Commissioner of Police Anambra State & Ors V. Dr. Emmanuel Omanukwue & Ors (1998)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This is an appeal against a ruling of Kassim, J. of the Federal High Court, Enugu Division in suit No. FHC/E/M11/95 delivered on 22nd April, 1996, wherein he decided that he would first consider a motion for the committal of the parties sought to be joined, for contempt before considering the motion of the respondents/appellants challenging the jurisdiction of his court to entertain the matter before him.
In the substantive application before the court, the two applicants who are now the 1st and 2nd respondents had brought a motion ex-parte under Order 1 rule 2 of the Fundamental Rights (Enforcement Procedures) Rules 1979 for leave of the court for them to inter alia apply for enforcement of their fundamental rights which are guaranteed by sections 31(1)(a), 32( 1), 33( 1), 34 and 40 of the 1979 Constitution of the Federal Republic of Nigeria, which were seriously being threatened to be infringed by the respondents, their servants, agents and/or privies unless and until restrained by the honourable court.
In the statement of the “grounds upon which the application is made” it was disclosed that the 1st and 2nd appellants were the President-General and Secretary respectively of the “Ifitedunu Progressive Union,” It was then disclosed that the respondents were threatening to invade the privacy of the homes of the applicants and to arrest and detain them if they failed to produce and/or surrender the Ifitedunu Progressive Union’s properties to wit: The union’s minutes books, books of accounts and their constitution. It was then averred that by reason of the said threat, the applicants were suffering serious mental torture and were apprehensive of being arrested and detained any time.
Upon the above grounds the learned trial Judge. KASSIM, J. granted the leave sought in the following terms:
“1. That leave is hereby granted to the applicants to enforce their fundamental rights against the respondents.
- That the leave shall operate as a stay of all actions or matter relating to or in connection with the complaint and to restrain the respondents their servants, agents and/or privies from continuing to infringe the applicants’ fundamental rights in the interim by restraining the respondents their servants, agents and/or their privies from:
(A) Arresting and determing the applicants.
(B) Expropriating from the applicants their custody right of the Ifitedunu Progressive Union’s properties to wit: The union’s books which include:-
Minute book,books of account and constitution etc.
(C) Invading the homes of the applicants in their search for the Ifitedunu Progressive Union’s properties as averred in (b) above.
- That the applicants are to provide an undertaking as to damages.
- That return date is 6th October, 1995.”
Following the above leave, an application on notice was later filed giving more details of respondents’ acts complained of.
On being served with the ex-parte order of the court, the first – third respondents filed an application on notice dated 5th October, 1995 praying the court for; “Orders striking out this suit and/or setting aside its ex-parte order for leave dated 25/9/95 on that grounds of incompetence or lack of jurisdiction, fundamental procedural irregularities and nullity.”
Also, in a motion on notice dated 6/11/96 and filed on 7/11/95 and fixed for hearing on 10th November, 1995, the following six persons. i.e.
- Mr. J.J.D. Onyeka
- Mr. Christopher Uchegbu
- Mr. Ifedi Chude
- Mr. Gabriel Obi
- Mrs. Patricia Nweke
- Mrs. Patricia Akabuike
(For themselves and on behalf of the Caretaker Committee of Ifitedunu Progressive Union),
sought to be joined in the suit as respondents. In the affidavit in support of the application they deposed that the former executive of the I.P. U. has been dissolved, and that they were appointed members of the Caretaker Committee of the I.P.U.
Finally, by a motion dated 5th February, 1996, and fixed for hearing on 15th February, 1996. the applicants filed an application on notice as “Form 49″ showing that they (applicants would apply to the court for an order for following five persons to be committed to prison.
- Chief M.O. Ituludiegwu
- Mr. James J.D. Onyeka
- Mr. Christopher Uchegbu
- Mr. Ifedi Chude and
- Mrs. Patricia Nweke
for having disobeyed the court’s order.
Due to insufficiency of time. the application challenging jurisdiction of court and the application for joinder as co-respondents, could not be entertained earlier.
So all the applications mentioned above ultimately came before the learned trial Judge for arguments on the same day. On the said day, the learned trial Judge proposed to start with the application for committal of the 3rd to 6th respondents to prison, but the 1st-3rd respondents objected, saying that the application challenging the jurisdiction of the court should be considered first, since if the court had no jurisdiction to entertain an action, everything done under it would be a nullity. The applicants on the other hand insisted that the application for committal should he taken first, since any order of court whether void or voidable, whether made with or without jurisdiction was valid until set aside by a higher court. Also any wilful disobedience of a court’s order amounted to the offence of contempt of court, and liable to punishment in order to maintain the dignity and integrity of the court. Numerous authorities were cited on both sides. At the end of the exercise the learned trial Judge came out with a 10-paged considered ruling in which he decided that he would start with the motion for committal of respondents. Since the said motion was entirely independent of the substantive application for enforcement of fundamental rights. The Ist-3rd respondents who were the original defendants in this case were aggrieved, and so appealed to this court on three grounds. Briefs of arguments were later filed and exchanged, and issues for determination formulated. From the three grounds of appeal filed only one issue for determination was formulated as follows:
‘”Whether the Federal High Court was right in holding that it has unfettered discretion to proceed first with the hearing of an application for committal before it could determine an earlier application questioning its jurisdiction.”
From now onwards the 1st- 3rd respondents who were the original respondents will he referred to as the “appellants”.
On the other hand, the original 1st and 2nd applicants, who will hereinafter be referred to as the “respondents” formulated 4 issues for determination as follows:
“Whether the substantive suit and the committal proceedings are not separate and distinct proceedings.
Whether a motion challenging the jurisdiction of the court filed by a party against whom an order is made can stop the court from entertaining an application to commit the party for contempt until
the motion is determined.
Whether the 3rd – 6th respondents who have not been joined as parties in the substantive suit can urge the court to postpone the determination of the contempt proceedings against them until the court determines the motion raising the issue of jurisdiction filed by the parties to the suit.
Whether the issue of jurisdiction was raised bona fide.”
In spite of the numerous issues formulated by the respondents, I am satisfied that this appeal can be satisfactorily resolved under the one issue formulated by the appellants. I shall therefore proceed to do so at once.
“Whether the Federal High Court was right in holding that it has unfettered discretion to proceed first with the hearing of an application for committal before it could determine an earlier application questioning its jurisdiction.”
Under the above issue the submission of Amaechina Esq. the Principal legal officer in the Anambra State Ministry of Justice, who represented the appellant was quite brief and to the point as follows:
First he submitted that lack of jurisdiction nullifies all proceedings or steps taken in a case however well-conducted The State v. Onagoruwa (1992) 2 NWLR (Pt.221)33 was relied upon for that proposition. Arising from the above, it was further argued that jurisdiction goes to the root of any matter, namely the legal capacity to make ‘”coercive orders”. If the lower court had not the legal capacity or competence to make coercive orders, how could it commit any person to prison for contempt’?
Secondly, it was submitted that it was wrong for a trial court to postpone the issue of jurisdiction when raised, as was done by the trial court in the instant case.
The case of Governor of Anambra State v. Anah (1995) 8 NWLR (Pt.412). 213 C.A. was cited as authority in support.
Finally, it was submitted that from the cases cited above it was imperative or peremptory that every court including the lower court determines first the issue of jurisdiction once it is raised. The situation did not admit of any discretion or permissiveness, because every court was under an obligation to ensure that it has the legal capacity or competence to give coercive orders. The court was therefore urged to allow this appeal.
As pointed out above, although the appellants who brought the appeal to this court formulated only one issue for determination, the learned senior counsel for respondent formulated as many as four issues, no doubt in the interest of proper elucidation, Since they are all inter-related I shall therefore try as best as I can to amalgamate and summarise them together as follows:
The largest single submission of Senator Anah. S.A.N for the respondents was that the substantive suit for enforcement of fundamental rights of the respondents was quite separate and distinct proceedings from the committal proceedings sought to be taken against the 3rd appellant and the 3rd to 6th respondents. There were different procedures governing each of them. The court was therefore at liberty to consider committal proceedings first before probing the enforcement proceedings. It was at the discretion of the court to determine one before the other so long as it exercises its discretion judiciously and judicially.
It was also further submitted that every court has an inherent power to punish summarily or otherwise, any person who wilfully disobeyed the courts orders, as otherwise the society would look at the court as a toothless bull dog which can only bark, but cannot bite. The case of Okoyo v. Santilli (1991) 7 NWLR (Pt.206) 753 was cited in support. It was emphasised that the power to punish for contempt was designed for the maintenance of the dignity and integrity or the court and the judicial process. It was also emphasised that very order of a court whether made with or without jurisdiction must remain valid and he obeyed until set aside. It cannot be left to the litigants affected by the order to decide whether the order was valid or invalid, or whether he would obey it or not (The case of Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 129 at P.143 per Uwais J.S.C. (as he then was) was cited in support).
It was also pointed out that the case of F.A.T.B. v. Ezegbu (1992) 9 NWLR (Pt.264) 132 S.C. cited by the appellants did not favour them. Rather it favoured the respondents.
At this stage, I must observe that neither issue 3 nor issue 4 formulated for the respondents arose from any of the grounds of appeal filed by the appellants. It is our law that issues for determination formulated in a brief must be based on the ground or grounds of appeal filed by the parties. If they are not related to any ground of appeal, then they become irrelevant and must be either discountenanced or struck out Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 157; Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608 at 620 – 621) I should also mention that if the learned Senior Advocate felt so strongly about his issues 3 and 4, he should have filed a cross-appeal based on which those issues could have been legitimately argued. Since issues 3 and 4 formulated for the respondents did not arise from any of the grounds of appeal filed by the appellants, and the respondents themselves, did not file any cross-appeal, their issues 3 and 4 are irrelevant to this appeal, and are hereby struck out. I shall now proceed to resolve this appeal based on the arguments of learned counsel on both sides, summarised above.
According to the argument of the learned Principal Legal Officer for the appellants, once the jurisdiction of a court is challenged, at any stage of the proceedings, all other things in the suit must be stopped, and the question of jurisdiction disposed of before proceeding with the suit or proceedings. If that is not done, and it turned out that the court lacked jurisdiction, such court will not have what he called “the legal capacity to make coercive orders”
Luckily, he cited a number of decided cases to buttress his arguments. I shall now proceed to look critically at those cases to see whether they were on all fours with our instant case, particularly whether contempt of court was committed in any or all of those cases, and the committal proceedings was kept in abeyance simply because the jurisdiction of the court was being challenged by one of the parties. The first case to be considered is the case of First African Trust Bank Ltd. (F.A.T.B.) v. Ezegbu (1992) 9 NWLR (Pt.264) 132 S.C., which was referred to by both sides in their briefs of argument. In that case the question for determination was whether the applicants (F.A.T.B.) whilst still in disobedience of the orders of the Court of Appeal, were entitled to a hearing in respect of their prayers seeking to set aside those orders and restoring the orders of the Federal High Court. There was no question of the jurisdiction of any court being challenged. At the end of the day the Supreme Court made so many pronouncements on whether a contemnor was entitled to hearing and to discretion of court, None of them favoured the appellants in this case: rather it was the contention of respondents that was favoured. MOHAMMED J.S.C. at pages 154-155 paras G -A had the following to say:
“I agree with him that this court ought not to hear the appellants/applicants’ application dated 11th May, 1992. So long as the applicants continue in their contempt of the orders of the Court of Appeal made by that court on 5th December, 1991. To hear the application in this circumstance would, in my view, tamamount to aiding and abetting them in their contempt. A person against whom an order has been made by a court of competent jurisdiction has an unqualified duty to obey that order until the order is discharged. It is not for the person against whom the order is made to say that the order is null and void or whether if is regular or irregular. It is for another court to so declare.
This court in Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 followed its decision in Ojukwu v. Governor of Lagos State & Ors (1986) 3 NWLR (Pt.26), 39 and there is nothing in the present application to justify a departure from those decisions.”The next case was the case of Governor of Anambra State & Ors v. C.O. Anah & Ors. (1995) 8 NWLR (Pt.412) 213 C.A. decided by this court (coram Achike, Ejiwunmi and Adamun J.J.C.A.). In that case the question for determination, which concerns us here was whether the High Court was right to have glossed over or postponed its decision on jurisdiction until the trial or the substantive suit. Be it noted that there was no question of anybody having committed contempt of court. But the court held as follows:
“2. On Duty on court when objection is raised to its jurisdiction –
Whenever the court is faced with an objection to its jurisdiction, it has a duty to settle that issue one way or the other before it proceeds to hear case. The reason is that jurisdiction is a radical and crucial question of competence. Either the court has jurisdiction to hear the case or not. If it has no jurisdiction, the proceedings are and remain a nullity no matter how well conducted and brilliantly decided they might otherwise have been. (A-G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.III) 552 at 556; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Okoye v. N.C. & F. Co. Ltd. (1991) 6 NWLR (Pt.199) 501; State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33; Fumudoh v. Aboro (1991) 9 NWLR (Pt.214) 210; Obaba v Military Governor of Kwara State (1994) 4 NWLR (Pt.336) 26 referred to). (P.220, para. G-H).
3.On Duty on court when objection is raised to its jurisdiction-
When the jurisdiction of the court is challenged by way of demurrer, as in the present case, it is not only neater and far better for the court to settle the issue one way or another before proceeding to hear the case on its merit but it is also imperative that the issue be settled on the allegations contained in the statement of claim without taking oral evidence. In this case, the learned trial Judge was wrong to have postponed the issue of jurisdiction when raised pending the determination of the substantive suit. (Okoye v. N.C. & F. Co. Ltd. (1991) 6 NWLR (Pt.199) 501 referred 10.) (P.221, para.B).”
The sum total of all the above is that there is none of the cases cited by the learned counsel for the appellants which is on all fours with our instant case. However, before concluding I should also refer to the case of Mobil Oil (Nigeria) Ltd. “. Assail (1995) 8 NWLR (Pt.412) 129cited by learned counsel for respondents in which the Supreme Court made far reaching pronouncements on the legal basis of the offence of contempt of court. In that case the questions for determination were inter alia.
- Whether the appellants were in contempt of the order of the High Court and
- Whether the decisions of the Court of Appeal not to entertain the appellants motion was justified.
Unanimously dismissing the appeal, the Supreme Court per Justice Uwais, J.S.C. (as he then was) made the following pronouncements under ratios 3 & 4.
“The rules embodied in the law of contempt of court are intended to uphold and ensure the effective administration of justice. They are the means by which the law vindicates the public interest in due administration of justice. The law does not exist to protect the personal dignity of the judiciary nor does it exist to protect the private rights of parties or litigants. (p.143, paras F-G) Per Uwais, J.S.C. at pages 143-144. paras. G-C.”
“On Types of contempt and whether a contemnor can be heard.
Traditionally, contempt’s are classified into two, civil and criminal.
A civil contempt basically comprises the failure to comply with an order of court. The rules of civil contempt like those of criminal contempt are concerned to uphold effective administration of justice. A person who has committed a civil contempt by disobeying a court order may be subject to the rule that a party in contempt cannot be heard or take proceedings in the same cause until he has purged his contempt. (Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (pt.18) 621; Obeya memorial Hospital v. A-G of the Federation (1987) 3 NWLR (Pt.60) 325; Odogwu v. Odogwu (1992) 2 NWLR (225) 539; F.A.T.B. v. Ezegbu (1992) 9 NWLR (Pt.264) 132; Lawal-Osula v. Lawal Osula (1995) 3 NWLR (pt.382) 128 referred to). (Pt.144, paras. D.E).”Before concluding, I must say that it is a correct statement of our law that
“Where an objection on jurisdiction is based on a constitutional or statutory provision it must be raised as early in the proceedings as possible, so as to avoid the court embarking on an exercise in futility.’ (Kasikwu farms Ltd. v. G.G. Bendel State (1986) 1 NWLR (Pt.19) 695 at 704; Obada v. Governor of Kwara State (1990) 6 NWLR (pt.157) 482 CA; and Opawande v. Oyedekun (1992) 6 NWLR (pt.248) 512 C.A.”However, the above does not mean that when contempt of court is committed, whether “in facia curiae” or “ex facia curiae” it must not be dealt with summarily by the court before proceeding to the substantive suit, so as to restore and protect the dignity, authority and integrity of the court as stated by the supreme court in Mobli Oil (Nig) Ltd v. Assan (supra). The jurisdiction to do this is both statutory and inherent (see e.g. S.133 of the criminal Code). What the law prohibits is for a judge whose jurisdiction has been challenged to leave the resolution of that challenge and proceed to entertain the substantive suit, which was not what the learned trial judge did here.
In view of the foregoing, I have no hesitation in saying that the learned trial Judge was right in deciding to deal first with an act of contempt of court committed against his authority by the 3rd appellant and the 3rd to 6th respondents before coming to consider whether he had jurisdiction to entertain the substantive suit (fundamental rights enforcement) or not. I should also observe that I have seen a brief filed for the 3rd – 6th respondents who were members of the caretaker committee, who had applied to be joined as co-respondents, but had not yet been joined in the suit when the learned trial Judge merely stated his intention to start with the application for committal, but nothing has been done, and the 3rd – 6th respondent were not ordered to do anything. If they did not support the intention of the learned trial Judge, to start with the motion for committal, then they should have been appellants, and not respondents. Appellants are those who oppose the decision of a court, while respondents are those who support it.
In the case of Nwarie v. Amauwa (1991) 8 NWLR (pt.207) 68 at 61 per Kolawole. J.C.A.) where similar confusion had taken place, it was held that:
“A brief filed by a defendant who did not oppose a ruling at the trial Court, and did not also file any appeal, but turned out to complain about the ruling in the Court of Appeal is incompetent and uncalled for, as the said defendants were not parties to the appeal. The brief should accordingly be struck out.”
view of the foregoing the brief filed for the 3rd 6th respondents by their learned Senior Advocate Chief A. O. Mogboh. is hereby struck out as incompetent.
On the totality of the foregoing, the appeal of the appellants fails and is hereby dismissed. The intention of the learned trial Judge to consider the motion for committal before going to the motion challenging the jurisdiction of his court is hereby affirmed. The appellants are to pay costs of N3,000.000 the 1st and 2nd respondents who are the proper respondents in this court.
Other Citations: (1998)LCN/0383(CA)
