Dr. Inih A. Ebong V. Mr. Peter Jerome Effiong (2006)
LawGlobal-Hub Lead Judgment Report
NGWUTA, J.C.A.
The appellant was an associate Professor in the Department of Theatre Arts, University of Uyo, Uyo, Akwa Ibom State. The University terminated the appointment of the appellant who then filed Suit No FHC/CA/CS/58/2002 in the Federal High Court Holden at Uyo challenging the termination of his said appointment. It was originally filed as Suit No FHC/CA/CS/58/2002 in the Federal High Court, Calabar and later transferred to Uyo and re-numbered. The defendants in the suit were the respondent herein as the 2nd defendant and University of Uyo and the Governing Council University of Uyo as the 1st and 3rd defendants respectively. The respondent was sued as the Registrar and Secretary to the 1st defendant. The defendants in the lower court were duly served the processes in the suit and while the suit was pending the respondent published in the Punch Newspaper of Friday 26th July 2002 the following disclaimer, exhibiting the photograph of the appellant:
“The authorities of the University of Uyo wish to inform the entire public that the person whose photograph appears below is no longer in the employ of the University of Uyo. Any person who deals with him on behalf of the University of Uyo does so at his or her own risk.”
Below the passport size photograph of the appellant was written his name: “Dr. Inih A. Ebong”.
Aggrieved by the said publication the appellant commenced committal for contempt proceeding against the respondent, having filed and served on the respondent forms 48 and 49: Notice of consequences of interference with the administration of justice and notice to snow cause why order of attachment should not be made respectively.
The respondent by way of preliminary objection impugned the committal proceeding as incompetent” for failure to comply with the Judgment (Enforcement) Rules. It was also argued that forms 48 and 49 were not issued and served on the contemnor/respondent. As ordered by the trial court the parties filed written addresses and adopted and relied on same at the hearing of the preliminary objection.
In a reserved ruling dated 26th June, 2003 the court below upheld the objection, holding that the committal proceeding was incompetent.
Against the ruling of the trial court the appellant appealed on 4 grounds herein reproduced, shorn of their particulars.
“GROUND ONE: Misdirection.
The learned trial Judge misdirected herself when she held that the Forms 48 and 49 filed by the appellant do not relate to the instant committal proceeding and are therefore irrelevant…
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when she reopened and/or revisit the issue of filing/issuance and service of forms 48 and 49 after she had earlier ruled on the issue while considering the preliminary objection of the contemnor.
GROUND THREE: ERROR IN LAW
The learned trial Judge erred in law in dismissing the motion for committal after holding that same was incompetent for non-issuance and service of forms 48 and 49 on the contemnor.
GROUND FOUR:
The ruling of the trial Court is against the weight of affidavit evidence.”
In pursuance of the rules and practice of the court the parties filed and exchange briefs of argument, with the appellant filing a reply brief.
In his brief of argument the appellant isolated the following four issues for determination.
“(a) Whether the trial Judge properly considered the case of the appellant vis-a-vis Forms 48 and 49 issued in 30th July, 2002 and 22nd October, 2002 respectively.
(b) Whether it was proper for the trial Judge to reopen and/or revisit the issue of forms 48 and 49 afotiori the competence of the committal proceeding after her earlier ruling while considering the preliminary objection of the respondent.
(c) Whether it was proper for the trial Judge to dismiss the committal application after finding same to be incompetent.
(d) Whether the ruling of the Lower Court was not perverse.”
In his own brief of argument learned counsel for the respondent gave notice that he will raise a preliminary objection to grounds one and four of the grounds of appeal from which issues (a) and (b) were distilled respectively. He agued the preliminary objection in his brief after which he formulated the following three issues for determination by the court.
“1. Whether the learned trial Judge having overruled respondent’s preliminary objection on non-compliance with the provision of Order 9 rule 13 (1) & (2) of the Judgments (Enforcement) Rules as to issuance and service of appropriate Forms 48 and 49 on the respondent as a precondition for setting in motion committal proceedings made pursuant to section 72 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1999 had become functus officio and consequently was fore-closed and/or inhibited from considering the relevance and applicability of Forms 48 (exhibit F) and 49 (exhibit G) when subsequently hearing on the merit appellant’s motion on notice for committal filed on 4th April 2003. If the answer to issue (1) above is in the negative.
- Whether the learned trial Judge was right in holding that the appellant’s motion filed on 4th April 2003 for the committal of the respondent to Nigeria Prison was fundamentally defective, incompetent and a nullity and accordingly dismissing the entire committal proceeding for reason that Forms 48 (exhibit F) and 49 (exhibit G) relied upon by the appellant in his affidavit in support of the said motion were irrelevant and inapplicable to the disclaimer in the Punch Newspaper of July 2002 (exhibit B) in which the said committal motion was anchored and/or noted.
- Whether the decision of the learned trial Judge as contained in the ruling appealed against was perverse.”
At the hearing of the appeal learned counsel for the appellant adopted and relied on his brief of argument as well as his reply brief and urged the court to allow the appeal. Learned counsel for the respondent adopted and relied on the respondent’s brief including the preliminary objection and the argument in respondent of same and urged the court to dismiss the appeal.
In his argument in issue one in his brief learned counsel for the appellant submitted, inter alia, that it was wrong for the trial court to rely on exhibits F and G as the said exhibits did not relate to the case before the court but were filed in a different case No. FHC/CA/C5/110/2001 now FHC/UY/C5/86/03. He argued that Forms 48 and 49 are germane to committal proceeding and that the service of the forms on the respondent was admitted at page 3 paragraph 4.03 of the written reply filed on behalf of the respondent. Learned counsel then argued that it is not in all cases of committal proceeding that forms 48 and 49 are issued and served on the contemnor, adding that the service of the forms are mandatory only where a positive order of the court is breached or is about to be breached. He submitted that the publication of the disclaimer is contemptuous making the respondent liable to be dealt with by the Court without the issuance and service of Forms 48 and 49. He urged the court to determine the committal proceeding on its merit based on affidavit evidence rather than ordering a retrial, for which he relied on State v. Ajie (2000) 80 LRCN 2513 No.5; (2000) 11 NWLR (Pt.678) 434.
In issue 2 counsel submitted that the lower court erred by revisiting the issue of Forms 48 and 49 and afotiori the competence of the committal proceeding, stating that in so doing the trial court over-ruled itself.
The appellant’s grouse in issue three is that the court dismissed the matter, as a nullity. Counsel argued that if the matter is a nullity it ought to have been struck out, not dismissed, adding that a dismissal cannot be ordered where the matter is not determined on the merit. He referred to Magaji Vs Matori (2000) 78 LRCN 1469 at 1472 No.3; (2000) 8NWLR (Pt.670) 722.
In issue 4 counsel summarized his argument and urged the court to hold that the decision of the trial court is perverse. He relied on State v. Ajie (2000) 80 LRCN 2513 No 7; (2000) 11 NWLR (Pt.768) 434. In conclusion he urged the court to answer each of the four issues in the negative and on the authority of State Vs Ajie (supra) to hear and determine the matter on the merit rather than making order for a retrial.
In his brief of argument learned counsel for the respondent in his argument in issue one, submitted that Forms 48 and 49 are intended as a precondition for setting in motion contempt proceedings against an alleged contemnor. Counsel argued that the earlier ruling of the court is to the effect that the appellant did file and service Forms 48 and 49 on the respondent and that the present issue is as to the relevance of the said forms in contempt proceedings emanating from Suit No FHC/UY/CS/144/03. According to learned counsel the issue of the Judge being functus officio or reopening an issue already decided will not arise as the court did not deal with the issue of relevance of the forms in the present case. He relied on Alao v. ACB Ltd. (2000) 79 LRCN 199 at 1947; (2000) 9 NWLR (Pt.672) 264 per Ogwuegbu JSC. He urged the court to resolve issue one against the appellant.
In Issue 2 counsel contended that the Forms exhibits F and G formed the plank of appellant’s motion on notice for committal relating to Suit No FHC/UY/CS/86/2003 which challenged the appellant’s suspension from duty. The said forms exhibits F and G, counsel argued, have no link with the committal proceedings arising from the disclaimer (exhibit B). Counsel argued further that the forms filed on 30/7/2002 and 22/10/2002 were not exhibits in support of the appellant’s motion on notice for committal filed on 4/4/2002. He further pointed out that the forms were not referred to in any of the 15-paragraph affidavit in support of the motion. He relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 735 where the Supreme Court held that:
“A document can be properly tendered by referring to it specifically in an affidavit.”
Counsel argued that the appellant’s claim that exhibit F and G were exhibited to draw attention to the repeated and persistent tendency of the respondent to treat court processes with disdain is an admission that the said Forms F and G were not relevant to the committal, proceedings arising from the disclaimer. He relied on Shugaba v. U.B.N. Plc (1999) 11 NWLR (Pt. 627) 459 in his argument that in any contempt proceedings the first step is to ascertain what was prohibited and the second is to determine if there is a breach of the prohibition. In this case, there being no Forms 48 and 49 filed in relation to the proceeding the same is incompetent, counsel argued on the authority of Sken-Consult (Nig.) Ltd Vs. Ukey (1981) 1 SC 6. Counsel pointed out that the appellant in his brief conceded that the case against the respondent
“is not for disobedience of court order as there has been no such order in this case.”
See page 5 of the appellant’s counsel’s written address at page 93 of the records. He argued that even though the appellant argued that forms 48 and 49 are not required in all cases it is not the appellant’s case that the forms are not required in the proceeding he initiated and since this case is predicated on the service of the forms the appellant will stand or fall by the procedure he had chosen to adopt. He relied on Globestar Eng. (Nig.) Ltd. v. Malle Holdings Ltd. (1999)10 NWLR (pt 622) 270 at 288. According to learned counsel the court made a final, not an interlocutory, ruling in the matter and whether to dismiss or strike out the matter was at the discretion of the trial court. He urged the court to resolve issue 2 in favour of the respondent.
In issue 3 learned counsel said the issue of preponderance will not arise in this case as the respondent did not file any counter-affidavit. He referred again to exhibit F and G (page 26 of the record) and said the forms are at variance and in conflict with the prayers in the motion for committal dated 4/4/03, rendering the entire proceedings a nullity. He cited Lawal-Osula v. U.B.N Plc (2003) 5 NWLR (pt 813) 376. On Forms 48 and 49 of 30/7/2002 and 22/10/2002 respectively which the appellant said are the fulcrum of the committal proceedings counsel submitted the forms were not referred to in the affidavit in support of the committal proceedings and are therefore not relevant. He relied on Shitta-Bey v. A.-G., Federation (1998) 61 LRCN 4528 (1998) 10 NWLR (Pt.570) 392 and Magnusson v. Koiko (1993) 12 SCNJ 114 at 132 – 133; (1993) 9 NWLR (Pt.317) 287. In any case counsel argued on the authority of A.-G., Anambra State VS. Okeke (2002) 99 LRCN 1540; (2002) 12 NWLR (Pt.782) 575 that the forms are not relevant as they were issued after the publication of the disclaimer.
On the order of dismissal made by the trial court based on the finding that the motion for committal was an incompetent learned counsel said the facts of Magaji v. Martins (supra) relied on by the appellant were not the same with the facts of the case at hand. He contended that the trial court was right in the decision that
“…the present committal proceeding are patently defective due to the appellant’s non-compliance with the condition precedent in setting committal proceeding in motion consequently, the application for committal proceedings is therefore a nullity.”
He said that the dismissal of the appellant’s motion was in line with the decisions in Osula’s case (supra) and Okafor’s case (supra) and that the said decision is not perverse. He urged the court to resolve the issue number 3 against the appellant. He urged the court to dismiss the appeal for want of merit.
In response to the preliminary objection raised by the respondent, the appellant in his reply brief said that Order 3 rule 1 (4) relied on by the respondent does not exist. Counsel argued that even if the objection was taken on Ord. 3 r 2 (4) of the Court of Appeal Rules grounds 1 and 4 of the grounds of appeal and issues (d) and (b) formulated there from respectively are valid.
On the respondent’s issue one, counsel for the appellant argued that Order 9 rule 13 (1)&(2) and Cap. 407, Laws of the Federation of Nigeria 1999 on which the issue is based do not exist and urged the court to strike out the issue as incompetent. In the alternative counsel argued that the lower court, having delivered a final ruling, had become functus officio and cannot reopen the issue of Forms 48 and 49. He relied on Onuaguluchi v. Ndu (2000) 11 NWLR (Pt. 679) 519 at 526; Alao v. ACB Ltd. (2000) 79 LRCN 1899 at 1907; (2000) 9 NWLR (Pt.672) 264.
On the respondent’s argument that Forms 48 and 49 issued and served on 30th July, 2002 and 22nd October 2002 respectively are not relevant as they were not exhibited in the supporting affidavit the counsel for the appellant said the issue was not raised in the court below and so cannot be raised on appeal. In alternative he argued that having admitted the service of the forms, the respondent cannot reopen and complain about the service already admitted. He relied on S. 75 of the Evidence Act. He said the Court was bound to take notice of the forms as the Court’s attention was drawn to same. Learned counsel cited a plethora of cases to show that the ruling of the trial court is perverse. He relied on Praying Band of C & S v. Udokwu (1991) 3 NWLR (Pt. 182) 716 at 733, Governor, Lagos State v. Ojukwu (1986) 1 ALL NLR (Pt. 1) 194, 202 – 203; (1986) 1 NWLR (Pt.18) 621, F.A.T.B.V. Ezegbu (1993) 6 NWLR (Pt. 297) 1 at 4; Registered Trustees Apostolic Church v. Olowoleni (1996) 6 NWLR (Pt. 158) 514, 519 – 521 and contended that once a court has been seized of a dispute, a party who interferes with the due administration of justice risks punishment for contempt. In conclusion learned counsel for the appellant urged the court to disregard the argument of the respondent on the issues canvassed and to allow the appeal and hear the application on its merits.
Before I proceed to deal with the appeal, I am constrained to restate the impropriety of the use of such pronouns as “he” or “she” in referring to a Judge in briefs of argument. I make this comment with reference to the appellant’s brief of argument replete with the word “she” in reference to the learned trial Judge. Gender should not be used in reference to Judges in briefs of argument and its use herein appears as deliberate as it is improper.
Learned counsel should not resort to essay writing in the guise of formulating issues for determination in an appeal.
In Ogbuanyinya & Ors. v. Okudo & Ors. (No.2) (1990) 4 NWLR (Pt. 146) 551 the Supreme Court pronounced on the purpose of formulation of issues. Karibi-Whyte, JSC emphasized, that:-
“the purpose, as this court has often stated, is to enable the parties narrow the issue in the grounds of appeal filed in the interest of accuracy clarity and brevity”. (Italics mine for emphasis).
The issues formulated by learned counsel for the respondent are verbose and involved.
I shall now determine the appeal. Learned counsel for the respondent relied on his alleged notice of preliminary objection, which he argued in his brief. A respondent intending to rely on preliminary objection to the hearing of appeal has to comply with Order 3 r. 15 (1) of the Court of Appeal Rules, 2002, hereunder reproduced: Ord. 3 r. 15(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.”
The respondent did not comply with the above order. Rather, under the heading “Issues for determination” the respondent said:
“Respondent will at the hearing raise preliminary objection notice of which is hereby given, to grounds one and four from which issues (a) and (d) respectively are distilled.”
See page 4 paragraph 3.02 of respondent’s brief. The respondent did not file twenty copies of any notice with the Registrar of the court as he filed no such notice in court. There is no notice filed in accordance with Order. 3 r. 15 (1) and pursuant to Ord. 3 r. 15(3), I will disregard the purported notice and arguments advanced for, and against it, by learned counsel for the parties.
This appeal can be determined on two of the four issues raised by the appellant. Issue 2 in the appellant’s brief is more or less the same as issue one in the respondent’s brief. Appellant’s issue 3 is the same as the respondent’s issue 2.
I will therefore determine the appeal on the appellant’s issues 2 and 3, hereunder renumbered 1 and 2 and reproduced:
Issue 1. Whether it was proper for the trial Judge to reopen and/or revisit the issue of Forms 48 and 49 afotiori the competence of the committal proceeding, after her earlier ruling while considering the preliminary objection of the respondent.
- Whether it was proper for the trial Judge to dismiss the committal application after finding same to be incompetent.
In issue one herein, both parties agree there was an earlier preliminary objection based on alleged non-service of Forms 48 and 49 by the appellant on the respondent. The trial Court over-ruled the objection, holding that the appellant indeed served forms 48 and 49 on the respondent. The appellant appears to confuse the issue of whether or not the forms were served on the respondent with the different issue of whether or not the forms are relevant in the proceedings. What the trial court determined to finality in the earlier preliminary objection is that the respondent was served with Forms 48 and 49 by the appellant, that was the issue before the court and the court did not go beyond that issue. In the preliminary objection, which gave rise to this appeal the trial court has an obligation to ascertain whether or not, the forms served on the respondent in a different matter are relevant to the proceedings. The court found that the forms served did not relate to the motion for committal and rightly rejected them. From the prevarication in the appellant’s argument in his brief one can discern an admission that the appellant did not serve the Forms exhibit F and G on the respondent as exhibits in the motion for committal. This can be inferred from the appellant’s argument that forms 48 and 49 are not a requirement as no court order was involved. In other words, it is the appellant’s case that the lower court should have determined his application for committal based on his affidavit evidence in which no reference was made to forms 48 and 49. I have scrutinized exhibits F (form 48) and exhibit G (form 49) Suit No FHC/UY/CS/144/03 in which it is sought to punish the respondent for interfering in the administration of justice is not mentioned in any of the forms. Even if the forms are not necessary, as the appellant argued and were exhibited to show that the respondent had habitual disdain for court orders, contempt on the facts before the court cannot be committed in vacuo. There must be a proceeding in relation to which the contempt is committed. Exhibits meant to show that the respondent habitually disobeyed court order may be relevant after the respondent has been adjudged guilty of contempt in a particular case. The respondent cannot be convicted for contempt merely because he had disobeyed court orders previously. It is the duty of the appellant who wants the court to punish the respondent as contemnor to present the evidence of the contempt committed by the respondent in the proceedings. A motion requiring the respondent to show cause why he should not be committed for contempt of court is an application affecting the liberty of the respondent. Such a motion is always regarded and treated by the courts as a matter strictissimi juris see Kwesi Enimil v. Kwesi Tuakyi & Anor (1952) 14 WACA 1. The main relief sought by the appellant in the lower court is here under reproduced:
“1. An order committing the contemnor/respondent Mr. Peter Jerome Effiong, Registrar and Secretary to Council, University of Uyo, to a Nigeria Prison for contempt of Court for publishing a disclaimer of the plaintiff applicant at page 28 of the Punch Newspaper Vol. 17 No 18613 dated Friday, July 26, 2002 during the pendency of proceedings in this suit and after he had been duly and properly served with the writ and statement of claim on July 3, 2002 and had on July 8, 2002 entered appearance in the suit”.
Though the suit referred to is suit No FHC/UY/CS/144/03 the appellant’s motion is without foundation. The appellant in his quest to punish the respondent for contempt of court cannot dispense with Forms 48 and 49 and exhibits F and G relied on by the appellant were not exhibited in the motion and had no reference to the suit in which the alleged contempt was committed. In view of the likely result of this appeal, I shall refrain from commenting on the timing of exhibits F and G in relating to the publication of the disclaimer or whether or not the said publication during the pendency of the suit amounts to contempt or interference with the due administration of justice. In my humble view the lower court was right in holding that exhibits F and G are not relevant to the contempt proceedings. This point was not an issue before the lower court in the earlier preliminary objection. It can therefore not be said that the court over-ruled itself or reopened or revisited an issue already decided. Issue one is resolved against the appellant.
Issue 2 raises the issue of the proper order the court, can make, having found the motion incompetent. It is the appellant’s case that the trial court should have struck out the motion instead of dismissing same. The words “dismissed” and “struck out” may appear to be used interchangeably but their meaning may depend on the con of their use. See Yonwuren v. Modern Signs (Nig.) Ltd. (1985) 2 SC 86 at 110; (1986) 1 NWLR (Pt.2) 244. The meaning of each of the two words will depend on the finding of the court leading to its use. In his preliminary objection the respondent attacked the motion for his committal for contempt on the ground that certain procedural steps were not taken before the motion were filed. The trial court, found that the motion was incompetent and dismissed it. The word “dismissed” as used by the learned trial Judge is no magic wand to transform one thing into another. It takes its meaning in the con of the proceedings in which it is used. Though used interchangeably with the words “struck out” (see Yonwuren v. Modern Signs (Nig.) Ltd. (supra), the word dismissed in its meaning and import, will depend on whether or not the matter, in the proceedings in which it is used is res judicata. Issue No.2 appears to me a fruitless exercise in semantics. The issue is resolved against the appellant.
In conclusion, I find no merit in the appeal and it is hereby dismissed.
Each party shall bear his own costs.
Other Citations: (2006)LCN/2102(CA)
