International Bank for West Africa (Now Afribank Nigeria Plc) V. Fola Sasegbon (2007)
LawGlobal-Hub Lead Judgment Report
GALINJE, J.C.A.
This is an appeal against the ruling of the Lagos High Court presided over by Abiru, J. which was delivered on the 16th June, 2005, in which the learned trial Judge dismissed the preliminary objection dated 22nd November, 2004 and filed by the appellant against the issuance and service of Form 48 on it.
The respondent herein, as claimant at the lower court commenced an action by writ of summons dated 27th of February, 1981, against several parties, among who is the appellant, who was the 4th defendant. Parties filed and exchanged pleadings. Thereafter all the parties in that suit, executed a terms of settlement which was subsequently made the judgment of the court dated 1st August, 1983.
After the consent judgment aforesaid, the respondent alleged that the appellant herein refused to comply with the consent judgment and therefore commenced contempt proceedings against it by causing the registrar of the lower court to issue Form 48 which is notice of consequences of disobedience of the order of court dated 8th of December, 2003, for service on the appellant and its legal adviser who is also its secretary. The notice was accordingly served on the appellant. In reaction to the service aforesaid, the respondent filed a notice of preliminary objection dated 22nd January, 2004, in which he prayed that the Form 48 notice be set aside, dismissed or struck out. The grounds upon which the appellant’s prayer was predicated are:-
“1. The service of the process was (sic) not properly affected:
- The claimant did not comply with the provisions of the Sheriff and Civil Process Act on the enforcement of judgment:
- The entire proceedings taken herein by the claimant is an abuse of court process; and
- The court has no jurisdiction to entertain the proceedings.”
The learned trial Judge heard the preliminary objection and in a considered ruling delivered on the 16th of June, 2005, same was dismissed and the committal proceeding was adjourned for hearing. It is against this ruling that the appellant has brought this appeal. The notice of appeal dated 21st June, 2005, contains seven grounds of appeal. This notice of appeal is at pages 220 – 230 of the record of this appeal.
In line with the relevant rules of this court parties filed and exchanged briefs of argument the appellant’s brief dated 11th April, 2006 and filed on 12th April, 2006, four issues have been distilled from the seven grounds of appeal. These issues read as follows:-
“(i) Whether the learned trial Judge was right to have discountenanced the address of counsel on the issue of abuse of court process since facts about the abuse of court process were not disposed to in the affidavit supporting the preliminary objection;
(ii) Whether the learned trial Judge was right in holding that the service of the notice on the fourth defendant was in accordance with the rules of court and therefore proper;
(iii) Whether the learned trial Judge was right in putting the onus on the appellant to convince the court that he was not personally served thereby shifting the burden of proof from the respondent to the appellant;
(iv) Whether the language of the Honourable court was fair to the appellant in the circumstances thereby making the appellant’s complaint of bias by the court untenable.”
Mr. Olutayo Omole, learned counsel for the respondent, on the 30th May, 2006, filed the respondent’s brief of argument. In the brief, he incorporated a preliminary objection to the competence of the appeal. Learned counsel also formulated three issues for determination of the appeal in case his preliminary objection fails. These issues also read as follows:-
“3.1 Despite the appellant’s written address, was the learned trial Judge justified in not holding that the issue and service of Form 48 on the appellants constituted an abuse of process of court?
3.2 Whether the learned trial Judge rightly held that the appellants were validly served with Form 48 in this suit.
3.3 Did the learned trial Judge Show bias in favour of the respondent in overruling the appellant’s preliminary objection concerning the issue of service of Form 48 and thereby occasioned a miscarriage of justice?”
Order 3 rules 15(1) provides that 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. Although, it is preferable to commence such preliminary issues by a motion on notice, a preliminary objection can be given in the respondent’s brief. Where this is done, the party filing it must ask the court for leave to move the notice of objection before the oral hearing of the appeal commences otherwise the preliminary objection will be deemed waived and therefore abandoned. In other words, while notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief prayed for.
See Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285; Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166 at 178 paras. D-E.
A preliminary objection incorporated in the brief of argument must be resolved first before the main appeal. See: Odu v. Aghor-Hemeson (2003) 1 NWLR (Pt.802) 624.
In the instant appeal, although the respondent incorporated his preliminary objection in his brief of argument, his submissions in respect of same are mingled and spread out along with the submissions on the issues for determination of the main appeal. This procedure made it difficult for the respondent to move the notice of preliminary objection before the oral hearing of the appeal commenced, even though Mr. Shamsudeen, learned counsel for the appellant, urged him to do so. Having failed to argue the preliminary objection, same is deemed waived and abandoned by the respondent. Accordingly the respondent’s preliminary objection is struck out.
While being heard viva voce, Mr. Shamsudeen identified the appellant’s brief of argument and went on to adopt and relied on the argument contained therein. He verbally related the issues framed by him to the grounds of appeal and finally urged this court to allow the appeal.
The respondent who appeared in person tried to argue the preliminary objection albeit belatedly by identifying the objection in the brief. He also identified the brief of argument and adopted the argument contained therein. Finally, learned counsel urged the court to dismiss the appeal.
The respondent’s argument on the main appeal starts from page 6, paragraph 4.5 and it is titled “Question as to merits of the appeal itself’. Instead of arguing any or all of the issues formulated in the respondent’s brief of argument, learned counsel argued grounds 1 and 2 of the grounds of appeal. Clearly, the arguments herein are at large and not supported by any of the issues framed by the respondent. In this court, briefs are argued on the basis of the issues formulated by the parties and not on the grounds of Appeal. See N.N.B. Plc v. Imonikhe (2002) 5 NWLR (Pt.760) 294; Acme Builders Ltd v. Kaduna State Water Board (1999) 2 NWLR (Pt.590) 288. Therefore, where an issue is abandoned in argument, it is taken that the issue raised and the ground of appeal to which it relates are abandoned. See Shell Petroleum Development Company (Nig) Ltd v. Tiebo VII (1996) 4 NWLR (Pt.445) 657.
The respondent did not tie any of the issues formulated by him to any of the grounds of appeal. The 1st issue having been abandoned in argument, the argument submitted on grounds 1 and 2 are hereby struck out. The respondent’s 3rd issue for determination is also abandoned in favour of arguing ground 7 of the grounds of appeal. Same and the argument on the 7th ground of appeal are also struck out.
The respondent’s only surviving argument is the one he sets out under the title “Impeaching the merit of the appeal in issues 2 and 3 for determination.” The presumption here is that the respondent argued issues 2 and 3 together. This I will consider along with the issues formulated by the appellant for the determination of this appeal.
Mr. Tony Mgbeokwere, learned counsel for the appellant, argued the issues formulated by the appellant in the order in which they are set out in the appellant’s brief of argument. On issue one, learned counsel submitted that the learned trial Judge was wrong to have discountenanced the address of counsel on the issue of abuse of court process on the ground that the facts constituting the abuse of court process were not deposed to in the affidavit in support of the preliminary objection.
Learned counsel’s contention is that abuse of court process is an issue of law and the appellant did not need to depose to it in its affidavit. In a further argument on this issue, Mgbeokwere Esq., counsel for the appellant submitted that a consent judgment cannot be enforced by the issuance of Form 48 as it is an arrangement whose implementation depends on the spirit of the parties, which entered into it. Finally, learned counsel contended that the issuance of Form 48 by the respondent is nothing but to irritate, annoy and harass the appellant. In support thereof, learned counsel cited the authority in Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 169 ratio 20.
An abuse of court process is a product of facts. When the facts leading to an abuse of court process are not disclosed sufficiently, it is difficult for a court or tribunal to hold that an abuse of court process has been occasioned. The disclosure of such facts before a court is done through an affidavit evidence. In absence of such disclosure, the lower court was right when it discountenanced the address of counsel on the issue of abuse of court process on the ground that the facts constituting the abuse of court process were not deposed to in an affidavit. For counsel’s address must be predicated on facts before the Court. See Fatoba v. Ogundahunsi (2003) 14 NWLR (Pt.840) 323. Consent judgment is a judgment of court. Although parties to such consent judgment are generally not allowed to appeal against such negotiated decisions, it is nonetheless enforceable just like any judgment in case of non-compliance. See S.P.D. C. Ltd. v. Adamkue (2003) 11 NWLR (Pt.832) 533. Mr. Mgbeokwere, learned counsel for the appellant, submitted in argument that enforcement of a consent judgment can only be by an arrangement whose implementation depends on the spirit of the parties that entered into it. With respect to the learned counsel, I do not agree with this view. The judicial powers which S. 6(6) of the Constitution of the Federal Republic of Nigeria, 1999, vests in the High Court as a Court of superior records extend to all inherent powers and sanctions of a court of law and any court of superior records has an inherent power to enforce its decisions. Since the consent judgment under reference is a judgment of the lower Court, that Court has an inherent power to enforce same. If the parties were at liberty to implement the terms of settlement, they would have not submitted the terms of the settlement to the jurisdiction of the court to be made its judgment.
The complaint of the respondent at the lower court is that the appellant is in disobedience of the judgment of the court. Order 9 rule 13(1) of the Judgment (Enforcement) Rules of Lagos State, 2003, provides as follows:-
“When an order enforceable by committal under S.72 of the law has been made the registrar shall, if the order was made in the absence of the judgment debtor and is for delivery of goods without the option of paying their value or is in the nature of any injunction, at the time 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.”
Clearly Order 9 rule 13(1) herein provides for the issuance of Form 48, where there is a complaint of disobedience of court order. This procedure is aimed at giving notice to anyone believed to be in contempt of an order of court that unless he takes steps to comply with the court order in question he would be committed to prison for contempt of the said order. However, if the person upon whom Form 48 is served, takes immediate steps to comply with the said order of court, all he needs to do is merely to immediately inform the court that he has complied with the order; there would be no need to proceed further with him.
See Odu v. Jolaoso (2003) 8 NWLR (Pt.823) 547; (2005) 2-3 SC 116.
What the appellant was required to do was to either take steps to comply with the order of the court, or where such order had been complied with, to immediately inform the court that it had complied with the said order. Its application to set aside Form 48, which was validly issued, was done to undermine the inherent powers of the court to enforce its decision.
I am therefore of the firm view that the learned trial Judge is right to have discountenanced the address of counsel on the issue of abuse of court process. This issue is therefore resolved in favour of the respondent and the grounds upon which it is distilled are hereby dismissed.
The second issue is whether the learned trial Judge was right in holding that the service of Form 48 notice on the 4th defendant is in accordance with the rules of court, and therefore proper.
It is to be noted that the 4th defendant that is referred to in this issue is the appellant herein. Mr. Mgbeokwere, learned counsel for the appellant submitted on this issue that even though the appellant can sue and be sued, it cannot face a charge of contempt because it is not a human being. In a further argument learned counsel submitted that for a corporate body to be charged with contempt, an officer of the corporate body has to be charged in its stead, and when such officer is charged, the law requires that such officer should be personally served with all the process. In aid, learned counsel cited the authorities in FCMB v. Abiola & Sons Ltd. (1991) 1 NWLR (Pt.165) 14; Military Governor of Kwara State v. Afolabi (1991) 6 NWLR (Pt.196) 212; Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Obimonure v. Erinosho (1966) 1 All NLR 250 and Sken Consult v. Ukey (1981) 1 SC 6.
Still in argument, learned counsel submitted that the ex-parte order of the trial court was not personally served on the appellant but was dropped on the floor of its reception area. According to the learned counsel it is clear that the respondent did not comply with the requirement of the rules of the court requiring that committal processes should be personally served on the alleged contemnors.
Finally, learned counsel urged the court to hold that there was no service of Form 48 on the appellant.
In reply to the submission herein, Olutayo Omole, who prepared the respondent’s brief submitted that the averments in the bailiff’s affidavit of 9th December, 2003, that the appellant was properly served has not been contradicted as such the lower court was right in holding that there was proper service on the appellant. In aid, learned counsel cited Ejikeme v. Ibekwe (1997) 7 NWLR (Pt.5 14) 592 at 598; H.T Ajomole v. J. E. Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266 at 270.
A company being a juristic person that can sue and be sued is capable of being subject to contempt charge. Once there is an allegation of contempt of court orders by a company, the veil of incorporation would be lifted in order to hold the principal officers of the company who participated in the acts leading to the contempt charges responsible. This is so because contempt charges are by their nature criminal or quasi criminal charges and a company can only be liable for contempt through its officers. See McKeown v. Joint Stock Institute Ltd. (1899) 1 Ch. 671; Benabo v. W Jay partners Ltd. (1941) Ch. 52; Iberian Trust v. Founders-Trust Investment Co. Ltd. (1932) 2 KB 87.
However, for any of the principal officers to be held liable, personal service on such officers must be affected. See Mckeown v. Joint Stock Institute Ltd. (supra).
In the instant appeal, the learned trial Judge, after having examined the provision of Order 7 rule 1 of the High Court of Lagos State Civil Procedure Rules, 1994, which provides for service of court processes on corporation or registered company came to conclusion that the service as described by the bailiff in the affidavit of service sworn to on the 9th of December, 2003, was personal service of Form 48 on the appellant and Mr. Bashir Wali, the Legal Adviser/Secretary of the appellant. I entirely agree with the learned trial Judge on this score.
The bailiff of the court in the said affidavit of service deposed that he served Form 48 notice on the Legal Adviser/Secretary of the appellant at No.51/55 Broad Street, Lagos, which is the registered office of the appellant, and the Legal Adviser/Secretary refused to sign for collection.
The appellant admitted that the notice was left at the office of the appellant. Surely, where the contents of the notice was made known to the Legal Adviser/Secretary of the appellant, leaving such notice in the appellant’s registered office amount to personal service. For one of the ways of effecting service on a corporation or a company is by leaving the process at the registered office of the company or by leaving the process at the principal place of business of the company within jurisdiction. See Cash Affairs Finance Ltd. v. Inland Bank Nigeria Plc (2000) 5 NWLR (Pt.658) 568; Daniels v. Insight Engineering Co. Ltd. (2002) 10 NWLR (Pt.775) 231.
Finally, on the issue of service, the only way of challenging an affidavit of service sworn to by the bailiff is to file a counter affidavit in rebuttal. In Fatokun v. Somade (2003) 1 NWLR (Pt.802) 431 at 447 paras. G-H. This court, per Adamu, JCA said:-
“Where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing of a counter affidavit to controvert the affidavit of service. The failure by the appellant to file such a counter affidavit is fatal to his case and his oral argument on the hearing date that he was not served with the motion and other processes in the suit cannot avail him.”
In the instant appeal, the bailiff’s affidavit of service dated 9th December, 2003, has not been rebutted. Instead of filing a counter affidavit, the appellant filed a notice of preliminary objection supported by affidavit praying the court to set aside the Form 48 notice on the ground of improper service. Since the affidavit of service has not been effectively challenged, it remains valid and the appellant was therefore properly served.
For all I have said here, this issue in resolved in favour of the respondent and the grounds upon which it is formulated fail and are accordingly dismissed.
The 3rd issue is whether the learned trial Judge was right in putting the onus on the appellant to convince the court that he was not personally served thereby shifting the burden of proof from the respondent to the appellant.
Mr. Mgbeokwere, learned counsel for the appellant, submitted on this issue that in a committal preceding the onus is on the applicant to prove to the court that he complied with the strict observance of the substantive and procedural formalities. According to the learned counsel, it is not for the appellant to prove that he was served, as the appellant only needs to inform the court that he was not properly served and it is for the applicant to prove that the appellant was properly served.
Finally, learned counsel submitted that the trial court was in error to have put the onus on the appellant to convince the court that he was not personally served. In aid, learned counsel cited Bonnie v. Gold (1996) 8 NWLR (Pt.465) 230; FCMB v. Abiola & Sons Ltd. (supra) at 181.9.
The bailiff attached to the lower court, Mr. Emmanuel Adepegba swore to an affidavit of service dated 9th December, 2003, that he on the same day at 12.30, pm served the notice, Form 48 on Mr. Bashir Wali personally but that Bashir Wali refused to sign for the collection. This affidavit sworn to by the bailiff is a prima facie evidence of proper service of the process.
See Bello v. National Bank of Nigeria (1992) 6 NWLR (Pt. 246) 206; Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661.
There was therefore no need for further evidence of service that was required before the appellant could be called upon to rebut the evidence of service. Form 48 is required to be signed by the Registrar of the court in which the application for committal is made. Service of the said form is affected by the bailiff. Both the Registrar and the bailiff are officers of the court. The burden of proof of service does not lie with the applicant. Where an affidavit of service has been sworn to by the bailiff, the presumption is that proper service has been affected. In the instant appeal, since the appellant is disputing such service, the burden is on him to prove that it was not properly served. This procedure neither offends S. 36(5) of the constitution of the Federal Republic of Nigeria, 1999, nor S. 137 (1) Evidence Act. This issue is also resolved in favour of the respondent and the grounds upon which it is distilled are accordingly dismissed. The last issue formulated for the determination of this appeal by the appellant is whether the language of the Honourable Court was fair to the appellant in the circumstances thereby making the appellant’s complaint of bias by the appellant untenable.
In arguing this issue, Mr. Mgbeokwere, learned counsel for the appellant, submitted that the learned trial Judge exhibited likelihood of bias against the appellant throughout his consideration of the preliminary objection of the appellant by descending into the arena when he closed his eyes to the arguments of the appellant concerning the issue of the respondent’s Form 48 being an abuse of court process on the pre that the totality of the facts the appellant predicated his arguments upon were not deposed to in the affidavit supporting the application, even though the respondent never raised any objection to that ground of the application. In a further argument, learned counsel submitted that the language used by the trial court against the appellant’s counsel was unnecessary and uncalled for.
The complaint of bias by the appellant was not raised and canvassed at the lower court. It is being raised here for the first time. The position of the law is that an appellant will not be allowed to raise on appeal a point or issue that was not raised, canvassed or argued at the trial without the leave of the Appeal Court. The only exception is where issue of jurisdiction is involved, and then it can be raised on appeal even though leave has not been obtained. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt.905) 319 at 334 paragraphs C-D.
Also, learned counsel complains that the likelihood of bias against the appellant started with the consideration of the preliminary objection, which the appellant filed at the lower court. There is no evidence in the record of this appeal that the appellant raised objection to the continuation of the case by the trial court. In Olue & Ors. v. Enenwali & Ors. (1976) 2 SC 23, where a Judge who was a counsel to one of the parties while in private practice heard and determined the suit without any complain from the parties. On appeal, the appellant raised the issue of bias. The Supreme Court held that as there was no objection to the trial court continuing with the case, the parties cannot on appeal complain. In Majoroh v. Fossasi (1986) 5 NWLR (Pt.40) 243, it was held that a court should be wary of coming to the conclusion that there is bias or likelihood of bias on a mere allegation without a prime facie evidence. See also Odudu v. Afoyebi (1987) 2 NWLR (Pt.68) 660; and Odunsi v. Odunsi (1979) 12 NSCC 57 at 59.
In this appeal, neither technical nor real bias on the part of the court has been established by the appellant. This issue therefore is resolved in favour of the respondent.
On the whole therefore, having resolved all the issues in favour of the respondent this appeal fails and it is accordingly dismissed. The decision of the lower court is affirmed. The appellant shall pay Ten Thousand Naira (N10, 000.00) to the respondent as cost.
Other Citations: (2007)LCN/2279(CA)
