Sylvanus Emeka Madubuike V. Romanus Elochukwu Madubuike (2016)

LawGlobal-Hub Lead Judgment Report

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

The appeal is against the judgment delivered on 18/6/2013 by the Federal High Court presided over by Hon. Justice Adamu Hobon (hereafter to be simply referred to as €œthe Lower Court€ and €œlearned trial Judge€ respectively) finding the Appellant guilty of €œdisobedience of court orders in judgment of 27/11/2008, enforcement order of 23/2/2009 and all the subsequent execution processes connected therewith€ and committing him to prison until he purged himself of the contempt.

The contempt proceeding which resulted in the conviction and committal to prison of the Appellant was commenced by a motion ex-parte filed by the Respondent seeking for an order for the issuance of a bench warrant for the arrest and production in court of the Appellant to show cause why he should not be committed to prison for allegedly violating the execution processes of the judgment of the Lower Court in Suit No: FHC/E/33/94. See pages 1 €“ 10 of the records for the ex-parte motion. On 23/2/2009, the Lower Court granted the orders the Respondent sought including the order for the substituted service on the Appellant by publication in the newspaper of Forms 48 and all other processes required for the enforcement of the judgment orders being sought to be enforced. (See pages 11 €“ 13 of the record). When the Appellant became aware of the application, he filed a counter affidavit to the Form 49 on 22/5/2013. (See pages 71 €“ 73 of the record). The Respondent deposed to, and filed a further affidavit to Form 49. (See pages 1 €“ 5 of the additional record). After an evaluation of the affidavit evidence and exhibits before it, and having also had the benefit of the written addresses of the parties, the Lower Court delivered its judgment in the contempt proceeding; convicted the Appellant and committed him to prison until he purges himself of the contempt.

Being dissatisfied with the judgment of the Lower Court the Appellant on 15/4/2015 lodged at the registry of the Lower Court a notice of appeal dated 15/4/2015. This was done pursuant to the order of this Court made on 14/4/2015 giving the Appellant 7 days from the said 14/4/2015 within which to file his notice of appeal. The notice of appeal contains three grounds of appeal. The grounds of appeal and their respective particulars read thus: –

€œGROUND 1

The Learned trial judge erred in law in convicting the appellant on contempt when the ingredients of contempt was not proved beyond reasonable doubt by the respondent as required by law based on the affidavit evidence before the court.

PARTICULARS:

i. The offence of contempt is criminal in nature hence every ingredient of the offence needed to be proved beyond reasonable doubt.

ii. Neither the respondent nor any other person testified in court linking the appellant with the contempt alleged.

iii. None of the exhibits attached to the application linked the appellant to the contempt.

iv. It is a travesty of justice to require the appellant to prove his innocence in a criminal proceeding when the guilt of the appellant has not been proved in any way.

GROUND 2

The learned trial judge erred in law by convicting the appellant for contempt when the allegation that the appellant broke the seal of the court, tore the orders of the court pasted on the gates of the property, broke into the property and retook possession of the said property were not proved beyond reasonable doubt as required by law.

PARTICULARS

i. It was the contention of the Respondent that the appellant broke the seal of the court, tore the orders of the court pasted on the gate of the property, broke into the property and retook possession of the said property.

ii. The respondent only alleged the appellant in carrying out the said acts but did not give any evidence in support of the said facts as the pictures showing the extent of violation of the court€™s orders were never linked to the appellant in any way.

iii. The appellant denied ever doing any of the said acts and equally contended that the said property was not even part of the property execution was levied.

iv.The respondent must as a matter of law link the appellant to the said violation of the execution orders of court but this was not done.

GROUND 3

The trial judge misdirected himself and came to a wrong conclusion thereby occasioning a miscarriage of justice when he held at page 8 of his ruling that:

€œThese denials and assertions each is carefully considered along with the plaintiff applicant€™s further affidavit on FORM 49 together with Exhibits H & J attached thereto document of SYLROMRIC ASSETS DIVISION of 10-10-1993 and the court Bailiff€™s Execution reports of 06/07/2011.

And indeed, the totality of the evidence before the court has narrowed and whittled down the defendants case on the identity of the property in question in the judgment€

PARTICULARS

i. The appellant denied the allegation that he broke the seal of court, tore the orders of the court pasted on the gates of the property, broke into the property and retook possession of same and equally asserted that the property is not even part of the properties in the judgment under execution.

ii. The respondent did not prove by any stress (sic) of evidence that it was the appellant who tore the seal of court, broke into the property and retook possession of same. In fact, no picture of the appellant doing any of the said actions was tendered in support of the allegation nor anybody who witnessed the appellant doing any of the said acts called in evidence.

iii. It was wrong for the judge to have concluded on mere suspicion that the appellant should have been responsible for the said acts merely because the appellant asserted that the property was not even one of the properties execution was lived.

iv. The said conclusion of the judge is unsupported by the evidence in court therefore it is perverse.€

Parties duly filed and exchanged briefs of argument. Appellant filed two briefs of argument. Appellant€™s brief of argument dated 23/9/2015 and filed on same date but deemed to have been properly filed and served on 22/10/2015 was settled by Perebo Pesta Monde, Esq. Appellant€™s reply brief dated 11/5/2016 was settled by Perebo Pesta Monde Esq. and Aliyu Aliyu Imam Esq. Respondent€™s brief of argument is dated 3/5/2016 and filed on same date but deemed to have been properly filed and served on 9/5/2016. It was settled by Ozonma N.C. Nobis-Elendu. The appeal was entertained on 6/6/2016 with A. Offor learned lead counsel for the Respondent first arguing the preliminary objection to the appeal raised in a Notice of Preliminary Objection dated 3/5/2016 and filed same date in the appeal.

P.P. Monde learned lead counsel for the Appellant adopted and relied on the briefs of argument of the Appellant as hereinbefore identified in urging the Court to overrule and dismiss the preliminary objection of the Respondent; allow the appeal, set aside the judgment of the Lower Court and quash the conviction of the Appellant.

A. Offor learned lead counsel for the Respondent in dwelling on the appeal on the merit, adopted and relied on the Respondent€™s brief of argument as hereinbefore identified, in urging the Court to dismiss the appeal and uphold the judgment of the Lower Court in the event Respondent€™s preliminary objection to the appeal was overruled and dismissed.

Two issues were formulated for the determination of the appeal in the Appellant€™s brief of argument. They read thus: –

€œ(1) Whether the ingredients of the contempt was proved against the appellant as required by law? (GROUND 1 AND 2)

(2) Whether the appellant (sic) denial of the disobedience of the court order and his assertion that the property in question was not part of the properties execution was levied actually narrowed and whittled down the case to only the identity of the property in question in the judgment so as to dispense with the requirement of proof of the guilt of the appellant beyond reasonable doubt as required by law. (Ground 3)€

The Respondent equally formulated two issues for the determination of the appeal in his brief of argument. The issues read thus: –

€œ1. Whether upon the Affidavit Evidence before the court, the Respondent proved the contemptuous conduct of the Appellant beyond reasonable doubt. (Grounds 1 & 2)

2. Whether the Appellant€™s bare/general denial of the affidavit evidence and his assertion that the judgment order of court of 27/11/2008 did not refer to the property described in paragraph 9 of the Plaintiff/Applicants affidavit constituted a successful defence to the case of contempt made against him€

The settled position of the law is that where there is a preliminary objection to an appeal, same must be first considered and resolved. This is against the backdrop of the purpose of a preliminary objection to an appeal (and which is to terminate the hearing of the appeal). This is because the success of a preliminary objection to an appeal will render it unnecessary to consider the appeal on the merit. See the case of SPDC NIGERIA LTD V. AMADI (2011) LPELR €“ 3204 (SC). Accordingly, I will first resolve the Respondent€™s preliminary objection to the instant appeal as it is its outcome that will determine whether or not there is need to consider the appeal on the merit.

The Notice of Preliminary Objection filed in the appeal by the Respondent was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011; Section 6(6)(b) of the amended 1999 Constitution of the Federal Republic of Nigeria; and under the inherent jurisdiction of this Court. The notice of preliminary objection reads thus: –

€œTAKE NOTICE that the Respondent shall upon the hearing of the appeal raise a preliminary objection to the hearing of the appeal and shall urge the Honourable Court to strike out the appeal same being incompetent and for absence of jurisdiction.

AND TAKE FURTHER NOTICE that the grounds of the preliminary objection are as follows:

1. The application leading to the committal of the Appellant for disobeying the orders of the Lower Court contained in its judgment of 27/11/2008 is in the nature of a criminal proceedings or charge.
2. The appeal is an appeal against the judgment of the Lower Court delivered in the contempt proceedings and must therefore comply with the procedure laid down for commencement of criminal appeal.
3. The present appeal to set aside the conviction of the appellant by the trial court in a contempt proceeding and to acquit the Appellant is in the nature of a criminal appeal and the rules relating to criminal appeals must be strictly applied.
4. Under the rules of this Honourable court, every notice of appeal given in a criminal case shall be signed by the appellant himself.
5. The Appellant (sic) notice of Appeal given in the quasi-criminal proceedings for contempt was not signed by the Appellant personally.
6. The Appellants (sic) notice of appeal being in the nature of a criminal appeal ought to be signed by the Appellant himself.
7. The Appellant never raised the issue of doubt as to the identity of the person who committed the contemptuous act at the court below. The Appellant is only raising the said issue of identity of the contemnor for the first time on this appeal without leave.
8. The Appellant needs the leave of court to raise such fresh issue for the first time on appeal.
9. The parties in this appeal were not parties to the suit from which the Appeal arose.
10. The notice of appeal is incompetent for the failure of the Appellant to personally sign same.
11. The Appellant had argued in paragraphs 4.23 and 4.30 of his argument that the judgment of the Lower Court was not properly executed and urged the Honourable Court to set same aside. The above argument is not based on any of the issues raised by the Appellant in this appeal. The said argument is also not based on any of the grounds of Appeal.
12. The court lacks the jurisdiction to entertain the appeal.€

Learned lead counsel for the Respondent in arguing the preliminary objection (hereafter to be simply referred to as €œP.O.€) adopted and relied on the arguments at paragraph 3.01 €“ 3.15 on pages 5 €“ 9 of the Respondent€™s brief of argument in urging the Court to uphold the P.O. and strike out the appeal.

Having regard to the P.O. of the Respondent that has been re-produced hereinbefore, it is in my considered view clear that the said P.O. to the instant appeal which this Court is said to lack the jurisdiction to entertain by ground 12 of the grounds of the P.O., is in four parts. The first part questions the validity of the notice of appeal lodged against the judgment of the Lower Court. (See in this regard grounds 1 €“ 6 and 10 of the grounds of the P.O.). The second part questions the propriety of the issue of doubt as to the identity of the person who committed the contemptuous act raised in the instant appeal as the said issue, is being raised for the first time without procuring the leave of this Court to do so. (See in this regard, grounds 7 and 8 of the grounds of the P.O.). The third part questions the propriety of the parties contained in the notice of appeal. (See in this regard, ground 9 of the grounds of the P.O.). The fourth part questions the propriety of the argument in relation to the improper execution of the judgment of the Lower Court contained at paragraphs 4.23 €“ 4.30 of the Appellant€™s brief of argument as same is not based on either of the issues formulated by the Appellant for the determination of the appeal nor on any of the grounds of appeal. (See ground 11 of the grounds of the P.O.).

The position of the law regarding what qualifies to be raised as preliminary objection to an appeal has been settled for some time now. It is to the effect that any grouse a respondent has in relation to an appeal and which will not terminate the hearing of the appeal if resolved in the respondent€™s favour, does not qualify to be brought by way of preliminary objection. In this regard see the case of SPDC NIGERIA LTD V. AMADI (supra) where Rhodes-Vivour, JSC; in dwelling on preliminary objection in the lead judgment of the Court said on page 23 thus: –

€œPreliminary objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of Appeal should be filed. In this case a Preliminary objection was properly filed, because if it succeeds the appeal comes to an end. See: NEPA v. Ango 2001 15 NWLR pt 737 p 627€

See also the case of ABBA V. SPDC NIGERIA LTD (2013) LPELR €“ 20338(SC).

Against the backdrop of the position of law as stated above, it becomes obvious that the second and fourth parts of the P.O. of the Respondent being such that cannot terminate the hearing of the appeal even if they are resolved in the Respondent€™s favour are not suited to have been placed before the Court by way of P.O. and I will for this reason not dwell on them in the resolution of the P.O. before the Court. In other words, it is only the first part or aspect of the P.O. that I will concern myself with as I am discountenancing the second and fourth parts or aspects of the P.O. for the purpose of resolving same.

I also consider it appropriate to mention that ground 9 of the grounds of the P.O. which reads that €œthe parties contained in the Notice of Appeal are not the same with the parties contained in the judgment of the Lower Court appealed against€ requires no elaborate examination. This is because I consider the said ground to be manifestly or obviously absurd and unintelligible having regard to the position of law in elucidation of the rules of court governing appeals. It is to the effect that an appeal basically can only be at the instance of a person that is aggrieved with a decision and that only persons who will directly be affected with the decision appealed against need be made respondents in the appeal. It is the Appellant alone that the Respondent proceeded against for contempt of court in the processes by which the proceeding was commenced even though there were other parties set out in the processes in question as respondents in addition to the Appellant. The judgment and orders made by the Lower Court in the contempt proceeding were never extended to any of the other parties that featured in the contempt proceeding. In the circumstance, it is in my considered view simply incongruous and definitely not commonsensical or rational that all the respondents set out in the judgment of the Lower Court should feature in the notice of appeal in the instant appeal if they have no grouse with the judgment appealed against by the Appellant and inasmuch as the Appellant does not think that they will be directly affected by the outcome of the appeal. Perhaps it is the desire of the Respondent on record that the persons not set out in the notice of appeal needed to be joined as respondents in the appeal so that they can support the judgment of the Lower Court that has gone against one of their own. How this can advance the cause of the Respondent beats me hollow as the other respondents in the contempt proceeding even if joined in the appeal as respondents are not under any duty to participate in the appeal knowing that nothing the Lower Court did has any effect on their persons or interest. I suspect that it is in the knowledge of the position stated above, that learned lead counsel for the Respondent never canvassed argument in respect of ground 9 of the grounds of the P.O. in the brief of argument of the Respondent. I am however of the considered view that he should have had the forthrightness to have expressly abandoned the ground of the P.O. in question at the point of arguing the P.O. That is what decorum dictates.

The submission of learned lead counsel in respect of the notice of appeal by which the instant appeal was initiated in the main is that the said notice ought to have been signed by the Appellant himself. That as this was not done in the instant appeal which is in respect of contempt proceeding (which was in the nature of a criminal matter), the said notice of appeal which was signed by learned lead counsel for the Appellant, violates the provisions of Order 17 Rule 4(1) of the Court of Appeal Rules, 2011. The cases of Orji v. FRN (2007) 13 (sic) NWLR (Pt. 1050) 55; and Onu v. State (2013) All FWLR (Pt. 683) 2019 amongst others were cited in aid. It is the stance of learned lead counsel that as the Appellant was convicted for contempt of court and was committed to prison, he ought to have signed the notice of appeal against his conviction himself and not through his counsel. That failure of the Appellant to sign and endorse the notice of appeal in this matter therefore renders the appeal incompetent and liable to be struck out.

In responding to the argument of the Respondent concerning the notice of appeal, learned lead counsel for the Appellant in the main submitted that the said notice is valid as it was competently signed by him. This according to learned lead counsel amongst others, is because the stance of the Respondent is grossly misconceived and a clear misapprehension of the law as it relates to an appeal on contempt from a civil proceeding. Learned lead counsel submitted to the effect that contempt of court is neither civil nor criminal but sui generis and cannot be smuggled into any of either proceedings through the back door and cited in aid the case of Nzidee v. Kootu (2007) 1 NWLR (Pt. 1014) 99 (CA). That though contempt proceedings are usually categorized as either civil or criminal (be it in-facie curia or ex-facie curia) such categorisation is only useful for the purpose of determining the appropriate procedure the trial court must follow in the trial of the contemnor. It is the stance of learned lead counsel that the nature of the contempt in the instant case is civil contempt borne out of a civil case, hence the applicable procedure for appeal, is as contained in Order 6 of the Court of Appeal Rules, 2011 which relates to Civil Appeals and matters relating thereto. He further cited the case of Chrisdon Industrial Co. Ltd. v. A.I.B. Ltd (2002) 8 NWLR (Pt. 768) 152, in aid of his stance that the notice of appeal was properly signed by him (i.e. learned lead counsel) in view of the function a notice of appeal is to serve. Also submitting that the cases cited by learned lead counsel for the Respondent are not applicable as they dwell with criminal cases, the Court was urged to hold that the notice of appeal is competent and that this Court has the jurisdiction to entertain this appeal.

The judgment in the contempt proceeding that has resulted in the instant appeal was delivered by the Lower Court on 18/6/2013. The facts and events leading to the contempt proceeding as captured in the judgment of the Lower Court on pages 136 €“ 137 of the record read thus: –

€œ By issuance of Form 49 notice to the 1st Defendant Contemnor €“ Respondent, the Plaintiff Applicant applied for:

An order for committal of the contemnor to prison for having disobeyed the Judgment Order of this Court made in this suit on 27th November, 2008 in favour of the Plaintiff-Applicant.

1st Defendant-Contemnor ordered to appear and show cause why an order for his committal shall not be made. The Notice was dated and filed 22-07-2011, issued on 24-10-2011 by the Court Registrar. It is supported by a 20 paragraph affidavit of 24-10-2011, attached thereto: Exhibits A €“ F namely:

1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
2. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
4. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

The said judgment of 27-11-2008 was endorsed with form 48 and served on the Contemnor €“ Respondent as per Exhibit €œC€ & €œC1€, contemnor is aware of the Judgment.

On 01-06-2011 the court ordered or directed police to provide security for execution of the judgment as per Exhibit €œD€.

On 6-07-2011 Execution of Judgment took place and possession of property obtained in favour of Plaintiff-Applicant.

On 11-07-2011 the contemnor unlawfully broke the seal of the court, tore the orders of the court pasted on the gates of the property, and re-took possession of the said property as if the Judgment of Court and execution were of no effect. Contemnor also locked up the warehouses on the ground floor and main gates to the aforesaid property thereby denying the Plaintiff-Applicant access to the warehouses and his own part of the property as evidenced by €œExhibit F€. The contemnor-respondent violated the entire execution process carried out by officers of court as shown by exhibit €œG€ unless the contemnor-respondent is committed to prison, he will continue to disobey the Judgment of this Court. €¦€¦€¦€¦€¦€¦€

It is in my considered view pertinent to note that at all material time prior to the commencement of the contempt proceeding entertained by the Lower Court, the Criminal Code Act, Laws of the Federation of Nigeria, 1990 in Section 6 and Criminal Code which is a Schedule to the Act, in Section 133, both contain provisions which deal with €œContempt of court€. Indeed, the provisions relating to contempt of court remain the same in the Criminal Code Act, 2014 in Section 6 and the Criminal Code which is a Schedule to the Criminal Code Act 2014 in Section 133. The provisions in question read thus: –

€œSection 6

Nothing in this Act or in the Code shall affect the authority of courts of record to punish a person summarily for the offence of contempt of court; but so that a person shall cannot be so punished and also punished under the provisions of the Code for the same act or omission.

Section 133

€œAny person who €“

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(2)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(4)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(5)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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(7)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(8) Re-takes possession of land from any person who has recently obtained possession by a writ of court; or

(9)Commits any other act of intentional disrespect to any judicial proceeding, or to any person before whom such proceeding is being had or taken,

is guilty of a simple offence and liable to imprisonment for three month.€

It is clear from an enactment such as the Criminal Code Act that there are categories of contempt of court and that there is a category that constitutes criminal offence in law. There is also no dearth of decisions of the Supreme Court and this Court regarding the nature of contempt of court and procedure to be adopted in pursuing each type. In this regard, I will refer to two cases only, and will re-produced portions of the second case extensively as the first of the cases was copiously referred to in the second case. The first of the two cases is AWOSANYA V. BOARD OF CUSTOMS & EXCISE (1975) LPELR €“ 657 (SC). The second of the two cases is that of OMOIJAHE V. UMORU (1999) LPELR €“ 2645 (SC) where the Supreme Court per Katsina-Alu, JSC; (as he then was) on pages 10 €“ 13 said thus: –

€œIn the present case, it is not in dispute that the allegations against the appellants are criminal in nature. The alleged contempt was ex facie curiae. Therefore, what is in dispute herein is the mode of trial for such a contempt of court. There are two types of contempt – that committed in facie curiae and that committed ex facie curiae. In the case of the second type, a charge and a plea are necessary and the accused is entitled to a fair hearing of the case against him. In both types of contempt, a trial is involved. See Awosanya v. Board of Customs & Excise (1975) 3 SC. 47. What separates one from the other is the procedure to be adopted. For words or actions used in the face of the court, or in the course of proceedings, to be contempt, they must be such as would interfere with the course of justice. A superior court of record has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. It must once again be emphasised that the summary power of punishing for contempt should, however, be used sparingly and only in serious cases. See Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264 at 270; Arake v. Attorney-General (1982) 1 S.C. 153: Oku v. State (1970) 1 NLR 60. It is a power which a court must of necessity possesses, Its usefulness, surely, depends on the wisdom and restraint with which it is exercised. In cases of contempt ex facie curiae there may be cases where the offence should be dealt with summarily, but such hearing must be conducted in accordance with cardinal principles of fair process, and the case must be one the facts surrounding the alleged contempt are so notorious as to be virtually incontestable. Where the judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in court, he should not try the case himself. The matter must be placed before another judge where the usual procedure for the arrest, charge and prosecution of the offender must be followed. In Oku v. The State (supra) this court per Coker JSC held at page 68 that:

“Where the contempt of court is punishable brevi manu in court no warrant is necessary for the apprehension of the offender as he is always in court and the contempt is stated to have been committed coram judice. In other cases the proper procedure of apprehension or arrest, charge, prosecution, etc., must be followed …€ (Italics for emphasis).

In other words, in the trial of criminal contempt ex facie curiae, an offender is entitled to the benefit of a full process of a criminal trial. The reason for this is obvious. Firstly, this is to ensure that the accused receives a fair hearing of the case against him. In the second place, the judge no doubt would have to rely on evidence or testimony of witnesses to events which did not occur in his presence. In Boyo v. Attorney-General of Mid- West (1971) 1 All NLR this court observed at page 353 of the Report thus:

€œThese observations, to which we have referred, to our mind, apply both in cases of contempt in the face of the court. Although in the first case, generally, the contempt cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the offence was committed. In cases of contempt not in the face of the court, there may be cases where the offence should be dealt with summarily, but such hearing must be conducted in accordance with cardinal principles of fair process; and the case must be one in which the facts surrounding the alleged contempt are so notorious as to be virtually incontestable. Where the judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in court it cannot be said that the contempt is in the face of the court. In such cases, a judge should not try a contempt in which he is involved.”

It is to be realised that in both types of contempt, some form of trial is conducted. In that sense it is correct to say that the court can make an order of committal in the situations specified by Order 42 Rule 1 of the High Court (Civil Procedure) Rules 1998 of the former Bendel State. Such an order of committal must be made after due hearing of the case against the accused. This can be summary in cases of contempt committed in the face of the court or through a trial only after framing of a charge and taking of a plea in cases of contempt not committed in the face of the court. Each type of contempt has its own procedure. Each type must be kept within its compartment. In the instant case, it is not in dispute that the contempt in question was not committed in the face of the court. It was committed ex facie curiae. This does not attract summary trial. Here the offender is entitled to the benefit of a full process of a criminal trial. It cannot be contested that the judge would need evidence or testimony from prosecution witnesses and also from the accused and his witnesses in order to come to a just decision. There is clearly in my view no jurisdiction in the learned trial judge to exercise her summary jurisdiction in this case. The contempt was not committed in her presence. €¦€¦..€

It is my considered view that learned lead counsel for the Respondent in his stance that the notice of appeal in the instant appeal ought to have been signed by the Appellant himself, conveniently failed to appreciate that the contempt proceeding in which the Lower Court convicted the Appellant was never one of criminal contempt (and if I may say, it should have been, given the fact that whatever contempt the Appellant allegedly committed was not committed in the face of the Lower Court). It was a contempt proceeding that was taken out in a civil matter in respect of which the said Lower Court had given judgment. The application of the principle of €œproof beyond reasonable doubt€ to the proceeding was only in keeping with the evidential burden of proof required in any civil proceeding where an allegation of the commission of a crime has been made. See Section 135 of the Evidence Act, 2011. The burden of proof to be discharged in establishing a fact or allegation is not what determines the nature of the proceeding in question, but the form of commencement of the proceeding in which the allegation has been made. In my considered view, it is for this reason that an action commenced under the civil procedure rules of a court remains a civil matter despite series of allegations of crime that might be made therein and which allegations must be proved beyond reasonable doubt, by the party that makes same in the said proceeding. It is therefore my considered view that before it can be successfully argued as has been done by learned lead counsel for the Respondent that the contempt proceeding before the Lower Court was such that required the Appellant to sign the notice of appeal by himself, then the fulfilment of all the incidences of a criminal trial as envisaged under Section 215 of the Criminal Procedure Act must be shown to have been complied with in the matter in question. This is not the position in the instant case having regard to the record. In the light of all that has been said, I have no hesitation whatsoever, in holding that the notice of appeal lodged by the Appellant was properly signed by his counsel as the contempt for which he was convicted did not arise from any criminal proceeding properly instituted before the Lower Court. In conclusion I find the notice of appeal to be competent and also hold that this Court has the jurisdiction to entertain the instant appeal. I will now proceed to consider the appeal on the merit and in doing this, I will resolve the appeal on the issues formulated for its determination by the parties under the broad issue as to whether the Lower Court was right in finding the Appellant guilty of contempt and punishing him therefor having regard to the totality of the evidence before it. In doing this, I will however still review the submissions as presented under the issues formulated by the parties in their respective briefs of argument. This is more so as both issues as formulated by the parties are from the same grounds of appeal. This is to say that both Appellant€™s issue 1 and Respondent€™s issue 1 having been distilled from grounds 1 and 2 of the grounds of appeal will be considered together; while the same attitude will also be accorded their respective issue 2 as they have been distilled from ground 3 of the grounds of appeal.

APPELLANT€™S ISSUE 1:

The position of learned counsel for the Appellant under this issue in the main is that the ingredients of contempt of court, were not proved as required to be proved in a quasi-criminal proceeding that contempt proceeding is, and which is that of proof beyond reasonable doubt, before a conviction can be grounded on it. That it was not proved that the Appellant is the one who actually committed the said contempt deliberately and with guilty mind and the case of Orija v. Akogun (2009) 10 NWLR (Pt. 1150) 439 at 453 wherein this Court set out the ingredients of contempt was cited in aid. It is the stance of learned lead counsel that the totality of the affidavit evidence placed before the Lower Court by the Respondent did not establish the Appellant to be the one who committed the contemptuous acts. That this is particularly so, as the Appellant in his counter affidavit denied the depositions suggesting this in the Respondent€™s affidavit. He further submitted that the denials in the counter affidavit made the identity of the person who committed the alleged acts, to be an issue but this was never proved in any way. That even a scrutiny of the execution report of the bailiff, one Araromi Ademola on pages 91-96 of the record and also on pages 13-14 of the additional records compiled by the Respondent, reveal that there were occupants/tenants in the house in respect of which execution was levied and there was nowhere in the report that these lawful occupant/tenants were evicted. That they were left alone by the bailiff in/on the properties as the bailiff only €œtold them of the order of the court and pasted the court injunction document on the entrance wall of the fence of the house with red paint. Learned lead counsel also said that the report did not state that the Appellant was present at the time the purported execution was carried out and that the Appellant did anything at all. That it was possible for the people living in the houses and who were left in the houses to have removed the court seals and/or opened the gate to the property where the seal was pasted as there was no alternate gate left for their ingress and exit from the premises. Learned lead counsel submitted that the identity of the person who disobeyed the court order by breaking the seal of the court, tearing the order of the Lower Court pasted on the gates of the property, breaking into the property and retaking possession of the said property was never proved beyond reasonable doubt as required before the Lower Court and it was wrong for the court to have convicted the Appellant on mere speculation that he would have been the person that carried out the allegedly contemptuous acts without more. That this fell short of the standard required to prove contempt cases. That the evidence before the Lower Court fell short of the standard of proof required under the law to ground the conviction of the Appellant hence the Lower Court was wrong to have convicted him on mere suspicion as the said court failed, refused and neglected to make an inquiry into the identity of the person who violated its order that was pasted on the wall. It is the stance of learned lead counsel that an eye witness needed to testify or to have depose to an affidavit on what he/she saw and when the Appellant did what he was alleged to have been done. That it is only then the Appellant could be called upon to defend/or give an explanation on why he did it.

The Court was urged to hold that the ingredients of contempt particularly the fact that it is the Appellant that committed the contempt with a guilty mind was not proved beyond reasonable doubt and thereby resolve the issue in the Appellant€™s favour and set aside the conviction of the Appellant and discharge him accordingly.

Dwelling on Respondent€™s issue 1, learned lead counsel for the Respondent in the main submitted that the Respondent fulfilled all the conditions necessary and indeed proved all the ingredients of the offence of contempt against the Appellant beyond reasonable doubt as required by the law. Copious references were made to evidence before the Lower Court in this regard and the case of Abass v. Solomon (2001) FWLR (PT 67) 847 was cited in aid. It is his stance that the Respondent not only proved that the judgment and order of the Lower Court were endorsed with Form 48 and served on the Appellant (hence the Appellant was aware of the judgment orders and had knowledge of existence of the said order made against him) but also proved that execution was levied accordingly on the property on 6/07/2011 and that orders of the Lower Court were pasted on the wall fence and gate of the property. That the Respondent equally furnished evidence to the effect that the Appellant on 11/07/2001 (sic), broke the seal of the court, tore the orders of the Lower Court pasted on the gate of the property, broke into the Appellants (sic: Respondent€™s) share of the property to which the judgment of the Lower Court relates. It is the stance of learned lead counsel that the affidavit and documentary evidence placed by the Respondent before the Lower Court, proved the allegation of disobedience of the judgment and orders of the Lower Court on 27/11/2008 against the Appellant beyond reasonable doubt. He said further that the catch-phrase €˜proof beyond reasonable doubt€™ often used in our criminal and evidence laws, is not a magical terminology compelling the prosecution or one who alleges crime in a matter to accomplish the task of a leviathan or to do the impossible. That all the law requires is that the prosecution or the Respondent, in the instant appeal and as an applicant in a case of civil contempt, should sufficiently prove the essential ingredients of the offence and this is what the Respondent has done in this matter and the case of Ekenam v. The State (2010) All FWLR (Pt. 539) 1142 at was cited in aid. It is also the stance of learned lead counsel for the Respondent that the purport of the entire argument at paragraphs 4.05 €“ 4.12 of the Appellant€™s brief that the allegation of contempt against him were denied in paragraph 9 of his counter affidavit and that the said denial puts the identity of the person who committed the alleged contemptuous act in issue, and was not proved to be him by Respondent, is misplaced. This is because, the Appellant given the general denial of the allegation of contempt contained in paragraph 9 of his counter affidavit, never raised any doubt as to the identity of the person who committed the contemptuous act in the Lower Court. That Appellant is only raising the issue relating to the identity of the contemnor for the first time in this appeal. Learned lead counsel submitted that the fresh point of doubt as to identity, as now raised by the Appellant and which was not canvassed by the Appellant in the course of his trial at the Lower Court cannot be so raised in this appeal except with the leave of this court and the cases of Ohuchukwu v. A-G, Rivers State (2012) All FWLR (Pt. 626) at 413 €“ 415; and SPDC v. Tiebo VII (2005) 9 NWLR (Pt. 931) 439 were cited in aid. In the premises, the Court was urged to discountenance all the arguments relating to the fresh issue of identity as canvassed in paragraphs 4.05 €“ 4.12 of the Appellant€™s brief. Alternatively, it is the position of learned lead counsel for Respondent on this issue, that there is no deposition whatsoever in the counter affidavit by which the Appellant actually and materially denied committing the contemptuous acts alleged in paragraphs 10, 11 and 12 of the affidavit in support of Form 49 for the committal of the Appellant. The case of N.N.P.C v. Famfa Oil Ltd (2012) All FWLR (Pt. 635) 204 at 233 €“ 234 was cited in aid. It is the stance of learned lead counsel that paragraph 9 of the Appellant€™s counter affidavit is a feeble and shallow €œaverment€ in attempted denial of specific and material facts contained in the affidavit in support of the application for committal of the Appellant and therefore has no probative value. That it is worthy to note that the Appellant did not even deny any of the allegations of fact contained in paragraphs 7 €“ 13, 16 €“ 19 and 21 of the further affidavit in support of the application for the committal of the Appellant. Learned lead counsel submitted that for Appellant to effectually controvert the evidence in paragraphs 10 €“ 12 of the affidavit of the Respondent, he needed to have presented cogent and credible evidence to discredit the evidence of the Respondent but this was not done by the Appellant in any of the paragraphs of his counter affidavit and the case of Sanni-Omotosho v. Obidairo (2014) All FWLR (Pt. 745) at 216 was cited in aid.

Dwelling on the argument contained in paragraph 4.08 of the Appellant€™s brief of argument regarding the fact that the execution report did not show that the Appellant was present on the day of execution and did not state that the Appellant did anything at all on the execution day, learned lead counsel for the Respondent submitted that the essence of the execution report, was to show and or prove the identity of the property that is the subject matter of the judgment and order of 27/11/2008, in relation to which the contempt was committed. That it was not in relation to the identity of the contemnor, as the contemnor€™s identity was never in doubt, and was never an issue at the Lower Court. That the execution report, has nothing to do with the presence or identity of the Appellant. Besides, that it is very clear from the affidavit and further affidavit evidence of the Respondent that while the execution was levied on the 6/07/11, the Appellant committed the contemptuous acts on 11/07/11. It is also the stance of learned lead counsel, that the argument in paragraph 4.08 of the Appellant€™s brief that tenants were left in the building and could possibly have committed the contemptuous act is lame speculation, idle hypothesis and therefore, academic. That such argument does not avail the Appellant in this appeal being purely speculative. The Court was enjoined to discountenance same in line with the established principle of law and the case of Alameyessigha v. FRN (2006) 16 NWLR (Pt. 1004) at 40 was cited in aid. In conclusion, learned lead counsel urged the Court to resolve issue 1 in favour of the Respondent and hold that the Respondent sufficiently proved the contemptuous conduct of the Appellant beyond reasonable doubt.

The Appellant in his reply brief as expected responded to some of the arguments of learned lead counsel for the Respondent as reviewed above. I will refer to those I consider relevant in the course of resolving the broad issue I have formulated for the resolution of the appeal.

APPELLANT€™S ISSUE 2:

In dwelling on this issue, learned lead counsel for the Appellant having adopted the arguments proffered under issue 1 further submitted that the Appellant€™s denial of disobedience of the court order and his assertion that the property in question was not even part of the properties on which execution was levied, did not actually narrow and whittle down the Appellant€™s case to the identity of the property in question as erroneously held by the Lower Court. It is his stance that an accused person in any criminal trial can rely on various defences and the court is bound to consider all the defences open to the accused/defendant. The case of Uwahekweghimya v. State (2005) 9 NWLR (Pt. 990) 227 amongst others was cited in aid. He said that the Appellant clearly raised two defences before the Lower Court to wit: (1) that the property in question is not one of the properties on which execution was allegedly levied, and (2) that he did not commit the alleged contemptuous acts. He submitted that while the Lower Court dealt with and considered the first of the defences of the Appellant in its judgment, it however failed to consider the second defence that he was not the person that committed the alleged act. Having made further submissions anchored on the bailiff€™s execution report, learned lead counsel also submitted that the failure of the Lower Court to consider the second of the defences of the Appellant has occasioned a miscarriage of justice and has caused the irreparable damage of depriving the Appellant of his liberty when it was not proved by any stretch of evidence that it was the Appellant that committed the alleged contemptuous act. Learned lead counsel again argued to the effect that the way and manner the purported execution was levied on the said property in question, casts doubt on the execution. This is because, the occupants of the property were all left in the property with the gate being sealed without evacuating the occupants who by circumstances of nature have freedom of movement given their right of ingress and exit on the property. Learned lead counsel submitted that since the Lower Court only used the affidavit evidence which it did not properly evaluate, to convict the Appellant; this Court is in good position as the Lower Court to evaluate the documentary (affidavit) evidence before the said court and draw its own conclusions and the case of Dikibo v. Ibuluya (2006) 16 NWLR (Pt. 1006) 563 at 575 was cited in aid. It was also submitted by learned lead counsel that where a defendant in a cause challenges the validity of an order directed against him either by way of an appeal or other applications, he cannot be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other and the case of Group Damone v. Voltic (Nig) Ltd (2008) 7 NWLR (Pt. 1087) 637 at 660 was cited in aid. It is his position that it was while the Appellant and others have appealed against the judgment of the trial court in Appeal No: CA/AE/52/2010 and while the appeal was still pending, that the Respondent applied to the Lower Court for leave to enforce the judgment and orders of the said court and served same through substituted means on the Appellant and eventually got him convicted for contempt despite the pending appeal and which appeal is still pending before this Court. The Court was urged to allow the appeal, set aside the conviction of the Appellant and acquit the Appellant of contempt and dismiss the contempt application.

Dwelling on Respondent€™s issue 2, learned lead counsel for the said party engaged in what can be better described as a rehash of the submissions he had earlier made concerning what he perceived as the inappropriateness of the denial by the Appellant of the allegation of contempt contained in the affidavit of the Respondent, by paragraph 9 of the counter affidavit. Alternatively, it is the stance of learned lead counsel that the Appellant in any case never fared well in establishing the defence he raised in paragraph 9 of the said counter affidavit. He said to the effect that the Lower Court carefully considered the defences raised by the Appellant but that the bare denial that he never committed the contemptuous act and/or that the property in relation to which the act of contempt was committed is not covered by the judgment of 27/11/2008, did not avail the Appellant or is rather too weak to absolve him from guilt following the strength of the formidable case of contempt made against him. This Court was urged not to disturb the judgment of the Lower Court.

Dwelling on the argument of the Appellant as contained in paragraphs 4.23 and 4.30 of his brief of argument, to the effect that the judgment of the Lower Court was not properly executed and that this Court should set same aside, learned lead counsel for the Respondent submitted that the arguments at the said paragraphs are not based on any of the issues raised by the Appellant in this appeal. That the said arguments, are also not based on any of the grounds of appeal. That the Appellant never complained against the execution of the judgment and order of the Lower Court of 27/11/08, rather the appeal is only against the committal of the Appellant in the judgment of the Lower Court delivered on 18/05/2013 (sic). That the Appellant therefore cannot be allowed at this stage to canvass arguments not based on any of the grounds or issue distilled from the grounds of appeal. In the premises, this Court was urged to discountenance the said arguments.

The stance of learned lead counsel for the Respondent in respect of the arguments at paragraphs 4.31 €“ 4.33 of the Appellant€™s brief of argument to the effect that €œthe conviction of the Appellant by the trial court is perverse, unsupported by evidence and constitutes a miscarriage of Justice€ because the committal proceedings were taken against the Appellant during the pendency of an alleged Appeal No. CA/AE/52/10 against the judgment he is alleged to have disobeyed, is that the arguments in this regard are not supported by any of the grounds of this appeal. That the arguments are also not in consonance with any of the issues raised in the instant appeal. That in any case, the Appellant never raised the issue of invalidity of the order of the Lower Court of 27/11/08 in his counter affidavit and throughout the hearing of the application for his committal at the Lower Court. He submitted that the Appellant cannot be allowed at this stage to canvass argument on the validity or otherwise of the said judgment as the said argument is not based on any of the grounds or issues distilled from the grounds of the appeal. This is more so as no leave of this Court was obtained to so argue the issue. The Court was urged to discountenance the arguments in paragraphs 4.31 €“ 4.33 of the Appellant€™s brief on the above score. The Court was urged to resolve issue No. 2 in favour of the Respondent and uphold the decision and judgment of the Lower Court and dismiss the appeal.

The Appellant in his reply brief as expected responded to some of the arguments of learned lead counsel for the Respondent as reviewed above. I will refer to those I consider relevant in the course of resolving the broad issue I have formulated for the resolution of the appeal.

I cannot but observe that learned lead counsel for the Respondent consistently disclosed in the Respondent€™s brief of argument that he understood the contempt proceeding entertained by the Lower Court as being in the realm of civil proceeding. This much is clear from the submissions in paragraphs 5.04 €“ 5.06 and 5.12 of the said brief. In paragraph 5.06 it is stated thus: –

€œThe above ingredients of offence of civil contempt was (sic) proved beyond reasonable doubt against the Appellant in paragraphs €¦€¦€¦€¦€¦€¦€¦€¦€¦€

And in paragraph 5.12 it is also stated thus: –

€œIt hardly needs to be pointed out that the catch-phrase €˜proof beyond reasonable doubt€™ often used in our criminal and evidence law is not a magical terminology compelling the prosecution or one who alleges a crime in a matter to accomplish the task of a leviathan or do the impossible task. All the law requires is that the prosecution or the Respondent, as in the instant case, as an Applicant in a case of civil contempt, should sufficiently prove the essential ingredients of the offence and this is what the Respondent has done in this matter. €¦€¦€¦€¦€¦€¦€¦€¦€¦€¦€¦€¦€

It is my considered view that the position of learned lead counsel as stated above, really puts in doubt the vires or propriety of the P.O. that the notice of appeal in the instant appeal ought to have been signed by the Appellant personally. This is because I find it absurd how learned lead counsel for the Respondent could reasonably have expected what he recognised to be a case of civil contempt to have been translated or converted to a criminal proceeding simply because of the burden of proof the Respondent needed to have discharged to procure the reliefs he sought. Indeed, it is also my considered view, that learned lead counsel in a show of his supposed prowess in law, ought not to have pursued the P.O. relating to the non-signing of the notice of appeal in the instant appeal by the Appellant personally, against the backdrop of the stance that the contempt proceeding before the Lower Court was one of civil contempt taken out in a civil proceeding. Be that as it may.

Though conceding that the burden of proof on the Respondent in the contempt proceeding was to establish the ingredients of the offence of contempt beyond reasonable doubt, learned lead counsel for the Respondent in opposition to the stance of learned lead counsel for the Appellant that the identity of the Appellant as the person who committed the contemptuous act as alleged before the Lower Court, was not proved as it ought to have been done, forcefully submitted that the issue of the Appellant not being the person who actually committed the contemptuous acts was never before the Lower Court. That as the issue was being raised for the first time in this appeal, it was a fresh one in respect of which leave ought to have been first sought and obtained before it could be argued.

It is to be noted that it is clear as crystal from the record of appeal that the Appellant never pretended that he filed the instant appeal as of right and/or within the time prescribed by law for him to do so. He first sought for the indulgence of this Court to file the same by seeking for the prayers he considered to be relevant and the motion in this respect with a proposed notice of appeal duly exhibited thereto, was served on the Respondent. The Respondent was at the hearing of the motion represented by learned lead counsel who argued the instant appeal and he never opposed the motion. (See pages 145 €“ 146 of the record). The motion which learned lead counsel for the Respondent never opposed, had exhibited to it the notice of appeal that was filed by the Appellant and the grounds and particulars of which I have re-produced hereinbefore. It is puzzling how learned lead counsel for the Respondent who could have opposed the inclusion of the ground which he now claims relates to matter that was not in issue before the Lower Court, in the notice of appeal (and have the pronouncement of the Court on the matter at that stage) but failed to do so, can turn around at the hearing of the appeal to oppose the said ground as it were. I do not think an application seeking for the indulgence of the Court for anything that needs to be regularised should be treated with levity at the point in time it is being heard and only for the party who has done so to later in the proceeding take a stance contrary to the one he had earlier taken. In any event, learned lead counsel for the Respondent would appear to have lost sight of the position of law that when there is an allegation of the commission of a criminal offence against any person whether by way of a formal charge or by way of an averment in pleading, the identity of the person that is alleged to have committed the offence in question is always in issue, particularly when the person alleged to have committed the offence does not admit committing same. Hence, the requirement of the law that the allegation of the commission of an offence by a person must be proved against such person beyond reasonable doubt and the burden of proof in this regard does not shift. It always remains on the party that has alleged the commission of the crime in issue or in question. In the instant matter on appeal, it is obvious that the Appellant never confessed or admitted in any manner whatsoever that he committed any contemptuous act. And I do not see how else the Appellant could have been expected to disclose his denial, given the nature of the processes upon which the Lower Court investigated the matter before it, except by deposing that he did not do what he was alleged to have done. In other words, it is my considered view that even if learned lead counsel for the Respondent having not opposed any aspect of the notice of appeal at the stage of its regularisation, can now turn round to oppose the inclusion in the grounds of appeal, of the ground raising doubt as to the identity of the Appellant, the Appellant has in my considered view sufficiently raised the said issue in his counter affidavit by denying that he committed any contemptuous act as alleged by the Respondent.

Both learned lead counsel for the Appellant and Respondent are agreed as to the ingredients of the offence of contempt that must be established by the Respondent given the contemptuous acts the Appellant is alleged to have committed. They are also agreed that the ingredients of the offence by law, must be established beyond reasonable doubt.

The judgment of the Lower Court spans pages 136 €“ 144 of the record. Page 136 to the third paragraph of page 141 were devoted to the introduction of the case and review of the respective cases of the parties. The fourth paragraph of page 141 to the first paragraph of page 142 were devoted to restating settled position of law regarding failure to comply with an order of court. Having restated the allegations of the Respondent and having also observed that the Appellant made a general denial and that the property in question was not covered by the judgment of the court of 27/11/2008, and again restating the position of the law regarding documentary evidence, and also setting out the ingredients of the offence of disobedience to court order or for committal proceedings, the Lower Court went further to state thus on pages 143 €“ 144 of the record: –

€œIn the instant case, the 1st defendant is not raising any of these defences open at law to him but rather that the property upon which he was alleged to have committed the contemptuous acts was not covered or subject of the court judgment and orders of execution. In other words the 1st defendant is justifying his contemptuous acts on the identity of the subject matter which the totality of evidence before the court proved him wrong and negatived any of his defences if any.

The totality of evidence before the court lead to only one conclusion and that is the Plaintiff-Applicant has proved the contemptuous conduct against the 1st Defendant-Contemnor beyond reasonable doubt and the contemnor failed to rebut.

Consequently, I accept the Plaintiff-Applicant€™s affidavit evidence and hereby find the 1st defendant-contemnor guilty of disobedience of court order in Judgment of 27-11-2008, Enforcement Order of 23-02-2009 and all the subsequent Execution Processes connected therewith and

I hereby grant the application and commit the 1st Defendant-Contemnor EMEKA SYLVANUS MADUBUIKE to prison until he purges the contempt.€

In the following terms:

To undo all that he has done to the extent of contravention and or to undermine the orders of court particularly: –

1. Remove the locks to the warehouses on the ground floor of the plaintiff €“ applicant€™s property.
2. Remove locks to the main gate to the plaintiff €“ applicant€™s property.
3. Remove the fence wall blocking and barricading the plaintiffs €“ applicant (sic) access to his property.
4. File affidavit of compliance to be verified by the court bailiffs or officers of court preferably those who levied or executed the judgment orders on 6/07/2011 and the plaintiff €“ applicant.
5. Undertake in writing never to take the law into his hand except through due process of law in relation to this property.

THIS SHALL BE THE ORDERS of this Court. SO BE IT.€

The law is settled regarding how the burden of proof of €œproof beyond reasonable doubt€ may be discharged by the prosecution or whoever wishes to establish the commission of a crime by another person in any proceeding. It can be done by any or a combination of the following ways of proving the commission of a crime, namely; (i) by confessional statement(s); (ii) by circumstantial evidence; and (iii) by evidence of eyewitness otherwise referred to as direct evidence. See EMEKA V THE STATE (2001) 7 NSCQR 582 at 593-594; and MOSES V. THE STATE [2003] FWLR (Pt. 141) 1969 at 1987 amongst many others.

The evidence which the Respondent placed before the Lower Court and which it apparently relied upon and accepted in finding the Appellant guilty of contempt are necessarily the supporting affidavit of Form 49 and the Exhibits attached thereto and the further affidavit of the Respondent on Form 49 and the exhibits attached thereto. The affidavits in question were deposed to by the Respondent. The Respondent never showed himself as residing in/on the property or properties in respect of which the Appellant is alleged to have committed the contemptuous acts ascribed to him in either of the two affidavits. Neither was the Appellant disclosed to be residing on the said property or properties. In any case there is no deposition in the affidavits that the deponent saw the Appellant doing any of the alleged contemptuous acts. The position of the law is clear regarding how facts are to be proved when the facts are not the contents of documents. In this regard, if the fact to be proved is one which can be seen, evidence in that regard must be given by a witness who claims to have seen that fact. The Respondent has argued and this is just as the Lower Court itself said, that the Appellant made a general denial in respect of the depositions in the supporting affidavit. I cannot but observe again, as to how else the Appellant was expected to respond to an affidavit which itself never made any pointed allegation against the Appellant in that the deponent never claimed that he saw the Appellant do anything. The matter of contempt before the Lower Court was never made a Police case so the issue of confessional statement made to the Police clearly does not arise. This is not to say that a confession can only be made to the Police. By Section 28 of the Evidence Act, 2011, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. And having regard to the settled position of law, a confession can be in writing or made orally. There is no evidence of any confession made to any person in any manner by the Appellant in respect of the contemptuous acts he was alleged to have committed. I must also state that the fact that the Appellant was one of the various parties presumably affected by the orders of the Lower Court which he was alleged to have dealt with contemptuously, certainly is not enough circumstantial evidence to establish the offence he was alleged to have committed by the Respondent. Indeed, the fact that there are other parties cited as respondents in Form 49 on page 35 of the record as well as the uncontroverted fact that some other people were living on/in the property or properties in question before the execution of the judgment of the Lower Court only succeeded in whittling down any irresistible inference that could have been made from the fact that the Appellant being totally aggrieved with the execution, committed the contemptuous acts alleged against him. In other words, the alleged contemptuous acts could have been done or carried out by any other person apart from the Appellant. Flowing from all that has been said is that the Respondent never placed any evidence before the Lower Court showing the Appellant to be the actual person who committed the contemptuous acts alleged against him not to talk of proving such to have been the case beyond reasonable doubt. The Lower Court in my considered view did not properly apply the principle of law that the allegation of crime in a civil matter must be established beyond reasonable doubt to the evidence presented by the Respondent and which it accepted. If it had, the Lower Court was bound to have come to the conclusion that the Respondent did not prove the allegation of contempt against the Appellant beyond reasonable doubt. Indeed, it is a further display of a misconception and misapplication of the principle of €œproof beyond reasonable doubt€ for the Lower Court to have held that the Appellant was justifying his contemptuous act by raising the issue that the property over which he was said to have allegedly committed the contemptuous acts was not covered or was not the subject matter of the court judgment or orders on which execution was levied. This is so as there was nothing in the counter-affidavit remotely suggesting that the Appellant admitted committing the contemptuous acts even if they were in relation to the said property.

Flowing from the all that has been said is that the finding of the Lower Court that the Appellant is guilty of €œthe disobedience of court orders in judgment of 27/11/2008, enforcement order of 23/2/2009 and all the subsequent execution processes connected therewith€ on the evidence of the Respondent which it accepted, is undoubtedly perverse and cannot be allowed to stand. By this conclusion, the issues formulated by the parties for the determination of the appeal are accordingly resolved in favour of the Appellant.

I have in the course of resolving the broad issue by which I have resolved the issues formulated by the parties dwelled on the attack unleashed by the Respondent on submissions in the Appellant€™s brief relating to the non-establishment of the identity of the Appellant as the person who committed the contemptuous acts alleged against him and found to the effect that the position taken by learned counsel for the Respondent has no basis in law. I now only wish to say that I do not see any useful purpose that dwelling on the attacks unleashed by the Respondent on some other paragraphs of the Appellant€™s brief of argument would serve. This is because the arguments in question in the other paragraphs of the Appellant€™s brief of argument, are totally irrelevant for the resolution of the appeal and were not relied upon at all in this judgment.

In the final analysis, and having resolved the two issues formulated for the determination of the appeal by the parties in favour of the Appellant, it follows that the appeal is meritorious and is hereby allowed. Accordingly, the judgment of the Lower Court delivered in Suit FHC/E/33/94 on 18/6/2013, is set aside and the Appellant is hereby acquitted and discharged of the contempt of court in respect of which he was found guilty by the Lower Court.

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Other Citations: (2016)LCN/8825(CA)