ECOBANK NIGERIA LIMITED
1. ANCHORAGE LEISURES LIMITED
2. SILOAM GLOBAL LIMITED
3. HONEY FLOUR MILLS PLC
SAMUEL CHUKWUDUMEBI OSEJI, JCA): This is an appeal against the Ruling of the Federal High Court, Lagos Division, delivered by M.B. IDRIS J. on the 15th day of January 2016 wherein the Appellants preliminary objection was upheld and the process therein struck out.
The brief facts of this case was that the Respondents herein had entered into an import finance facility/Revolving product finance facility and over draft facility with Oceanic Bank Plc.
Subsequently the said Oceanic Bank Plc was acquired by the Appellant and which acquisition includes the rights, liabilities and assets of the said Oceanic Bank Plc. The Appellant eventually embarked on a process of recovery of debts owed including that of the Respondents, borne out of the aforementioned credit facilities.
The Respondents through the chairman of the Honeywell Group Ltd (Oba Otudeko) entered into negotiations with the leadership of the Appellant on the way forward to recover the said debt and on 22nd July 2013 an agreement was reached and concretised via correspondences on that very day wherein out of the N3.5 Billion outstanding debt the Respondents were granted a concession to pay N5.5 Billion in full settlement of the debt owed. It was also agreed that the initial payment shall be the sum of N500, 000,000 with the balance paid up before the exit of the Central Bank examiners who came for inspection in the Appellant bank. The said N500, 000,000 was paid immediately followed by other payments leading to the clearing of the said debt of N3.5 Billion. The Respondents subsequently wrote the Appellant for a discharge of the debt owed and the return of the documents used as collaterals for the credit facilities but were told that they did not keep to the agreement requiring them to clear the debt before the examiners left the bank by end of August 2013. In which case they are now required to pay the original sum of N5.5 Billion.
This led to series of correspondences between the parties and eventual reference to the Banker Committee and Subcommittee on Ethics and Professionalism which body found in favour of the Respondents.
However following more threats by the Appellants to publish the names of the Respondents as delinquent debtors with the necessary consequences, the Respondent instituted an action in the Federal High Court in suit No.FHC/L/CS/1219/2015 wherein they sought inter alia, the specific performance of the agreement of 22-7-2013.
The Respondents also filed a motion exparte seeking some injunctive reliefs against the Appellant.
The lower court upon hearing the said application refused to grant it but made an order that parties should maintain the status quo ante bellum pending further orders of the court.
However the Appellant proceeded to file another suit in the same Federal High Court by way of petition for winding up in Suit No.FCH/L/CP/1569/2015 and it was before TSOHO J. The suit was eventually discontinued and a similar one in Suit No FHC/L/CP/1689/2015 was filed on 9-11-2015 before Yunusa J. of the same Division of the Federal High Court and it was done contemporaneously with a motion exparte seeking an order of court to freeze the accounts of the 3rd Respondent and this was granted by the said court, but subsequently varied upon application on 4-12-2015 to have the order set aside. Similar suits were also filed against the 1st and second Respondents in suits Nos.FHC/L/CP/1570/2015 and FHC/L/CP/1572/2015 respectively.
It was these suits filed by the Appellant subsequent to the order to maintain status quo ante bellum in suit No.FHC/L/CS/1219/2015 that prompted the three Respondents to file Forms 48 and 49 against the Appellant together with a motion on a notice pursuant to Order 35 Rules I and 2 of the Federal High Court (Civil Procedure) Rules 2009 seeking committal orders against the Appellant through its alter ago or Directing minds for gross disobedience of the order of the lower court. The Appellant upon being served the aforementioned processes reacted by filing a counter affidavit and a written address against the Respondents motion on notice and also raised a preliminary objection seeking the striking out of the Respondents forms 48 and 49.
In a Ruling delivered on 15-1-2016 the lower court upheld the preliminary objection and struck out the committal proceedings for lack of proof of service of the originating processes on the Appellant.
Apparently not satisfied with the said Ruling of the lower court, the Appellant filed a Notice of Appeal dated 15-1-2016.
Due to the peculiar circumstance of this appeal I am constrained to reproduce the three grounds of appeal and their particulars herein below:-
GROUND 1 (ONE)
The learned trial Judge erred in law by assuming jurisdiction to determine Respondents committal forms 48 and 49 including their Motion on Notice dated 25th November, 2015 all seeking to commit Appellants directing mine for an alleged contempt committed ex-facie curie.
i. The law is trite that a trial court which order is subject of an allegation of contempt. OKU VS
STATE (1970)1 ALL NLR 60 AT 70 and OMOJAIYE VS UMORU (1991)8 NWLR (PT 614)178 SC.
ii. Respondents by their motion on notice dated 25 November, 2015 sought of the lower court a committal order against the Appellant over an allegation of contempt allegedly committed outside the court.
iii. The lower court erred in law by assuming jurisdiction to determine Respondents committal forms and the motion on notice both seeking the committal of the Appellants
iv. By the lower courts assumption of jurisdiction to determine Respondents Motion on notice dated
25th November, 2015 and the instituted committal processes, the lower court became a judge in its
v. The lower courts assumption of jurisdiction to hear and determined the committal forms 48 and 49 including the motion on notice dated 25th November,
2015 runs against the law and enshrined principles of natural justice.
GROUND 2 (TWO)
The lower Court erred in law by merely striking out Respondents motion on notice dated 25th November, 2015 and the committal forms 48 and 49 even when
Same was shown to be incompetent and against inalienable rights guaranteed by the constitution.
The law is trite that rights guaranteed by the
i. constitution are inalienable and fundamental.
ii. Respondents committal forms and the motion on notice dated 25th November, 2015 are all seeking to punish the Appellant for seeking redress in a court of law, a right guaranteed by Sections 6(6) (b) and Section 36 of the 1999 Constitution.
iii. A partys right to seek redress before a court of law is fundamental and can never be stifled. Oforgu vs Allanah (2000)2 NWLR (PT 644) 243.
IV. The law court erred in law by merely striking out Respondents motion on notice dated 25th November, 2015 and the committal forms having been show to be Against Appellants inalienable and fundamental rights.
v. Appellants Notice of Preliminary Objection ruled upon by the lower Court seeks the dismissal of the committal Forms 48 & 49 and the entire contempt proceedings as mischievously and irregularly initiated by the Respondents who are Plaintiffs at thelower Court.
GROUND 3 (THREE)
The lower Court erred in law and denied Appellant its
Right to fair hearing by failing to determine all the issues
Raised the Appellants Notice of Preliminary Objection dated 8th December, 2015 against the committal form 48 and 49
Briefs were subsequently filed and served by the parties.
The Appellants brief of argument is dated and filed on 26-1-16 while the Appellant Reply brief of argument is dated and filed on 19-2-16. The Respondents brief of argument is dated and filed on 10-2-2016.
At the hearing of the appeal on 22-2-16 parties duly adopted and relied on their respective briefs of argument.
This was however preceded by the moving of the Notice of preliminary objection filed by the Respondents on 10-2-2016 wherein they referred to and adopted the argument in support as embedded in pages 5 to 9 of the Respondents brief of argument. The Appellants Reply in opposition to the said preliminary objection is at pages 2 to 7 of the Appellants Reply brief of argument filed on 19-2-2016.
As is customary, I will deal first with the Notice of preliminary objection. The grounds for seeking the striking out of the Appeal is as follows:-
(i) Grounds 1, 2 and 3 of the Notice of Appeal do not arise from the Ruling of the lower court.
(ii) Grounds 1, 2 and 3 do not attack the ratio decidendi of the Decision of the lower court.
(iii) Grounds 1, 2 and 3 are misrepresentations of the Rulings of the lower court.
(iv) The particulars in support of ground 3 are unknown to law same are vague, ill defined and in nubibus.
(v) Further to (iv) above ground three has no cognisable particulars as mandated by order 6 Rule 2(2) of the Court of Appeal Rules, 2011.
In the arguments in support of the said preliminary objection it was submitted, firstly, that as per ground (i) of the Notice of Appeal, there is nowhere in the entire Ruling of the lower court where it determined the Respondents motion on notice, rather at page 28 of the Record, the lower court held that it did not have the jurisdiction to deliver into the merit of the committal proceedings.
On ground (3) it was submitted that it does not arise from the decision of the lower court because the lower court granted the prayer to strike out the committal processes but now the Appellant is insisting that it ought to be order of dismissal. This is aside from the legal position that where a court finds that it has no jurisdiction the proper order to make is that of striking out. Vide LADO VS CPC (291)18 NWLR (PT 1279 689; 730-731, OKOYE VS NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. (1991)6 NWLR (PT 199)501; PETER OBI VS INEC (2007)11 NWLR (PT 1046) 560.
It was further submitted that the particulars in support of ground (3) are ambiguous and nebulous as they did not pin point or disclose any single issue raised in the preliminary objection that was not considered by the lower court. This it was contended, goes contrary to order 6 Rule 2 (2) of the Court of Appeal Rules 2011 and as such incompetent and liable to be struck out.
Consequently based on the decision in APAPA VS INEC (2012)8 NWLR (PT 1303)409 at 424 since the grounds of appeal does not arise from the decision complained against, they are incompetent and the Appeal should be struck out.
The Appellants reply is at pages 2 to 7 of the Appellants brief of argument. Therein it was contended on behalf of the Appellant that Ground (1) as explained by its particulars attacked both the hearing and determination of the committal processes and the determination alone as posited by the Respondents.
On the Respondents argument that ground (2) did not also arise from the Ruling, it was submitted that a clear perusal of Ground (2) shows that the complaint therein is the action of the lower court in merely striking out of the whole committal processes upon consideration of only the objection against the service of Forms 48 and 49.
It was then urged that the case of ILLOABACHIE VS ILLOABACHIE (200)5 NWLR (PT 656)178 relied on by the Respondents should be discountenanced because Ground (2) is competent having challenged the joint striking out order on both Form 48 and 49 as well as the motion on notice when they have been shown to be incompetent and against the rights of the Appellants to assert its right in the court.
On ground 3, it was submitted that it is against the lower courts denial of Appellants right of fair hearing regarding all the issues submitted against the motion on notice dated 25th November 2015 and the committal Forms 48 and 49.
This court was then urged to dismiss the preliminary objection.
Now it is trite that when the competence of an appeal is raised, the court is duty bound to first determine whether the appeal is competent before taking any further step in the Appeal. Thus where an objection is raised in respect of the competence of an appeal the jurisdiction of court to entertain the appeal becomes an issue. Consequently, it is imperative for the court to address the objection raised before delving into the merits or substance of the Appeal. See TIZA VS BEGBA (2005)6 SCM 173; FAITH ENT. LTD VS BAS. F (NIG) LTD (2010) 1 SC (PT 11) 186.
It should also be borne in mind that the whole purpose of a ground of appeal is to give sufficient notice and information to the Respondent on the precise nature of the Appellants compliant against the judgment appealed against.
In other words, the grounds of appeal are meant to allow the court and the Respondent the opportunity of knowing what the Appellant is averse to in the judgment being appealed against. See BHOJSONS PLC VS DANIEL KALIO (2006) 2 SCJN 156; SARAKI VS KOTOYE (1992) 11-12 SCJN 26; GARBA VS KWARA INVESTMENT CO. LTD (2005) 1 SCM 79.
In the instant case that Respondent is of the stance that the three grounds of appeal are not competent as they do not arise from the ruling of the lower court and did not attack the ratio decidendi of the ruling of the lower court. Furthermore that the particulars in support of grounds (3) are unknown to law.
I have read through the three grounds of appeal and the particulars in support which I had earlier reproduced in this judgment.
Much as I agree that they are improperly or inelegantly couched, I am however of the view that they relate to or constitute an attack on the ruling of the lower court. They indeed provide sufficient notice and information to this court and invariably to the Respondents who have based on the said grounds formulated an issue for determination therefrom with a detail argument in support.
In the circumstance, I believe that the end of justice will be better served if some forgivable discrepancies in the grounds of appeal are not allowed to constitute impediments to the hearing and determination of an appeal on the merit. It is trite laws that where the parties to an appeal are not misled by the contents of a ground of appeal, complaints about its form becomes a technicality which does not occasion a miscarriage of jusitice. See MILITARY ADMINISTRATOR, BENUE STATE VS O.P ULEGEDE ESQ. (2011) 17 NWLR (PT 741) 194.
On this note I hold that the preliminary objection raised by the Respondents be and is hereby dismissed.
On the main appeal, the Appellant formulated two issues for determination in the brief of argument filed on 26-1-2016 and they read thus:-
(1) Whether the lower court was right to have discountenanced all the issues raised in the Appellant counter affidavit and written address including those in the notice of preliminary objection and in consequence merely struck out the Respondents committal processes?
(Grounds 2 and 3)
(2) Whether the lower court was right to have heard and determined the committal proceedings against the Appellant in respect of the same courts exparte order?
In the Respondents brief of argument filed on 10-2-2016 a sole issue was distilled for determination as follows:-
Whether the lower court was right when it struck out the Respondents contempt proceedings upon a determination of the Appellants notice of preliminary object dated 8th December, 2015 without determining the said contempt proceedings on the merits. (Grounds 1, 2 and 3).
I will adopt the two issues in the Appellants brief in the Resolution of this appeal.
Herein, it was submitted by Learned Senior Counsel for the Appellant that the Appellants grouse is that the lower court did not consider all the issues canvassed in both the counter affidavit and written address against the Respondents committal motion as well as the arguments canvassed in the notice of preliminary objection against the committal forms. Also that the lower courts ruling on the consolidated hearing of the processes and which full consideration ought to have occasioned a dismissal order ended up with the mere striking out of the Respondents committal processes.
He added that the ruling of the lower court which did not contain any findings and/or reasoning over all the issues canvassed in the Appellants counter-affidavit and written address caused the Appellant great sufferings.
On the need for a court to consider all the issues canvassed by parties he cited the following cases. BAYOL VS AHEMBA (1999) 10 NWLR (PT 623) 381; UBA PLC VS MRS UGOENYI (2011) LPERL (5065) CA; OGUNYADE VS OSHUNKEYE (2007) 15 NWLR (PT 1057) 218.
It was further contended that the consolidated ruling delivered by the lower court ran short of the mandatory conditions expected of a ruling because of the refusal by the lower court to consider and decide on all issues presented before it and on the authority of GOODNEWS AGBI VS CHIEF AUDU OGBE (2004) 2 SCJN 1, the lower court failed to show a proper appreciation of the issues raised by the Appellant in its ruling. But merely considered the issue of service in the Appellants notice of preliminary objection.
Learned Senior Counsel also emphasized that while the Appellants notice of preliminary objection was against the committal forms 48 and 49, the counter affidavit and written address were filed against the motion for committal dated 25th November 2015. He added that the lower court erred and occasioned miscarriage of justice by failing to consider arguments canvassed against the said motion on notice, because, even though the Appellant had filed a preliminary objection against the committal forms 48 and 49, the lower court wrongly merely determined only one issue in the said objection resulting in the striking out of all the committal processes including the motion on notice dated 25-11-15 and heard together with the preliminary objection.
It was further submitted that, had the lower court considered all the arguments in the Appellants objection and the counter affidavit with written address which showed that the Appellant was not in contempt having exercised its right to institute an action, the lower court would have dismissed the committal processes instead of an order of striking out.
Dwelling on this issue, Learned Senior Counsel for the Appellant pointed out that he informed the lower court on 11-12-2015 and 14-12-2015 that in matters regarding trial and determination of contempt of court, it will be unfair, and unlawful for the same Trial Judge to hear and determine processes and /or conduct proceedings seeking to punish another party over the order of the same court. However, inspite of that, the lower court in its ruling delivered on 15-1-2016 warned that at any time when the Respondent will properly commence the committal proceedings, the court will deal decisively with any party who may be found to have ran fowl of the order of the court.
It was then submitted that the Appellants grouse herein, is that the lower court erred in law and rules of procedure by hearing the committal proceedings because the same judge whose order is subject of the alleged contempt is not qualified to hear/determine the committal processes or conduct the proceedings. On this he cited in support of the following authorities.
MILITARY GOVERNOR KWARA STATE VS AFOLABI (1991) 6 NWLR (PT 196) 212; BAMBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR 9PT 622) 290. OJENGBEDE VS ECAN (2001) 18 NWLR (PT 746) 771. This court was then urged to resolve the issue in favour of the Appellant.
Replying on the two issues in their own sole issue, for determination, Learned Senior Counsel for the Respondents pointed out the fact that contempt proceedings is sui generis and being a separate proceedings it has its own mode of commencement, which an applicant must strictly comply with, otherwise the court will lack the jurisdiction to countenance the proceedings. He added that the present contempt proceedings at the lower court was commenced pursuant to the provisions of Section 72 of the Sheriffs and Civil Process Act and Order IX Rule 13 of the Judgment (Enforcement Rules) which make forms 48 and 49 the originating processes in contempt proceedings and as such service of same must be properly done before the court can rightly assume jurisdiction to hear it. Therefore the court lacks the necessary jurisdiction to delve into the merit of the Suit where an objection as to lack of proof of service of the originating process in the Suit has been upheld. On the necessary conditions to be satisfied before a court will have the jurisdiction to entertain a Suit he cited the case of MADUKOLUM VS NKEMDILIM (1962) 1 ALL NLR 587.
It was therefore learned Senior Counsels submission that in the instant case, the proceedings was initiated via forms 48 and 49 and subsequently, the Respondents filed a motion on notice seeking an order of committal against the Appellant and its directing minds. But the Appellant filed a preliminary objection seeking the striking out of the Respondents form 48 and 49 on the ground that the processes were not personally served on the Appellant, amongst others. The Appellant also filed a counter affidavit and written address against the motion on notice filed by the Respondents. Furthermore that the lower court upon hearing the parties delivered a ruling on 15-1-2016 wherein the Appellants preliminary objection was upheld because there was no proof of service of forms 48 and 49 on the Appellant. Consequently, the committal proceedings were struck out for want of jurisdiction.
It was further argued that the lower court having found that there is no proof of service of form 48 and 49 on the Appellant was at that point divested of jurisdiction to entertain any other process filed in the contempt proceedings including the motion on notice dated 25-11-2015.
Learned Senior Counsel also referred to the findings of the lower court in the said Ruling at page 14 and 20 of the Record to submit that the lower court demonstrated a perfect understanding of the true position of the law.
It was further submitted that since the Appellant, going by the preliminary objection is convinced that the lower court has no jurisdiction to entertain the committal proceeding it becomes ironical that it now complains that the court did not determine the committal proceeding on the merit even when the court has upheld the preliminary objection challenging the jurisdiction to entertain it.
He added that it is also strange that the Appellant who in the notice of preliminary objection sought an order to strike out the committal processes now complains that the court ought to have considered all the processes and make an order of dismissal.
On the Appellants issue 2, it was submitted that nowhere in the entire ruling did the lower court determine the committal proceedings against the Appellant having held that it has no jurisdiction to entertain same.
He added that the courts jurisdiction to hear the committal proceeding on the merit cannot be invoked without a setting aside of the order declining jurisdiction and there is no appeal against the said order.
This court was then urged to dismiss the appeal.
The Appellants reply to the Respondents brief of argument is at pages 7 to 23 of the Appellants reply brief of argument filed on 19-2-2016. The issue raised therein a well noted and will be addressed in this judgment as the need arises.
The fact of the events leading to the filing of form 48 and 49 as well as motion on notice for committal proceedings against the Appellants directing minds by the Respondents have earlier been detailed in this judgment and bears no repetition. The Appellant had in response to the committal processes filed a notice of preliminary objection challenging the jurisdiction of the lower court on the basis of lack of proper service of the originating processes personally on the alleged contemnors.
It is necessary to reproduce the said notice of preliminary objection with the grounds in support. It reads thus:-
TAKE NOTICE that the Applicant herein named intends, at the hearing of the Respondents FORM 48 AND 49 (NOTICE OF DISOBEDIENCE AND TO SHOW CAUSE WHY ORDER OF COMMITTAL SHOULD NOT BE MADE) to rely upon the herein contained objection seeking the striking out of the Respondents FORM 48 AND 49 on grounds herein contained.
FURTHER TAKE NOTICE that the grounds of objection are as set down seriatim:
1. Contrary to the strict requirement of personal service of committal forms, Respondents herein did not personally serve the FORM 49 on the Applicant.
2. Respondents caused the committal FORMS 48 and 49 to be dumped at the office of the Applicants firm of solicitors.
3. Committal FORMS 48 and 49 are originating processes intended, stipulated and mandated to be served personally on the person sought to be committed.
4. Leave of this Honourable court was never sought nor obtained before Respondents herein dumped the committal originating FORMS at the offices of Applicants counsel.
5. Instant committal proceedings is against the directing minds of the Applicant in personam.
6. Without proper service as mandated by all regulatory laws on committal proceddings, this honourable court lacks the vires and/or jurisdiction to countenance the instant committal FORMS 48 AND 49.
FINES/INCONGRUOUS AND VACANT RELIEF
7. The laws regulating committal proceedings conditions the presentment of the person(s) alleged to have ran afoul of a duty issued order of court.
8. Committal proceedings cannot be maintained against abstract matter or incorporeal being(s).
9. An order of court against any abstract matter or incorporal being is not enforceable and vacant.
10. Any Order in the manner of (9) above resulting from the eventual determination of the committal FORM 49 would be an instrument, a result of an exercise in futility.
11. Courts are enjoined not to engage in any futile exercise or that which end is a fait accompli.
12. This Honourable court cannot grant a relief not sought or prayed for.
13. Respondents cannot by the instant committal FORMS 48 and 49 lift the veil of the Applicant herein.
14. As against Respondents abuse of the process of court, committal forms are intended and construed only for the committal of a judgment debtor over un-paid judgment sum or a contemnor who has refused to obey a duly issued order/induction of court.
15. Punishment for contempt as provided under all applicable laws is committal and never fine as incongruously sought by the Respondents.
16. Respondents cannot be allowed to claim damages and/or profit over their misconceived allegation of contempt.
ALLEGED CONTEMPT EX-FACIE CURIE
17. The law is that a court (as constituted) which order is subject of a committal proceedings lacks the jurisdiction to hear, try and/or determine same.
18. Respondents committal FORMS 48 and 49 pending before this Honourable Court runs afoul of rule natural justice.
EX-DEBITO JUSTITIAE, APPLICANT NOT GUILTY OF CONTEMPT
19. The law is that all rights guaranteed under the 1999 Constitution are fundamental, inalienable and cannot be derogated except as provided by the same 1999 Constitution.
20. Applicants right to approach the courts over the determination of her right is constitutionally guaranteed.
21. There is no exception in the 1999 Constitution to Applicants right of action before the courts.
22. Applicant did not take any extra-judicial action as per the order of court directing the maintenance of status quo ante bellum.
23. Applicant, having only exercised her constitutional right, is not guilty of any contempt regarding order directing the maintenance of status quo ante bellum.
The Respondents motion on notice dated 25-11-2015 and filed on 26-11-2015 also prays the court as follows:-
1. AN ORDER of this Honourable court imposing such fines as it might deem and assess necessary and appropriate against the Defendant/Contemnor/Respondent for disobedience of the Order of this court made on 10th August 2015 by Hon. Justice M.B. IDRIS.
2. In the alternative and/or further to (1) above, AN ORDER of committal of the defendant through its alter ego and directing minds to terms of imprisonment for disobedience of the order of this court made on 10th August 2015 by hon. Justice M.B. IDRIS J.
(3) Further to (1) (2) above, AN ORDER of this HONOURABLE court directing the Defendant/Contemnor/Respondent to give the appropriate undertaking to desist from treating this Honourable court and its orders with contempt.
The Appellant hand in reaction to the above motion on notice filed a 15 paragraph counter affidavit and a written address in support.
The Appellants notice of preliminary objection was heard together with the aforementioned forms 48 and 49 as well as the motion on notice dated 25-11-2015 for committal proceedings.
The Learned Trial Judge delivered a well considered ruling on the two applications on the 15-1-2016 wherein at the onset of the said ruling at page 1 of the additional record it was stated thus:-
This ruling is in respect of two (2) applications. The first motion on notice filed by the Plaintiffs dated 25th November, 2015 in these terms .. .
At page 8 of the ruling in the additional record the Learned Trial Judge continued thus:-
The application was supported by an affidavit and a written address. The Plaintiffs filed a further affidavit. The Defendant filed a counter affidavit and a written address in opposition.
The Plaintiffs filed a further affidavit and a written reply on points of law.
The second application is the notice of preliminary objection filed by the Defendants in these terms
At pages 14 of the Ruling in the Additional record it was continued as follows:-
At the hearing, learned Senior Advocates for the parties relied on the processes filed and adopted their respective written addresses. I wish at this point to quickly resolve a jurisdictional issue which had been argued by the parties in their respective written addresses, and this had to do with the issue and service of the Forms 48 and 49 in this case. The Defendant had argued that the forms 48 and 49 were not properly issued and served on it, therefore this court lacks the vires and/or jurisdiction to countenance same.
After an exhaustive finding of fact and consideration of the principles of law guiding Service of originating processes the learned trial judge concluded and held at pages 27 to 28 of the Additional record as following:-
It appears that the Forms 48 and 49 were not properly endorsed with the particulars of service.
In effect, there is no reliable or authentic information before the Court as to the service of the Forms 48 and 49 on the Defendant herein.
This issue goes to the issue of the jurisdiction of the Court. Let me warn the parties in this case.
This Court has made an order that the parties maintain the status quo ante bellum. This order is still valid and binding on all of the parties until it is set aside by an order of a Superior Court.
Let no party take any action in disregard of this Order, and any party that has already taken any such action should retrace its steps with immediate effect. When the disciplinary jurisdiction of this Court is properly invoked, it will not hesitate to deal with any party in breach of its orders. The Court can bark and it will bite. Let all the parties be warned.
The jurisdiction of this Court to determine the committal proceedings on the merit has not been properly invoked and same is hereby struck out.
From the above set out Ruling of the lower court, there is no doubt that all the committal proceedings brought before it including the motion on notice dated 25th November 2015 were struck out for want of jurisdiction to entertain them due to lack of proper service of the said processes.
It is settled by plethora of authorities that service of originating processes on a party to the proceedings is a fundamental and imperative step in the process of adjudication by a court of law. It is what ignites or give vent to the jurisdiction of the court to entertain the matter and make orders that will be valid and subsisting. Consequently, it is not an issue for the exercise of discretion by the court because it is a crucial and basic step that must be properly taken in the litigation process and where not complied with, it deprives the court of the requisite jurisdiction to proceed with the hearing of the matter.
The Apex court had cause to address the issue of service of originating processes in the case of MARK VS EZE (2004)5 NWLR PT 865)54 wherein at page 79 it was held that:-
Service of the process especially originating
process is an essential condition for the court to have competence or the jurisdiction to entertain the matter. Further, failure to comply with this condition would render the whole proceedings including the judgment entered, and all subsequent proceedings based thereon,
wholly irregular, null and void.
See also NJOEMENA VS UGBOMA (2014) LPELR (22494) CA; MADUKOLU VS NKEMDILIM (supra); U.B.A. PLC VS AJILEYE (1999)13 NWLR (PT 633) 116; OKE VS AIYEDUN (1986)2 NWLR (PT 23) 548; SKENCONSULT (NIG) LTD VS UKEY (1981) 1 SC 6 and KADIRI VS EWUOSO (2014) LPELR (22954) C.A. where this court per Oseji JCA posited at page 29-30 of the Report that:-
Service of any originating process is thus a basic or fundamental requirement in the activation of the jurisdiction of the court against any defendant. Service of process is therefore essentially for the person to whom it is directed to have knowledge that he has a case to answer or claim to dispute before the court.
In the instant case it was ironically the Appellant that complained of lack of proper service of the relevant originating processes on the Appellant and accordingly by way of a notice of preliminary objection sought the order of the lower court to strike out the processes for want of jurisdiction to hear them. Let it be made clear now that the forms 48 and 49 as well as the motion on notice for committal brought pursuant to Order 35 of the Federal High Court Rules 2009 are two sides of the same coin. They are meant to achieve the same purpose which is to commit the Appellant for contempt by acting contrary to the order of the lower court that parties should maintain the status quo ante bellum until further order of the said court. Whether the said committal proceedings is justified is entirely not in issue in this appeal.
The Learned Trial Judge in his wisdom and acting quite rightly in accordance with the tenets of the law and proper administration of justice opted to address the issue of jurisdiction raised by the Appellant in the preliminary objection. After an exhaustive analysis and thorough finding of fact he came to the conclusion that no proper service of the committal processes was effected on the appellant and as such lacks the jurisdiction to entertain the committal processes before the court.
He accordingly upheld the Appellants preliminary objection and struck out the said committal processes.
It should be noted that this was done after a review of all the processes in the proceedings including the parties affidavit, counter affidavit and written addresses.
But given the law that want of jurisdiction deprives a court of the competence to proceed with the hearing of any matter before it, the lower court did what should be termed the needful which is an order of striking out and this order was expressly stated as follows:-
The jurisdiction of this court to determine the committal proceedings on the merit has not been properly invoked and same is hereby struck out.
Having so ordered that the processes be struck out the Appellants complaint that the lower court did not consider all the issue canvassed in the counter affidavits and written addresses against the Respondents committal motion and preliminary objection does not arise in the circumstance. Worse still, the Appellants prayer in the preliminary objection is for an order to strike out Forms 48 and 49 which are the Forms for committal which by law ignites the process of trying a contemnor for disobeying order of the court.
Now the complaint is that the lower court ought to have heard and determine the affidavits and counter affidavits as well as the written addresses and make an order of dismissal instead of an order of striking out. But the question again is, can a court proceed to hear and determine a matter in which it has found and ruled that it has no jurisdiction to entertain?
The aim or essence of a preliminary objection is to terminate a Suit at infancy, or as it were, to nip it at the bud in that dissipating unnecessary energies in considering an unworthy or fruitless matter in a courts proceedings, in other words, it forecloses the hearing of a matter in order to save time and as in this case where there is clear proof of none services of originating process on the Appellant, it is to avoid embarking on an exercise in futility because such proceeding or judgment therefrom is a nullity abinitio.
See EFET VS INEC (2011) 7 NWLR (PT 1247) 423 at 444; YARO VS AREWA CONSTRUCTION LTD (2007) 17 NWLR (PT 1063) 333.
Further in the case of EFET VS INEC (Supra) the Supreme Court held at page 451 that courts of law dissipate energy only on live issues. Courts of law have long left academic issues to the academia.
In the instant case, the court cannot proceed to dissipate energy in the discourse of a matter which it lacks competence to entertain ab nitio due to lack of proper service of the originating processes on the Appellant.
On this premise, this issue is resolved against the Appellant.
On Issue 2, having resolved Issue No 1 against the Appellant, I find based on the arguments presented in support thereof that given the fact that the lower court clearly and glaring specified in its ruling that it lacks the jurisdiction to determine the committal proceedings on the merit. It becomes an absolute exercise in futility to embark on an examination whether the said court was right to have heard and determine the committal proceedings against the Appellant over the alleged ex facie curiae contempt when the ruling of the court is very clear and unambiguous to the effect that it cannot proceed to hear the contempt proceedings on the merits.
This issue is therefore, in my humble view, speculative. A court should not decide a case on mere conjecture or speculation because courts of law are courts of fact and law. They decide issues on facts established before them and on laws and must avoid speculations.
See ANI VS STATE (2009) 6-7 SC (PT III) Page 1; AGIP (NIG) LTD VS EZENDU (2010) 1 SC (PT II) 124;
The Appellant had indeed based its complaint on the comment by the Learned Trial Judge in the ruling that:-
Let no party take any action in disregard to order, and any party that has already taken any such action should retrace its steps with immediate effect. When the disciplinary jurisdiction of this court is properly invoked, it will not hesitate to deal with any party in breach of its orders.
The court can bark and it will bite. Let all parties be warned.
For the Appellant this constitutes a hearing of the committal proceedings. If indeed it is, where then or what is the effect of the specific order of the court striking out the said committal proceedings?
I must emphasise again that a court of law has no jurisdiction to speculate or conjecture neither will it succumb to the lure or temptation to speculate on any issue moreso that the ruling and orders of the lower court as in the instant case is very clear and unambiguous. See EJEZIE VS ANUWU (2008) 4 SCNJ 113.
The Appellants stance on this issue is not only speculative and conjectural but also unwarranted.
This issue is accordingly resolved against the Appellant.
On the whole this appeal is hereby dismissed for lack of merit.
The ruling of the Federal High Court Lagos Division, delivered by M.B. IDRIS J. on 15-1-2016 is hereby affirmed.
Parties to bear their costs.
SIDI DAUDA BAGE: I read in draft from the well considered judgment of my Learned brother S. C. Oseji, JCA. I agree with the reasonings and the conclusion reached on the judgment. I do not have anything useful to add. The appeal is also dismissed by me for lack of merit. I also affirmed the ruling of the trial Court delivered on 15-01-2016.
I abide by all the order as to costs contained in the lead judgment.
ABIMBOLA OSARUGUE OBASEKL-ADEIUMO, JCA: I have had a preview of the judgment just delivered by learned brother, OSEJI, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother has adequately considered the relevant issues in this appeal. I have nothing more useful to add. Accordingly, this appeal fails it is dismissed. I abide by the order of cost made in the leading judgment.
A.B. Ogunba SAN with G.C Duru; O.O. Kushimo; A. O Ajiboye and O. O. Philips for the Appellants.
Chief Wole Olanipekun SAN with Oluyele Delano SAN, Ade Adedeji SAN, O. Olanipekim; Bolarinwa Awuyola; Faith Adarighofua, Michael Akinleye, Tola Adetomiwa and Oluosomi Omamegbe (Miss) for the Respondents.