In The Court of Appeal of Nigeria
On Thursday, the 21st day of June, 2001
Before Their Lordships
DENNIS ONYEJIFE EDOZIE Justice of The Court of Appeal of Nigeria
OKWUCHUKWU OPENE Justice of The Court of Appeal of Nigeria
SIMEON OSUJI EKPE Justice of The Court of Appeal of Nigeria
SUNDAY SAMUEL UDOH-Respondent…………………….A…………………….OPENE, J.C.A. (Delivering the Leading Judgment): In this case, the plaintiff who is now the respondent brought an action against the defendant/appellant and one Chief Felix Assam at Ikom High Court claiming against them for possession of a cocoa farm or the sum of N8 million damages in alternative. On 27/7/99, Michael Edem J. entered judgment in default of a statement of defence for the sum of N50,000.00 as general damages or in the alternative in line with paragraph 17(1) (2) (3) of the statement of claim. The appellant who was the 2nd defendant thereupon filed a motion to set aside the ruling with a prayer for stay of execution pending the determination of the application. He also filed a notice of appeal against the said judgment and also a motion for a stay of execution pending the determination of the appeal.
On 26/8/99, the plaintiff filed a motion for committal which was fixed for hearing on 1/9/99 and this was served on the appellant’s wife when the matter came up for hearing on 28/10/99 before Uke J. the appellant was absent, the learned trial Judge directed that the appellant be served with a hearing notice and the matter was then adjourned to 22/11/99 for hearing. On 19/11/99, the hearing notice was served on the appellant through his son and when the matter came up for hearing on 22/11/99 the appellant was not in court, the learned trial Judge proceeded to hearing of the motion for committal and in his ruling delivered on the same day, he found the appellant guilty of contempt and thereupon sentenced him to one year imprisonment with hard labour or a fine of N30,000.00.
It is against this ruling that the appellant has appealed to this court. The appellant through his counsel filed his brief of argument. The plaintiff/respondent was served with the notice of appeal and other court processes but he did not file his respondent’s brief. As a result of this, the appellant filed a motion for an order of this court that the appeal be heard without the respondent’s brief and the motion was duly served on the respondent.
On 3/4/2001, when the motion came up for hearing, the plaintiff/respondent was also not in court and the motion was granted on that day.
In the appellant’s brief of argument, three issues were identified for determination of the court and they are:-
“1. Whether the contempt proceedings were competent in view of the tendency of an appeal and a motion of stay of execution.
2. Whether the service of the motion for committal and the hearing notice were proper.
3. Whether the sentence of one year imprisonment for contempt of court is not unconstitutional and void.”
The judgment in this case was delivered on 27/7/99 and on 29/7/99 the appellant filed a notice of appeal and also a motion for stay of execution and the plaintiff/respondent was duly served with these processes because in paragraph 6 of his affidavit in support of the motion for committal. he stated as follows:-
“Paragraph 6: That I am informed by my solicitor, Chief S. M. Angor and I verily believe him that filing and service of a motion for stay and notice of appeal does not operate as stay of execution of a court of law.”
This clearly shows that the appellant, a judgment debtor was held liable for contempt when he has filed a notice of appeal and a motion for stay of execution. This is very wrong because he can not be held liable for contempt that he had not obeyed the order he is appealing against and which he wants to be stayed and he can not be stopped from exercising his constitutional right of appeal. It is settled that the trial court and the appellate court have jurisdiction to grant a stay of execution by an unsuccessful party pending the determination of his appeal and this has not been treated as a disobedience to the judgment that has been appealed against. See Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt. 412) 129.Another vital and fundamental question raised in this appeal is whether there was a proper service of the motion and hearing notice in this matter, which is quasi criminal. The relevant applicable rules in this matter are Order 9 rule 13 of the Judgment (Enforcement) Rules of the Sheriff and Civil Process Law and Order 42 of Cross River State High Court (Civil Procedure) Rules and they state asÂ Â follows:-
Order 9 rule 13 of Judgment (Enforcement) Rules of Sheriff and Civil Process Act reads:-
“13(1) When an order enforceable by committal under section 72 of the Act has been made the register shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the…………………….B…………………….
order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.
(2) If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as a judgment summons.”
Order 42 of Cross River State High Court (Civil Procedure) Rules stipulates:-
“2. (1) An application for an order of committal shall be made to the court by motion on notice supported by an affidavit and shall state the grounds of the application.
(2) The notice of motion, affidavit and ground shall be served personally on the person sought to be committed:
Provided that the court may dispense with personal service where the justice of the case so demands.”
At page 20 of the record of proceedings, the affidavit of service shows that the appellant was served through his wife. This no doubt runs counter to the provisions of Order 9 Rule 13 of the Judgment (Enforcement) Rules, Sheriff and Civil Process Law and Order 42 rule 2(2) of the Cross River State High Court (Civil Procedure) Rules which clearly and unequivocally prescribed that service must be personal.
This is not all because the affidavit of service of the hearing notice at page 21 of the records shows that the hearing notice was served on the appellant through his son.
The vital and fundamental nature of service of a court process on an adverse party cannot be over emphasized, as it confers jurisdiction on the court to entertain the matter and failure to serve the process on the party vitiate subsequent proceeding and render them void and gives a right to the party who was served to have the order or judgment subsequently made set aside:-
See Alhaji J. A. Odutola v. Inspector Kayode (1994) 2 SCNJ 21, (1994) 2 NWLR (Pt. 324) 1; National Bank of Nigeria Ltd. v. Guthrie Nigeria Ltd. &Â Â Anor. (1993) 4 SCNJ 1, (1993) 3 NWLR (Pt. 284) 643; Leedo Presidential Motel Ltd. v. B.O.N. Ltd. (1998) 10 NWLR (Pt. 570) 353 SC.
It has been shown that the appellant was not in court when the trial court made the order against him because he was not aware of the proceedings and that there was not a proper service of the court processes on him. This no doubt vitiates the proceedings and renders the whole thing a nullity.
As to the question whether the sentence of one year imprisonment for contempt of court is not unconstitutional and void, section 133(9) of the Criminal Code of Cross River State Cap. 31 prescribes that any person who commits any act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken is guilty of a simple offence and liable to imprisonment for three months. Section 36(8) of the Constitution of the Federal Republic of Nigeria stipulates that no penalty shall be imposed for a criminal offence heavier than that in force at the time that the offence was committed.
It can be seen that the maximum penalty prescribed by section 133(9) of Criminal Code of Cross River State is three months while the learned trial Judge sentenced the appellant to a term of one year imprisonment which is clearly in total disregard of section 36(8) of the 1999 Constitution which is supreme law of our country. This sentence is therefore unlawful and can not therefore be allowed to stand.
In the final result, I am fully of the view that the appeal is meritorious and ought to be allowed and it is accordingly allowed by me.
I set aside the judgment of Uke J., delivered on 22/11/99 and strike out the contempt proceedings.
The appellant is entitled to costs which I assess and fix at the sum of N3,500.00.
EDOZIE, J.C.A.: The draft of the lead judgment of my learned brother Opene, JCA was made available to me before now. I agree with his reasoning and conclusion for allowing the appeal.
The appeal turns on the execution of the judgment of the court below. It is manifest that after judgment was entered against the appellant, he lodged on appeal thereto and by a motion prayed the court below for a stay of execution pending the determination of the appeal. Until that motion is disposed of, the judgment creditor cannot set in motion the machinery for the execution of the judgment in any form. It was therefore wrong for the court below to have entertained the respondent’s motion for committal without a decision one way or the other of the application for stay of execution and worse still for the motion for committal to have been heard without personal service thereof on the appellant as required by Order 42 of the Cross River State High Court (Civil Procedure) Rules. It is trite law that failure to serve process where service of process is required…………………….C…………………….
is a fundamental vice and a person affected by an order made without service is entitled ex debito justitiae to have the order set aside as a nullity: See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 at 556; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Scott-Emuakpor v. Ukavbe (1975) NSCC 435; Food and Commodities Production Group Ltd. v. Aremu (1990) 2 NWLR (Pt. 134) at 563; Obimonure v. Erinosho (1966) 1 All NLR 250 at 252; Leedo Presidential Motel v. B.O.N Limited (998) 10 NWLR (Pt. 570) 353 at 391.
It is also the law that in an appropriate case where it is sought to commit the judgment debtor for disobedience of court order, Order 9 rule 13 of the Judgment (Enforcement) Rules of the Sheriff and Civil Process Act prescribes the procedure to be followed. Under the rule, the registrar of court, on the application of the judgment creditor issues a copy of the order of the court endorsed with a motion in Form 48 and this is served on the judgment debtor and if he fails to obey the order, the registrar on the application of the judgment creditor issues a notice in Form 49 not less than two clear days after service of the endorsed copy of the order and this is also served on the judgment debtor. It is after these procedural requirements have been complied with that a motion for committal can be brought against the contemnor.
These requirements were not complied with in the instant case. Another glaring and serious error in the judgment appealed against is that the appellant was sentenced to one year imprisonment for contempt of court, a term which is far in excess of 3 months imprisonment prescribed by section 133(9) of the Criminal Code of Cross River State Cap. 31. This is in violation of section 36(8) of the 1999 Constitution which provides that no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
For the foregoing reasons and those more elaborately discussed in the lead judgment, I allow the appeal with all the consequential orders in the lead judgment.
EKPE, J.C.A.: I agree.
Matthew Ojua & Co-.For Appellant
S.M. Anjor & Associates-For Respondent