.C.A.
The procedure for committal under Order 9 rule 13 of the Judgments (Enforcement) Rules pursuant to Section 71 of the Sheriffs and Civil Process Law (Cap 108) of the Cross River State is quite often misunderstood, particularly in respect of when the judgment debtor was present in court at the time the order sought to be enforced was made. In that situation the question does arise whether notices under Forms 48 and 49 are necessary processes for a committal proceeding to be competent.
On 7 February, 1986, at the Calabar High Court, Effanga, J., in a reserved judgment made the following orders in favour of the plaintiffs:
“(1) The land occupied by Etono II village is part of Biakpan communal land under the Headship of the Paramount Ruler of Biakpan.
(2) A perpetual injunction restraining the defendants by themselves, servants, agents, or assigns, from ]easing, alienating or doing anything in Etono II village inconsistent with communal ownership of Biakpan in all that piece of land now occupied by Etono II village, Biakpan.”
The defendants appealed and in the meantime applied for a stay of execution. The application was heard by Kooffreh, CJ who on 24th July, 1986 granted a stay in the following terms:
“The status quo before the case must be maintained until the appeal is heard. This ruling does not in any way give the applicants, Etono II any right to do anything inconsistent with the judgment until the appeal is determined. It is on this understanding therefore that the execution of the judgment by the respondent is stayed until the result of the appeal is known.” (Kooffreh, CJ’s emphasis).
Later on 18th March,1987 in a letter addressed to Chief (Dr.) Okoi Arikpo & Associates, the plaintiffs’ solicitors, Orok Ironbar & Associates, defendants’ solicitors, complained that Etono people (the defendants on record were not specifically mentioned) had cleared various portions of the land without the consent of Biakpan Chiefs and Elders for farming purposes.
There was a warning that if such an act persisted, committal proceedings would be commenced. On 8th April, 1987 a motion on notice to commit the defendants to prison was filed.
It was heard on 19th May, 1987 by Kooffreh, CJ. Reliance was placed on the affidavit in support and counter-affidavit. On 8th June, 1987 in a reserved ruling the learned Chief Judge held:
“I do not intend to send the whole village to prison but they are fined the sum of N3,000.00 (three thousand naira) which is to be paid immediately. Until this is done, their representatives now in court will be committed to prison … The cost of this application is fixed at N50.00 against the Respondent, Etono II.”
I shall advert to the implication of this conviction at a later stage in this judgment.
The defendants (as appellants) now complain that the committal proceedings not having complied with Order 9 rule 13 of the Rules was incompetent and that a conviction thereunder, cannot stand. The other complaint is that a wrong interpretation was given to what must be understood as the “status quo” which should he maintained until the appeal against the injunction order was determined.
The terms of the conviction as contained in Kooffreh CJ’s decision quoted above are to the effect that the whole village community of Etono II was convicted. This follows the manner in which the motion for committal was prosecuted because although the representatives of the village were named on record and brought to appear in court, they were prosecuted in a representative capacity. The other members of the community were in effect convicted in absentia and without any opportunity of being heard. As committal proceedings are of quasi-criminal nature for which punishment can be inflicted, it is a rule of natural justice that any person involved must be given reasonable opportunity of knowing the nature of the charge brought against him and of making his answer to it. This is so even if all that the punishment entails is a mere binding over: see R v. Wilkins (1907) 2 KB 380 at 383 per Al-verstone CJ; R v. Aubrey-Fletcher ex-parte Thompson (1969) 2 All E.R. 846 at 847 per Lord Parker CJ; and Bankole Kehinde v. Commissioner of Police (1973) 3 E.C.S.L.R. 897 at 898 per Reed CJ.
This therefore calls into question the procedure adopted in the present committal proceedings. Section 71 of the Sheriffs and Civil Process Law (Cap 108) and Order 9 rule 13 of the Judgments (Enforcement) Rules are relevant here. Section 71 provides:
“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 65, 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.”
The procedure to be followed in such committal proceedings is as laid down in Order 9 rule 13. It reads as follows:-
“13(1) When an order enforceable by committal under Section 71 of the Law 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 any 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.
(2) If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as a judgment summons.
(3) On the day named in the notice the court, on being satisfied that the judgment debtor has failed to obey the order and, if the judgment debtor does not appear-
(a) that the notice has been served on him, and
(b) if the order was made in his absence, that the endorsed copy thereof has also been served on him, may order that he be committed to prison and that a warrant of commitment may issue.
I have reproduced this rule in full in view of the argument of counsel for the respondents (i) that since the applicants were present in court when the order of injunction was made against them, there is no necessity to comply with this rule 13; and (2) that since the order was an injunction to restrain, the rule does not apply at all.
Counsel for the respondents referred to Okojie v. Uhunmwagho (1987) 3 N.W.L.R. 643 (part 62) decided by the Court of Appeal. There Ajose Adeogun, JCA relying on R.A. Doherty v. T.A. Doherty (1964) L.L.R. 226, held that order 9 rule 13 does not need to be followed in a committal proceeding where a restraining order has not been complied with. It seems to me that the attention of the court was not drawn to Omopena v. Adelaja (1950) 19 N. L. R. 71 where the said rule was examined in a committal proceeding for disobedience to a restraining injunction and held applicable and should be strictly complied with. See also Olafa v. Mogaji (1960) W.N.L.R. 193 per Fatayi-Williams, J., Enabirhire & Anor. v. Atamabo & Ors. (1967) N.M.L.R. 253 per Obaseki J. and Esubiyi v. Somefun (1979 2 L.R.N. 297 per Oshodi J. Indeed the case of Ojomo v. Ijeh (1987) 4 N.W.L.R. (Pt. 64) 216 decided in this court per Ogundare JCA recognises the legal requirement to serve the necessary Forms under this rule in respect of disobedience to a restraining injunctive order.
In my view, the said rule 13 requires a very careful consideration. It is admittedly a difficult provision to interpret. I think the first point to make is that sub-rule (i) applies to “any injunction”; in the same way Section 71 of the Sheriffs and Civil Process Law applies to “any person (who) refuses or neglects to comply with an order made against him, other than for payment of money.” The word “order” is defined in Section 2 as including an injunction. Therefore the procedural requirement is applicable in any committal proceeding for a refusal or neglect to comply with any injunction.
The next point is whether compliance with rule 13 is necessary in a situation where the judgment debtor was present in court when the order he has failed to comply with was made against him. A proper reading of sub-rule (i) shows that if an order of injunction was made in the absence of the judgment debtor, the registrar shall, at the time when the order is drawn up, issue a copy of the order indorsed with a notice in Form 48 and the copy so indorsed shall be served on the judgment debtor in like manner as a judgment summons. This is a situation in which the registrar has to perform that duty as a matter of course. This is understandable since it would be immediately necessary to give notice of the order to the absent judgment debtor.
But the other aspect of that sub-rule is that concerning the phrase “in any other case”, which, in my view, includes when the judgment debtor was present in court at the time the order was made. He does not need any such immediate information from the registrar as when he was absent from the court. He was in court and heard the order made. However, on the application of the judgment debtor (which is an indication that although the judgment debtor was present in court and heard the order, he has not obeyed it) the registrar shall issue a copy of the order indorsed with a notice in Form 48 and served accordingly. The difference is that in the former situation the judgment creditor need not prompt the registrar before he acts whereas in the latter he has to. In the former the judgment debtor gets notice of warning in Form 48 soon after the order is drawn up while in the latter such notice of warning may reach him much later depending on the judgment creditor.
A close look at sub-rule (2) together with the wording of Form 49 shows even more clearly that in any event any such judgment debtor intended to be committed for contempt must be served with Form 49. But that cannot be done unless a copy of the order indorsed with the notice in Form 48 had been served on him not less than two clear days earlier. As a matter of procedure, it is Form 49 which in the end is the process that gives notice to the judgment debtor that the judgment creditor has applied to court for an order for the judgment debtor’s committal to prison and requires his attendance in court, not necessarily the motion filed by the judgment creditor although that motion will give full details of the manner in which the order was disobeyed.
The notice in Form 48 is very short. It is addressed to the judgment debtor, dated and signed by the registrar. It says: “Take notice that unless you obey the directions contained in this order you will be guilty of contempt of court and will be liable to he committed to prison.” The notice must be endorsed on the enrolled order made against the judgment debtor, e.g. the injunction order. The Oxford Universal Dictionary Illustrated, 3rd edition, defines “endorse” as “To write on the back of (a document)” and “‘endorsement” as “a signature, memorandum, or remark endorsed upon a document.” Mozley & Whiteley’s Law Dictionary, 9th edition, defines “indorsement” as “A writing on the back of a document.” Black’s Law Dictionary, 5th edition says, “An indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a pan thereof.” This demonstrates the unseverability of the document and the endorsement. That is the relationship which the notice in Form 48 should bear to the drawn up order. I think when considered with regard to a penal matter, an endorsement required under rule 13(1) is intended to convey to the judgment debtor a stern and unmistakable notice of the consequences of a disobedience to the order.
It appears to me that failure to comply strictly with the procedure in rule 13 is of the utmost moment in committal proceedings. This rule was examined in Omopena v. Adelaja (supra) where on a preliminary objection it was held that the motion for committal was bad in law owing to non-compliance with the procedure required by the rule. There at pages 71-72, Johnston, J., observed:
“It is not in doubt that the judgment creditor in this case has failed to follow the procedure and practice prescribed. His affidavit is silent on the matter and a certified copy of the endorsed order with certificate of service necessary under sub-rule (1) is not annexed to the affidavit. The annexure is the order alone, the judgment of this court … On this ground alone I must regard this motion as bad in law.”
In Enabirhire v. Atamabo (supra) Obaseki, J. held that such indorsement and service were mandatory. See also Olofa v. Mogaji (supra) and Esubiyi v. Somefun (supra).
Rule 13, being a procedure in proceedings which may result in an imposition of a penalty, must be strictly construed. In the case of R v. Bullock (1964) 1 Q.B. 481, it was held that statutes dealing with procedure or jurisdiction will be strictly construed if they relate to the imposition of any penalty and that if there is any ambiguity or doubt as to the procedural provisions it will be resolved in favour of the person liable to be penalised. This is so even though it may enable such person to escape punishment on a technicality; see R v. Clarkson (1961) 1 W.L.R. 347. As was said in Martin v. Mackonochie (1878) L.R. 3 Q.B. 730 at 775 by Cockburn C.J.,
“In a criminal proceeding the question is not alone whether substantial justice has been done, but whether justice has been done according to law. All proceedings in poenam are, it needs scarcely be observed, strictissimi juris; nor should it be forgotten that the formalities of law, though here and there they may lead to the escape of an offender, are intended on the whole to insure the safe administration of justice and the protection of innocence, and must be observed. A party accused has the right to insist on them as matter of right, of which he cannot be deprived against his will; and the judge must see that they are followed.”
Thus a statute imposed a penalty where sacks of coal upon being weighed should he found deficient in weight of coal. But it also provided that in the process of weighing, the sacks were to be weighed first with the coal and later without the coal in them. This procedure was held not to have been complied with by putting the full sacks successively into one scale and an empty sack with the appropriate weight in another scale. Consequently, the statutory penalty was held not recoverable by the buyer as the precise procedure laid down for determining the weights had not been followed. The same scale was contemplated to be used for each process of weighing: see Meredith v. Holman (1847) 16 LJ. Ex. 126. Also in Scott v. Baker (1968) 2 All E.R. 993, it was held that since the device used by a constable to test the blood of a motorist to determine if the alcohol in it exceeded the prescribed limit was not shown to be the one approved by the Secretary of State, the procedure had not been strictly complied with and so the prosecution failed.
It must be made quite clear that it is in the interest of the public that the court should exercise a penal or disciplinary jurisdiction over a party in default in carrying out or obeying court order: see Viscount Haldane LC in Scott v. Scott (1913) A.C. 417 at 440. See also Balogh v. Crown Court (1974) 3 All E.R. 283 per Lord Denning M.R. But in doing so the party in default must be dealt with in accordance with the procedure prescribed. He must be informed promptly of the allegation against him in the proper manner and be entitled to a fair hearing within a reasonable time. That is to say, he must, among others, be made to understand in detail the nature of the offence alleged against him, be given adequate time and facilities for the preparation of his defence and be present in court in person to defend himself either in person or by legal practitioners of his choice. His guilt must thereafter be proved beyond reasonable doubt: Section 137(1) of the Evidence Act. In effect, apart from the observance of the rules of natural justice, his constitutional right to a fair hearing under section 33 of the Constitution must he ensured and his individual liberty protected under and subject to the law.
That was not done in this case by service of the relevant Forms on every individual thought to have disobeyed the court order in question and giving each of them a hearing. In this particular circumstance every such individual must be personally served with the enrolled order endorsed with Form 48 and thereafter Form 49 in order that they may he properly brought to court. That not having been complied with, the result was that certain acts were alleged against a village community, their representatives were brought to court irregularly, the community were tried through their said representatives and convicted. Even their representatives against whom nothing individually was alleged were ordered to pay then and there in court the fine of N3, 000.00 imposed on the community or else they would he detained.
No procedure could be more irregular and no conviction of an entire village community in absentia more illegal. The proceedings must be and are hereby set aside and the conviction quashed. It is ordered that the N3.000.00 fine and cost of N50.00 imposed if already paid should be refunded to the appellants forthwith. I award the sum of N150.00 against the respondents as costs in the court below and N100.00 as costs in this court.
Other Citations: (1988) LCN/0045(CA)
