Osude Brothers (Nig.) Ltd V. Miss Veronica Onome Uvieghara & Anor (2007)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
This is an appeal against the ruling of O. Aina. J of the Federal High Court Benin City delivered on the 6th December 1999 in suit No.FHC/B/P/5/98 upon a Notice of Preliminary Objection filed by the ‘Respondents with respect to an application for committal for contempt filed by the Appellant. The facts and circumstances leading to this appeal are briefly set out as follows – The Respondents filed a petition dated 8th January 1998 and filed on the 14th January 1998 in which they sought from the Federal High Court for an order inter alia the winding up of the Appellant. While the petition for winding up of the Appellant was still pending, the Appellant filed a motion on Notice for the committal of the Respondents to prison for contempt of the lower court in allegedly sending a petition to the then Presidential Task force on Financial crimes. It was alleged by the Appellant that while the petition for winding up was still pending in the Federal High Court, the Managing Director of the Appellant Mr. Dominic Uvieghara was apprehended at gun point at his home in Warri Delta State and taken to Lagos by men who claimed to be operatives of the presidential task force on financial crimes, the 2nd Respondent having acted as pointer to them. The petition to the task force was alleged to have been written by the 1st Respondent. All this the Appellant saw as brazen disrespect to the court. The allegations were denied by the Respondents but the Appellant went on to initiate committal proceedings against them. The Respondents then filed a Notice of preliminary objection to the committal proceedings on the ground that due process was not observed in initiating the said proceedings. The lower court heard the application for committal filed by the Appellant and in a considered ruling delivered on the 6th December 1999 dismissed same. Dissatisfied with the lower court’s ruling, the Appellant has appealed to this court by an amended Notice of Appeal dated the 31st May 2000 which can be found at pages 42-45 of the Record of proceedings and is reproduced hereunder
“AMENDED NOTICE OF APPEAL
TAKE NOTICE that t he Applicant Appellant being dissatisfied with the Ruling of the Honourable Justice O. Aina contained in the Ruling of the Federal High Court, Benin City delivered on 6th December 1999 do hereby appeal tot he Court of Appeal, Benin City upon the grounds set out in paragraph 3 of this Notice of Appeal. AND the Appellant further states that the names and addresses of the persons affected by this appeal are those set out in paragraph 5 of this Notice of Appeal.
- PART OF THE DECEISION OF THE LOWER COURT COMPLAINED OF: The whole Ruling.
- GROUNDS OF APPEAL
(i) The learned trial judge erred in law and denied the Appellant fair hearing in failing to consider and reach a determination on the submissions of Appellant’s counsel to the effect that there may be contempt in the face of the court even in circumstances where the judge did not see nor have personal knowledge of the facts allegedly constituting the contempt.
PARTICULARS
(a) The submission on the point were sine-qua-non for determining whether or not the acts alleged against the Respondents amounts to contempt in the face of the Court.
(b) The learned trial judge was enjoined to consider and reach a determination on these submissions.
(c ) The learned trial judge failed to resolve these submissions before holding the acts of contempt alleged against the Respondents were not in the face of the Court.
(d) The contempt alleged was in the face of the Court.
(ii) The learned trial judge erred in law and denied the Appellant a fair-hearing in holding that since the application for committal of the Respondents to prison are not due to acts or conduct in the face of the Court for which summary trial could be ordered by the Court, the procedure adopted by the Applicant (now Appellant) on the authorities available, the Respondents have been formally charged, arrested and prosecuted.
PARTICUALRS
(a) The holding ignored the submission of Appellant’s counsel to the effect that the Court had power to punish summarily even if the contempt is not in the face of the Court.
(b) The submission on this point were a sine-qua-non for determination whether the Court had the power to try the alleged acts of contempt summarily.
(c ) The learned trial judge was enjoined to consider and reach a determination on these submissions.
(d) The alleged acts of contempt were contempt’s in the face of the Court which were triable summarily.
(iii) The learned trial judge erred in law and denied the Application a fair hearing in declining to exercise jurisdiction over the Respondents on the grounds that they were not parties to the substantive suit.
PARTICULARS
(a) The holding ignored submissions of the Appellants counsel to the effect that this was the proper mode of bringing contempt application within the substantive proceedings
(b) The submission on this point were a sine-qua-non for resolving this issue.
(c ) The learned trial judge was enjoined to consider and reach a determination on these issues.
(d) The Respondents were parties to the contempt proceedings and need to have joined in the substantive suit.
(e) The Respondents need not have disobeyed Court orders before becoming amendable to the contempt jurisdiction of the Court
(iv) The learned trial judge erred in law holding that the 2nd Respondent was not served with the originating process in the committal proceedings.
PARTICULARS
(a) The Courts Records contained proof of person service.
(b) The proof of personal service was never rebutted by evidence.
(v) The learned trial judge misdirected himself in holding that service of process could not be subject of waiver or estoppels.
PARTICULARS
(a) Service of process could be a waiver or be the object of estoppels in appropriate circumstances.
(b) The antecedents in the records of this Court established waiver on the part of the 2nd Respondent and estoppels against her.
(vi) The learned trial judge erred in law in failing to distinguish between service on the 1st and 2nd Respondents and thereby dismissing the case against the 1st Respondent.
PARTICULARS
(a It was common ground that the 1st Respondent has been dully served with the process originating the committal proceedings.
(b) The learned trial judge ought to have allowed the Appellant to proceed against the 1st Respondent.
(vii) The learned trial judge misdirected himself in dismissing the Appellant’s application for lack of proof of service of the originating contempt processes.
PARTICULARS
(a) The contempt application had not been argued on the merits.
(b) The learned trial judge ought to have adjourned the contempt application to enable proper service.
(viii) The learned trial judge erred in law in dismissing the contempt application based on the Respondents preliminary objection.
PARTICULARS
(a) The contempt application has not been heard on the merits
(b) The learned trial judge ought to have struck out the application in the event that the preliminary objection was successful.
(ix) The learned trial judge erred in hearing the preliminary objection in the absence of the 2nd Respondent.
PARTICUALRS
(a) The presence of the 2nd Respondent was a condition precedent for the conduct of any proceedings under the committal application
.b) The absence of the 2nd Respondent rendered the whole proceedings a nullity.
TAKE FURTHER NOTICE that other grounds will be filed on receipt to Records of proceedings
- RELIEF SOUGHT
“An order setting aside the ruling of the Federal High Court per Honourable Justice O. Aina dated 16th of December, 1999 and substituting thereto an order dismissing the preliminary objection”.
- PERSONS DIRECTLY AFFECTED BY THIS APPEAL
APPLICANT/APPELLANT C/O HER SOLICITORS
IBUKUN AJOMO, ESQ
M.I JUGEDE & CO.
16A COMMERCIAL AVENUE
CRUSADER HOUSE (2ND FLOOR)
YABA LAGOS. OR
EDWARD AIBANGBEE, ESQ
AIBANGBEE LAW FIRM
112 SOKPONBA ROAD B/C.
RESPONDENTS/RESPONDENTS
- MISS VERONICA ONOME UVIEGHARA
- MATHIAS UVIEGHARA
C/O THEIR SOLICITORS
KEN E. MOZIA ESQ
81 MISSION ROAD
BENIN CITY.
Dated at Benin City, this 31st day of May 2000.
(SGD)
EDWARD AIBANGBEE, ESQ
AIBANGBEE LAW FIRM
112 SOKPONBA ROAD
BENIN CITY.
FOR IBUKUN AJOMO, ESQ
APPELLANT’S SOLICITORS.
SERVICE ON RESP. COUNSEL
KEN MOZIA & CO.
81 MISSION ROAD
BENIN CITY.
When this appeal come up for hearing on the 4th October 2007, S.O. Osazuwa of counsel adopted and relied on the Appellant’s Brief of argument dated 25th March 2004 and deemed filed by an order of this court on the 21st September 2004 and urged this court to allow the appeal and set aside the ruling of the Federal High Court delivered on the 6th December 1999 and substitute same with an order dismissing the preliminary objection filed by the Respondents against the Appellant’s application to commit the Respondents to prison. J.I. Odibeli of counsel adopted and relied on the Respondents’ Brief of Argument dated 4th November 2005 and deemed filed by an order of this court on the 24th April 2006 and urged this court to dismiss the appeal. From the nine grounds of Appeal the Appellant has formulated the following two issues for determination by this court –
- Whether the actions of the Respondents whereby the petition for winding up at their instance while
still pending took extra judicial steps in arresting the Managing Director of the Appellant and making Newspaper publication do not fall under the rubric of contempt in facie curie that would necessitate the alleged contemnor being tried summarily.
- Whether it was right for the lower court to hold that parties not before a court for any pending proceedings cannot be tried and punished for contempt of court committed in the face of the court and outside the face of the court.
These issues are as contained on page 3 of the Appellant’s Brief of argument. The Respondents on page 4 of their Brief of argument have distilled the following sole issue for determination by this court – “Whether the lower court rightly declined jurisdiction to entertain the application for contempt proceedings brought before it against the Respondents herein and a non-party.”
Having read through the Notice and Grounds of Appeal and the issues formulated therefrom by the Appellant and Respondents, I think the sole issue for determination in this appeal is whether the lower court was right to have declined jurisdiction to entertain the application for contempt proceedings brought before it by the Appellant. The Appellant has contended that the Respondent after initiating winding up proceedings in the court of law ought to have waited for the outcome of the litigation than to resort to extra judicial steps by using military task force to arrest the Managing Director of the Appellant – an act of contempt in the face of the court which should be dealt with summarily by the court without the need to profer charges against the contemnor. Reliance was placed on the case of EJEMBI V. A.G. BENUE STATE (2003) 16 NWCR (PART 846) 337, 373 paras C-E. It was therefore wrong, Appellant further contended for the trial court to have dismissed the contempt proceedings filed by the Appellant. It was further contended by the Appellant that the lower court was wrong to have declined to exercise jurisdiction over the Respondents on the ground that they were not parties to the substantive Suit and contemnors need not be parties before a pending suit for the court to exercise its powers to punish for contempt. Reliance was placed on AMADI V. HON. COMMISSIONER FOR EDUCATION IMO STATE & 3 ORS (2001) 9 NWCR PART 717, 17 25 Para E; COMMERCIAL BANK CREDIT LYONNAIS NIGERIA LTD V. UNIBIZ NIG LTD (2000) 9 NWCR (PART 673) 491, 499 Para D-H.
The Respondents on their part contended, relying on the case of DIBIA V. IGWE (1998) 9 NWLR PART 568 Page 78 at page 83 paras E-F that the court can only punish summarily for contempt committed in facie curie i.e. contempt committed in the face of the court and not otherwise. It was further contended for the Respondents that in the case of contempt ex facie curiae, the act complained of as contemptuous occurs outside the view of the court and evidence is required to be given by those who witnessed the alleged contemptuous act being committed. In this kind of situation there is the need for a full criminal trial in which the alleged contemnor is apprehended, arraigned and prosecuted before another Judge to ensure a fair hearing. The following cases were relied on in support of this legal proposition – AGBA CHOM V. STATE (1970) 1 All NLR 69; ATAKE V. A.G. OF THE FEDERATION (1983) 3 SCNLR 66; DIBIA V. I GWE (1998) 9 NWLR PART 568 Page 78 at page 53 para F -G. Counsel to the Respondent has submitted that the alleged contemptuous act of writing a petition to the Presidential task force on Financial crimes was, from evidence made available to the lower court in the various affidavits that preceded the argument of the motion for committal for contempt, not done by the Respondents. Respondents went on to say that even on the face of the application for committal for contempt the acts alleged to have been committed do not amount to contempt of the lower court. A Court of law, Respondents submitted, can only exercise jurisdiction to entertain a matter when such a matter is amongst other requirements, initiated by due process of law. The following cases were relied upon in support -MADUKOLU V. NKEMDILIM (1962) 1 SCNLR Page 32; UMAR V. ONIKAN (1999) 3 NWLR PART 596 page 558 at 573 paragraphs A-C. Respondents asked this court to dismiss the appeal as same is lacking in merit.
The offence of contempt with respect to the court and judicial proceedings in general can, in its simplest terms be defined as an offence against the dignity of the court. In its wider connotation it covers such vices inter alia as disrespect to the court, disobedience of court orders and ridicule and abuse of the court. Contempt of court falls into two broad and distinct categorizations viz (a) Contempt in “facie curiae” which simply translates into contempt in the face of the court. In this kind of contempt the alleged contemnor’s offensive words and/or actions take place inside the court and are seen and or heard by the Judge. No evidence of what transpired is necessary as the Judge saw and heard the contemnor. Punishment is meted out to the contemnor “brevi manu” or summarily by the Judge after the contemnor is asked to step into the dock and show cause why he should not be sent to prison for his misconduct (b) Contempt “ex facie curiae” which simply means that the alleged contempt was committed outside the court and therefore out of sight and hearing of the Judge. In this kind of contempt the procedure leading up to the punishment of the contemnor is very different as the alleged contemnor is first apprehended or arrested, charged and prosecuted. Because the alleged contempt is not committed in the presence of the Judge, evidence of the contempt is of necessity adduced to establish the guilt of the contemnor and because a Judge should not be a Judge in his own cause, trial of the alleged contemnor is carried out by another Judge and the standard of proof of the contempt charge is proof beyond reasonable doubt as the offence of contempt is one of a criminal nature. In a paper titled “Obedience to court orders and judgments: A panacea for sustainable democracy” presented at the 2007 All Nigeria Judge’s Conference at the Sheraton Hotels and Towers Abuja between the 5th-9th November 2007, Niki Tobi JSC had this to say at page 15
“Disobedience of court orders and judgments is contempt committed “ex facie curia” and therefore cannot be tried summarily. The contemnor has to be formally charged to court and tried following the normal procedure…………… ” A case that lucidly illustrates the issue of contempt committed “ex facie curie” is ABIEGBE V. REGISTERED TRUSTEES OF THE AFRICAN CHURCH (1992) 5 NWLR PART 241 page 306. In this case the Respondents obtained an interim injunction restraining the Appellant from further parading himself as the Bishop of Our Saviour African Church, Buguma Rivers State until the determination of their substantive motion on notice. It was however alleged that on Sunday the 22nd January 1989 after the Appellant had become aware of the order on 21st January 1989, he attended service at the Church dressed in clerical robes and paraded himself as a Bishop of the church. The Appellant admitted attending service dressed in his clerical robes but denied parading himself as a Bishop. The Respondents then brought a motion on notice to commit the appellant for contempt of court. On the hearing date of the motion, learned counsel for both parties were in court but the learned trial Judge did not allow any of them to talk and did not even ask the Respondent’s counsel to move the motion. He ordered the appellant into the dock, subjected him to rigorous cross examination by himself, tendered exhibits himself and proceeded to commit him to prison having found him guilty of contempt. The Court of Appeal allowed the appeal in the light of the procedure adopted by the learned trial Judge. The court held that as the contempt was not committed in the face of the court, the learned trial Judge was wrong in trying the appellant summarily.
In the present appeal before us, we have seen that the grievance of the Appellant leading to his application for committal for contempt by the Respondents is that while the petition brought by the Respondents for the winding up of the Appellant was still pending before the lower court, the Respondents allegedly wrote a petition to the Presidential Task force on financial crimes on the basis of which the Appellant’s Managing Director was arrested and which action the Appellant says was contemptuous of the lower court. The question one should ask right away is whether whatever may have been the misconduct of the Respondents was carried out in the court and in the presence of the Judge for the learned trial Judge to see or hear or read. The answer to that question is No. Therefore granted that the action of the Respondents amounted to contempt and that has not been decided yet, it did not and could not have amounted to contempt “in facie curie” to be summarily dealt with by the learned trial Judge. Could the action of the Respondents in allegedly writing the petition to the Presidential Task Force on Financial Crimes amount to contempt “ex facie curie”? The Respondents have denied authorship of the alleged petition which places the burden of proof of the authorship of the petition squarely on the shoulders of the Appellant and which in so far as it is tied down to the issue of contempt of court is criminal in nature and evidence in proof of the allegation of the authorship of the petition by the Respondents is proof beyond reasonable doubt. In the absence of such proof it will be wrong to conclude that any contempt “ex facie curie” has been committed by the Respondents. Such proof will necessitate a full blown criminal trial and is not one to be dealt with summarily. 15th & 2nd Respondents were not even parties to the substantive suit and Appellant has not shown that they were privy to the pendency of the action and that their acts constituted contempt. As earlier noted such proof must be one beyond reasonable doubt. From the above discourse it is clear that there was no contempt committed in the face of the court and the learned trial Judge was right to have declined jurisdiction to entertain the suit. The Appeal therefore is lacking in merit and it fails and is accordingly dismissed and the ruling of Aina. J of the Federal High Court Benin City delivered on the 6th December 1999 is hereby upheld.
There shall be N30,000.00 costs in favour of the Respondents, against the Appellant.
Other Citations: (2007)LCN/2561(CA)
