Chief Mustapha Kekereogun & Ors V. Chief Sulaimon Babatunde Ajasa & Ors (1999)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The applicants herein on 2 – 6 – 99 filed before this court an application framed in these words:-

“1. For an order granting the applicants who were not named as parties to the original suit and against whom no reliefs were sought and also against whom the Ikeja High Court had irregularly and without jurisdiction and competence ordered to be arrested in execution of Forms 48 and 49 Sheriff and Civil Process Act and Procedure).

Leave to appeal as parties interested and affected by said warrant of arrest and committal issued in enforcement of Forms 48 and 49 issued against them.

2. An order granting the applicants extension of time within which to apply for leave to appeal.
3. Leave to appeal.
4. Extension of time to file Notice and Grounds of Appeal.
5. An Order staying the entire committal proceedings Forms 48, 49 warrant to arrest pending the determination of the appeal.

Or in the alternative

6. An order of injunction restraining the plaintiffs/Respondents, the Ikeja High Court, the Inspector General of Police, Commissioner of Police. Lagos State, their servants, agents, privies and any other person howsoever described from arresting, molesting or disturbing the plaintiffs/applicants (?) pending the determination of the appeal.
7. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

In reaction to the above motion the plaintiffs who are the respondents in the motion on 15 – 6 – 99 filed a Notice of Preliminary Objection praying for an order.

“refusing to entertain the said motion and the prayers therein or any other application or appeal that has been filed or may be filed by the respondents relating to or arising from the above form 49 cause or matter until the applicants have obeyed the orders/request of:

1. the statutory demand by the Registry is that the respondents attend court and show cause since 15 – 4 – 99.
2. 17th May, 1999 requiring the respondents to personally appear in court as required by Law/Warrant.
3. 7th June, 1999, that no application of the applicants shall be entertained until such personal appearance in court.

On the grounds that:

1. The applicants motion dated 2nd June, 1999 seeks leave to appeal the positure orders of the High Court which the applicants continue to flout day by day.
2. The applicants brought their motion for their advantage to taunt this Honourable Court whilst the orders of the High Court have been and are being treated scornfully and arrogantly by the applicants and their motion arises from the same cause form 49 in respect of which the High Court has been and is being treated contemptuously.
3. This Honourable Court is entitled to make incidental and consequential order because it could not while the applicants are still disobeying the subsisting orders of the High Court equitably consider the applicants’ motion.
4. While the form 49 proceedings are pending the applicants by petitions dated the 2nd June, 1999:
5. to the Honourable Chief Judge of Lagos State High Court.
6. to the Inspector General of Police scandalised the High Court and put it in public ridicule upon a matter which is subjudice.
7. The courts and this Honourable Court will not entertain any suit or application or appeal or further steps by the applicants relating to the same cause or matter on which the court or its subordinate has been or is being treated scornfully and contemptuously.

And for such other or further order as this Honourable Court may deem fit to make in the circumstances.”

It is necessary that I make a few preliminary observation. The grounds of refusing to entertain the application as stated on the Notice of Preliminary objection in effect assumed the existence of a judicial order which the applicant has failed to observe.

I am not in any doubt as to the meaning and import of a Form 49 under the Sheriffs and Civil Process Law. Form 49 is an invitation to someone who has failed to obey a judicial order against him to show cause why they should not be punished for the disobedience. There must therefore be in existence a judicial order which has been brought to the notice of the person sought to be punished; and which it is alleged he was in breach of.

Furthermore, Form 49 in itself is a command to a person to appear on a particular day which is stated on the form for the purpose of showing cause why that person should not be punished. The plaintiff/respondent has not filed any affidavit in support of the notice of the preliminary Objection. The matters stated on the Notice of Preliminary Objection do not constitute evidence upon which the court can act for the purpose of determining whether or not the applicant had been commanded to appear in court on a particular date and had failed to so appear.

On the other side of the coin is the affidavit in support of the application.

Paragraphs 3 to 17, thereof read:

“3. That I have the authority and consent of the Appellants/Applicants and my employers to depose to this Affidavit on their behalf and I now do so.

4. That on or about the 29th day of March 1999, the 1st Appellant/Applicant herein was informed by one Ismaila Muyibi Oluwa, the 2nd Defendant in the suit before the lower Court that Form 48 had been issued against the 1st and 2nd Appellants/Applicants.
5. That the said Ismaila Muyibi Oluwa gave a photocopy of the said Form 48 to the 1st Appellant/Applicant. A copy of the said Form 48 is hereto attached and marked Exhibit “A”.
6. That the 1st Appellant/Applicant immediately forwarded the said copy of the Form 48 to his Solicitors instructing them to take necessary steps on their behalf.
7. That in line with the said instructions, the said Solicitors duly filed a Memorandum of Conditional Appearance dated the 30th day of March, 1999. A photocopy of the said Memorandum of Conditional Appearance is hereto attached and marked Exhibit: “B”.
8. That further to filing the said Memorandum of Conditional Appearance, the Appellant/Applicants Solicitors filed a Notice of Preliminary Objection dated the 12th day of May 1999. A photocopy of the said Notice of Preliminary Objection is hereto attached and marked Exhibit “C”.
9. That the High Court Registry Ikeja fixed the hearing of the said Notice of Preliminary Objection for 7th day of June 1999.
10. That before the date fixed for the hearing of the objection, the Plaintiffs/Respondents counsel filed a Form 49 and the same was fixed for hearing on the 17th day of May, 1999.
11. That on the 15th day of April 1999 when this matter came up at the lower Court, the suit was adjourned to the 28th day of May 1999 and this was the date the Appellants/Applicants were aware or that the matter is coming up.
12. That the Form 49 was not served on the Appellants/Applicants and the Form 48 was also not served on the Appellants/Applicants.
13. That on the 17th of May 1999 when the suit came up for hearing of the Form 49 filed, the Appellants/Applicants who were not served and who were not aware that the suit was coming up on that date were not in Court.
14. That on the said date, the trial Judge on the application of Counsel to the Plaintiffs/ Respondents ordered bench warrant to be issued for the arrest of the Appellants/Applicants.
15. That the Order for bench warrant was made based on the forged proof of service of the Form 49 on the Appellants/Applicants.
16. That the signatures on the said proofs of service are not that of the Appellant/Applicants as they did not sign the acknowledgment copies as no Form 49 was served on them. Attached hereto and marked Exhibits “D”, “E” and “F” are photocopies of the certified true copies of the said proofs of service.
17. That the Order for the issues of a bench warrant for the arrest of the Appellants/Applicants prompted Counsel to the Appellants/Applicants to file a Motion on Notice dated the 24th day of May 1999, praying the Court to set aside the bench warrant. A photocopy of the said Motion is hereto attached and marked Exhibit “G.”

When plaintiff/respondents’ counsel sought to move his Notice of Preliminary Objection. I directed his attention to the fact that there was no affidavit evidence before us to support the grounds stated on the Notice of Preliminary Objection.

Counsel said that there was evidence before this court to be garnered from the motion papers filed by the applicants. I have painstakingly examined each of the papers filed by the applicants and found no evidence to show that the applicants had admitted that he was in breach of a specific order of the court below. Substantially, the depositions reveal that the contentions of the applicants were that they were not served the Forms 48 and 49 and that in consequence they filed applications still pending before the lower court to set aside the bench warrants issued against them on the supposition that they were served the Forms 48 and 49.

The conclusion to be arrived at is that there is no evidential support for the Notice of Preliminary Objection filed by the plaintiff/respondent. Accordingly, over-rule the Preliminary Objection.

Other Citations: (1999)LCN/0531(CA)