Igwe Josiah Agu & Ors. V. Ozo I. O. U. Anyalogu & Ors. (2001)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the ruling, handed out by Ugwu, J., as he then was, sitting at Enugu High Court, on 16th April, 1997.
It is apt to state briefly, the background facts leading to the above stated ruling under fire. On 3-5-94, Onyia, J. made an order in favour of the plaintiffs/appellants herein, against the defendants/respondents in the following terms:-
“An interlocutory injunction restraining the defendants jointly and severally by themselves, their agents, privies and servants from installing the 1st defendant as the first Esaa or Esaa I of Ngwo Asaa or in any manner whatsoever, holding out himself as the Igwe or Igwe elect of Ngwo Asaa by whatever name called pending the determination of the substantive suit.”
The 1st defendant/respondent felt dissatisfied with the ruling. He appealed to this court and the suit number of that appeal is CA/E1105/96. He filed appellant’s brief of argument, dated 12-6-96 therein. Same was served on the present appellants’ counsel.
Vide the motion on notice, dated 12-2-97 and filed on the same date, the appellants herein prayed for an order committing the 1st respondent to prison for disobeying court order. Reliance was placed on Order 35 of the High Court Rules, 1988.
A notice of preliminary objection, dated 18-2-97, was filed on behalf of the respondents in this appeal. Relevant grounds of objection, as deposed to in supporting affidavit, are that there is an appeal pending on the ruling in this court and Forms 48 and 49 were not served on the 1st respondent. In substance, the respondents maintained that the application for committal of the 1st respondent to prison for contempt was incompetent.
Counsel for both sides, addressed the trial Judge. In the well considered ruling of 16-4-97, he upheld the preliminary objection and dismissed the plaintiffs/appellants’ application for committal dated and filed on 12-2-97.
The appellants herein, being dissatisfied, filed their notice of appeal which complained against the ‘whole decision’. Three grounds of appeal accompanied the notice of appeal. From the three grounds of appeal, each side of the divide formulated two issues for determination in this appeal.
The appellants couched their own two issues for determination as follows:-
“(i). Whether Order 35 of the High Court Rules of Anambra State, 1988, applicable to Enugu State, is a valid enactment and applicable in the circumstances, and if so, whether the plaintiffs complied with its provisions.
(ii) Whether the fact that the defendant had appealed against the order against which the said contempt was committed divested the trial court of its jurisdiction to entertain the said application for committal in the absence of an order for stay of execution of the said order or an application for same.”
The two issues formulated on behalf of the respondents herein are as follows:-
“1. Where an appeal has been entered in the appellate court, does the court from which the appeal emanates continue to exercise jurisdiction over the proceedings between the parties.
- Whether proceedings for committal for contempt can validly be taken under Order 35 of the Anambra State High Court Rules of 1988, without regard to the provisions of Order 9 rule 13 of the Sheriffs and Civil Process (Judgments Enforcement) Rules.”
When this appeal was called for hearing on 8-2-2001, the appellants were absent. No counsel represented them. Since a brief of argument had been filed on their behalf, this appeal was taken as argued by them. This tallies with the dictates of Order 6 rule 9 (5) of the Court of Appeal Rules, 1981, as amended.
Though couched in different forms, issue No.2 of the appellants points to the same direction with issue number 1 of the respondents, It touches on the competence of the trial court to continue exercising jurisdiction over the proceedings between the parties after an appeal had been entered in this court. It is neater to consider this issue at this point in time since it relates to the competence of the trial court.
Arguing this issue, S.I. Chime Esq., learned Counsel for the appellants, contended that the learned trial Judge wrongly applied the case of Ezomo & Anor v. A-G., Bendel State (1986) 4 NWLR (Pt.36) 448, (1986) 2 NSCC (vol. 17, Pt.2) 1154 to the case before him. Learned Counsel observed that uptill the time the objection was taken at the trial court, there was no order for stay of execution of the order of interlocutory injunction appealed against by the respondents herein. He maintained that there was infact no application pending in any court praying for stay of execution. He referred to section 18 of the Court of Appeal Act, 1976, which provides that appeal in civil cases does not operate as a stay of execution. Learned Counsel cited the case of L.B. Ezekiel-Hart v. Chief George E. Hart (1990) 1 NWLR (Pt.126) 276, (1990) NSCC (Vol.21 Pt. 1) 184. Learned Counsel, on this issue, finally submitted that the trial court was clearly in error to have cited the pendency of the respondents’ appeal as one of the grounds for dismissing the plaintiffs/appellants’ motion for committal of the 1st respondent to prison.
Arguing the common issue, Mrs. A.J. Offiah, learned Counsel for the respondents, observed that there is agreement that when the motion for committal was filed and served on the respondents, the appeal filed by them against the interlocutory ruling of the High Court had been entered in this court. The record of proceedings had been transmitted to this court. The present respondents, as appellant therein, had filed their brief of argument.
Learned Counsel submitted that an appeal is ‘brought’ when the notice of appeal had been properly filed at the trial court and is deemed to have been ‘entered’ when the appeal court has received the record of appeal. Learned Counsel referred to the cases of Ogunremi v. Dada (1962) 2 SCNLR 417, (1962) 1 All NLR 663; Margaret Ezeokafor v. Emmanuel Ezeilo (1999) 9 NWLR (Pt.619) 513 at 524,525-527,536.
Learned Counsel submitted that as soon as an appeal is entered in the appellate court, the lower court ceases to have jurisdiction. She contended that the position has to be so to obviate the possibility of both the lower court and the appellate court entertaining various applications simultaneously and making orders which may turn out to be conflicting. She also cited Ezomo v.A.-G. Bendel State (1986) 4 NWLR (Pt.36) 448.
Learned Counsel asserted that this issue calls for a close examination of the true meaning and effect of Order 1 rule 22 of the Court of Appeal Rules, 1981. As soon as an appeal is entered in the appellate court, it becomes seised of the whole of the proceedings as between the parties. She submitted that in effect, the jurisdiction of the High Court to entertain proceeding for contempt under Order 35 of the High Court Rules or even under Order 9 rule 13 of the Judgments Enforcement Rules in respect of the suit abates after appeal was entered in this court and until disposal of the same. She referred to Ezeokafor v. Ezeilo (supra) where the Supreme Court considered the effect of entry of appeal under Order 8 rule 11 of the Supreme Court Rules, 1985, which is in pari materia with Order 1 rule 22 of the Court of Appeal Rules. Learned Counsel then urged that this appeal be dismissed.
It is necessary to ascertain when an appeal is ‘brought’ and when it is ‘entered’. It is now beyond dispute that an appeal is ‘brought’ as soon as the original notice of appeal with attendant ground or grounds of appeal is filed at the trial court. It is from same that one can readily surmise whether it was filed within time or not. An appeal is deemed to be entered when the appellate court has received the record of appeal. The cases of Ogunremi v. Dada (supra); Adewoyin v. Adeyeye (1962) 1 SCNLR 91; Ezeokafor v. Ezeilo (supra), all cited by the learned Counsel for the respondents, are directly in point and of moment.
It is not in contention that the appeal against the ruling of the trial court dated 3-5-94, has been entered in this court. The suit number of that appeal is CA/E/105/96. The appellants’ brief of argument therein has been filed. Same was said to have been served on the present appellants’ counsel. Put clearly, the issue here is whether with the position of things as stated, the appellants herein can be allowed to cite the 1st respondent herein for contempt with a view to committing him to prison? If allowed to proceed with their ‘prosecution’ of the 1st respondent in the prevailing circumstance, can such be taken as realistic?
I must say here, that those behind the making of Rules of court have considerable foresight. This is why they insert provisions to plug loop-holes which can lead to absurdity and ensuing mishaps.
Order 1 rule 22 of the Court of Appeal Rules, 1981, as amended, which is in pari materia with Order 8 rule 11 of the Supreme Court Rules, 1985, is one of such provisions dictated by fore-sight and ingenuity.
In dealing with the issue presently under consideration, it is imperative to closely examine the real essence and effect of Order 1 rule 22 of the Court of Appeal Rules, 1981, as amended. It reads as follows:-
“After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in these Rules, every application therein shall be made to the court and not to the court below, but any application may be filed in the court below for transmission to the court.”
It is clear from the above quoted rule that, as soon as the appeal was entered in this court, it becomes seised of the whole proceedings as between the parties over the res. As defined in Black’s Law Dictionary, 5th Edition at page 1218, ‘to be seised of’ means ‘to be in possession of’. As soon as the appeal was entered in this court, the res in the proceedings ceases to be in possession of the trial court. This court and the trial court cannot be seen to compete over the res.
In Ezeokafor v. Ezeilo (supra) the Supreme Court considered Order 8 rule 11 of the Supreme Court Rules, 1985. In the case, it is common ground that the appeal in respect of the lower court’s ruling on the application for order of injunction was entered in the Supreme Court on 14-6-90. Achike, JSC, maintained pointedly that by the clear provisions of Order 8 rule 11, he agreed with the Court of Appeal that it was correct to decline to entertain the application for injunction after appeal against the ruling of the court below had been entered in the Supreme Court.
Ezeokafor v. Ezeilo (supra) is quite apposite with this present matter. See also Ezomo v. A.-G., Bendel State (1986) 4 NWLR (pt.36) 448 at page 451. Therefore, by parity of reasoning, I respectfully agree with the trial High Court that it was correct, when it declined to entertain the application for the committal of the 1st respondent after the appeal against the ruling of the Court below had been entered in the Court of Appeal.
I commend the trial Judge for standing his ground despite all undue prompting in the negative direction. His stance was backed with a lot of sense as the position has to be so to obviate the possibility of both the lower court and the appellate court entertaining various applications simultaneously and making orders which may turn out to be conflicting. Without mincing words, I resolve this common issue in favour of the respondents herein.
Appellants’ 1st issue appears to point to the same direction with the respondents’ 2nd issue for determination. It is whether proceedings for committal for contempt can validly be taken under Order 35 of the Anambra State High Court Rules of 1988, without regard to the provisions of Order 9 rule 13 of the Sheriffs and Civil Process (Judgments Enforcement) Rules.
In arguing this issue, appellants’ counsel asserted that Order 35 of the High Court Rules covered his application to commit the 1st respondent to prison for contempt. Learned counsel submitted that the learned trial Judge was in serious error when he considered compliance with the Sheriffs and Civil Process Rules as a condition precedent to an application for committal under Order 35 of the High Court Rules. He maintained that a court should not ‘fill in the gap’. He referred to I.B.WA. Ltd. v. Imano (Nig.) Ltd. & Anor (1988) 3 NWLR (Pt.85) 633, (1988) NSCC (vol. 19) (Pt. 11) 245; Magnor & St. Melons Rural District Council v. Newport Corporation (1952) A.C. 189 at 191; D. E. Okumagba v. W.G. Egbe (1965) N.S.C.C. (vol.4)46; Chief D.O. Ifezue v. Mbadugha & Anor (l984) I SCNLR 427 at 447; Bronik Motors Ltd. & Anor v. Wema Bank Ltd (1983) 1 SCNLR 296; Osita Nwosu v. Imo State Environmental Sanitation Authority & Anor (1990) 2 NWLR (Pt.J35) 688, (1990) 2 NSCC vol. 21 (Pt. 11) 108.
Learned Counsel further contended that if the two rules are held to be equally applicable, section 57 of the Interpretation Law, Cap. 73 Laws of Anambra State, 1986, applicable to Enugu State, provides that an offender should be prosecuted under either of the laws. He felt that the provisions of Order 35 of the High Court Rules, apply to disobedience to interlocutory orders while the Judgments (Enforcement) Rules apply to final orders of court. He felt strongly that the application was rightly taken under Order 35 of the High Court Rules, 1988.
In arguing the 2nd issue, learned Counsel for the respondents observed that Order 35 of the High Court Rules emanates from a State Legislation, while Order 9 rule 13 of the Judgments (Enforcement) Rules made pursuant to section 71 of the Sheriffs and Civil Process Act/Law derives both from a Federal Act and a State Law. She felt that the two rules are designed to achieve the same purpose and that both should be invoked on the doctrine of covering the field. She referred to Chikelue v. Ifemeludike (1997) 1 NWLR (Pt.529) 390 at page 403. She contended that applying the above principle, the appellants were obliged to adopt the procedure provided by Order 9 rule 13 of the Judgments (Enforcement) Rules made pursuant to section 71 of the Sheriffs and Civil Process Law. Learned Counsel then maintained that Forms 48 and 49 were necessary so as to give the contemnor adequate opportunity of purging himself. She referred to the cases of Ojeme v. Momodu II (1995) 6 NWLR (Pt.403) 583 at 587, lkimi v. Godwin Omamuli (1995) 3 NWLR (Pt.383) 355; Kadiri v. Kadiri (1990) 2 NWLR (PU53) 65.
Learned Counsel for the appellants made submissions galore on his pet idea that the learned trial Judge tried to ‘fill in the gap’ when he said that the 1st respondent ought to have been served with Forms 48 and 49 as dictated by the Sheriffs and Civil Process Rules. He cited a host of authorities with relish. With due diffidence to the learned Counsel, I strongly feel that due consideration of those authorities should be reserved for an appropriate occasion.
The learned trial Judge appreciated that as a Judicial officer, he is a custodian of the liberty of the citizen. While being called upon to commit the 1st respondent to prison, the learned trial Judge retained his milk of human kindness and wit. He had to be fair in his trial of the 1st respondent and firm as well. The aims and objects of Order 35 of the High Court Rules and Order 9 rule 13 of the Judgments (Enforcement) Rules are designed to achieve the same purpose. Vide Order 9 rule 13 of the Judgments (Enforcement) Rules, Forms 48 and 49 must be duly served on the contemnor. These are designed to give him adequate opportunity to purge himself of the contempt and comply with the court order failing which proceedings for his committal could be commenced. Order 35 of the High Court Rules has no similar provisions. I agree with learned Counsel for the respondent that contempt proceedings, being quasi-criminal in nature, requires adequate compliance with legal requirements. I see no reason why the more liberal provisions in Order 9 rule 13 of the Judgments (Enforcement) Rules should be discarded as strongly contended by the appellants’ counsel. I cannot trace any sound reason why the provisions of both rules should not be married together for the ‘trial’ of the 1st respondent out of abundant caution and for fairness to the 1st respondent. This court, at it’s Benin Division, in Ojeme v. Momodu II (supra) at page 588 had occasion to pronounce on a similar issue. Ubaezonu, JCA, put his view graphically as follows:-
“I do not think that the law of this country regarding the freedom of individual has descended to such abysmal depth of ‘rough and ready justice’ of medieval era that a person shall be thrown into prison for contempt… without giving him an opportunity to retrace his steps. It is therefore, my firm view that in a committal preceding the two laws shall be married together by observing the provisions of S.63 of the Sheriffs and Civil Process Law and complying with requirements of Order 9 rule 13 of the Judgments (Enforcement) Rules. It is after that, that an application under Order 42 of the 1988 Edict, shall be made to the court. Failure to comply with the aforementioned procedure makes the committal proceedings patently defective and any order made thereon a nullity.”
The above quoted pronouncement, to date, remains inviolate. I only need to say the obvious that I endorse same. I strongly feel that the learned trial Judge rightly applied the relevant ratio in Ojeme v. Momodu II (supra) as it is apposite to the facts and Laws/Rules applicable to this matter.
In passing, I should state that since the res is no longer in possession of the trial court as earlier found, application of Order 35 of the High Court Rules or even Order 9 rule 13 of the Judgments (Enforcement) Rules becomes an impossible task. A court cannot operate rules when it has no res. I resolve appellants’ 1st issue, which is the respondents’ 2nd issue in favour the respondents.
In conclusion, the appeal against the ruling of the trial Judge, dated 16-4-97, lacks merit. It is accordingly, dismissed in its entirety. The appellants shall pay N3,000 costs to the respondents.
Other Citations: 2001)LCN/0971(CA)
