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Attorney-General, Anambra State v. Okeke

ATTORNEY GENERAL ANAMBRA STATE

JOHN IKE NWOKOLO

DR. MICHAEL IFEORAH

ANTHONY ANAEKE

PATRICK OBIAKOR

CHIEF AUGUSTINE EZENWA

( Chairman Abagana Constitutional Review Committee )

V

EPHRAIM OKEKE

CHIEF AJULUCHUKWU UCHEAGBOSO

NWAFOR OKEKE

ORAGWU UNCHA AKUECHIE

SAMUEL UDENWA

( For themselves and all other members of Akpu Abagana Village Community, Abagana)

SUPREME COURT OF NIGERIA

SYLVESTGER UMARU ONU, JSC ( Presided ) ANTHONY IKECHUKWU IGUH, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC ( Read the Lead Judgment )

SC.102/1997

MONDAY, 27TH MAY, 2002

APPEAL - Appellate court - Person not a party to proceedings - Whether appellate court will exercise jurisdiction thereon

APPEAL - Court of Appeal - Committal order made thereby after overruling preliminary objection sustained by the trial court without hearing parties on merit on the committal application - Impropriety of

APPEAL - Court of Appeal - Extent of jurisdiction of under section 16 of

Court of Appeal Act

APPEAL - Court of Appeal - General proposition that Court of Appeal can after striking out a matter for being improperly brought proceed to determine the matter on its merit - Whether Okotie-Eboh’s case is in support of such approach

APPEAL - Court of Appeal - Powers of pursuant to section 16 of the Court of Appeal Act - Whether includes what the trial court could not have done

APPEAL - Grounds of appeal and issues for determination - Need to relate to relevant decisions of court from which appeal lies - Effect of failure to relate thereto

APPEAL - Judgment of trial court - Party not directly or indirectly affected thereby - Appeal filed by same in respect of - Effect

APPEAL - Notice of Appeal - Party wrongly named in an appeal - Whether necessary to be served with notice

APPEAL - Parties to an appeal - Whether properly named as parties What determines

APPEAL - Subsisting order of trial court - Party discharged from proceedings therefrom - Appeal filed against same - Impropriety of

APPEAL - Supreme court - Improper party in the Court of Appeal - When can appeal thereto

CONTEMPT - Form 48 - Actual date of service of - Importance of

CONTEMPT - Judgment debtor - Committal of to prison - Condition precedent thereto - Order IX Rule 13 Judgment (Enforcement) Rules Cap 118 laws of Eastern Nigeria

COURT - Appellate court - Person not a party to proceedings - When the appellate court will exercise jurisdiction thereon

COURT - Court of Appeal - Committal order made thereby after overruling preliminary objection sustained by the trial court without hearing parties on merit on the committal application - Impropriety of

COURT - Court of Appeal - Extent of jurisdiction of under section 16 of

Court of Appeal Act

COURT - Court of Appeal - General proposition that same can after striking out a matter for being improperly brought proceed to determine the matter on its merit - Whether Okotie-Eboh’s case is in support of

COURT - Court of Appeal - Jurisdiction thereof to determine committal application on merit - Whether the Okotie Eboh’s case is authority for

COURT - Court of Appeal - Power of pursuant to section 16 of the Court of Appeal Act - Whether includes what the trial court could not have done

COURT - Interlocutory matters - Pronouncement which would prejudice fair hearing of substantive suit - Need for court to refrain from making while dealing with interlocutory matters

COURT - Judgment of trial court - Party not directly or indirectly affected thereby - Appeal filed by same in respect of - Effect

COURT - Jurisdiction of court - Whether confers by acquiescence of party when court is incompetent

COURT - Proceedings of court - Records and their contents - Whether the court will take judicial notice of

COURT - Process of court - Proof of service afforded by court’s record in the proceeding - Whether the court can ignore

COURT - Supreme court - Improper party in the Court of Appeal - When can appeal thereto

COURT - Trial court - Subsisting order of - Party discharged from proceedings therefrom - Appeal filed against - Impropriety of

EVIDENCE - Affidavit - Affidavit of service - Purpose of

EVIDENCE - Affidavit - Affidavit evidence - Where not denied by respondent -  Effect

EVIDENCE - Proof of Service - Certificate of service in terms of Order 7 rule 16 of the High Court Rules of Anambra State - Whether exclusive means thereof

EVIDENCE - Proof of service - Proof of service afforded by court’s record in the proceeding - Whether the court can ignore

JUDGMENT AND ORDERS - Judgment debtor - Committal of to prison Condition precedent thereto - Order IX Rule 13 Judgment ( Enforcement) Rules Cap 118 laws of Eastern Nigeria

JUDGMENT AND ORDERS - Subsisting order of trial court - Party discharged from proceedings therefrom - Appeal filed against Impropriety of

JURISDICTION - Acquiescence of parties - Whether confers jurisdiction on court when incompetent

JURISDICTION - Appellate court - Person not a party to proceedings When the appellate court will exercise jurisdiction thereon

JURISDICTION - Court of Appeal - Jurisdiction thereof to determine committal application on merit - Whether the case of Okotie Eboh is authority for

PARTIES - Improper party in the Court of Appeal  - When can appeal to the Supreme Court

PARTIES - Parties to an appeal - Whether properly named - What determines

PRACTICE AND PROCEDURE - Affidavit - Affidavit of service - Purpose of

PRACTICE AND PROCEDURE - Form 48 - Actual date of service of Importance of

PRACTICE AND PROCEDURE - Interlocutory matters - Pronouncement which would prejudice fair hearing of substantive suit - Need for court to refrain from making same while dealing with interlocutory matters

PRACTICE AND PROCEDURE - Judgment debtor - Committal of to prison - Condition precedent thereto - Order IX Rule 13  Judgment ( Enforcement) Rules Cap 118 laws of Eastern Nigeria

PRACTICE AND PROCEDURE - Proceedings of court - Records and their contents - Whether the court will take judicial notice of

PRACTICE AND PROCEDURE - Process of court - Form 49 - When the Registrar may issue

PRACTICE AND PROCEDURE - Service of process of court - Proof of Service - Certificate of service in terms of order 7 rule 16 of the High Court Rules of Anambra State - Whether exclusive means to prove service

PRACTICE AND PROCEDURE - Service of process of court - Proof of service afforded by court’s record in the proceedings - Whether the court can ignore same

STATUTE - Section 16, Court of Appeal Act - Extent of jurisdiction of Court of Appeal thereunder

WORDS AND PHRASES - ‘Affidavit of service of a court process’ - Meaning of

Issues:

1.            Should an order of committal have been made against the appellants who were not parties to the committal proceedings?

2.            Whether the appeal of 2nd and 5th appellants is competent not being proper parties to the appeal in the court below

3.            Whether the Court of Appeal (taken as the trial court pursuant to section 16 of the Court of Appeal Act, 1976) lacked the jurisdiction ab initio to convict and sentence any party for contempt without first disposing of the issue of jurisdiction raised in the substantive suit.

Facts:

The plaintiffs herein on 16th December 1993 filed an application for committal of the appellants for their disobedience of the order of interim injunction delivered in the plaintiff’s favour against them. On 20th December 1993 . The names of the 2nd and 5th appellants were struck out by the court on application by the plaintiff’s counsel for being unable to effect service on them. The appellants subsequently filed notice of preliminary objection to the committal application on the ground of non-compliance with the provision of Order 1 rule 14 of Judgment (Enforcement) Rules.

The trial court sustained the objection and struck out the application for committal. The respondents appealed to the Court of Appeal. The Court of Appeal held that there was compliance with Order 9 rule 13(2) of the Judgment (Enforcement) Rules. The Court of Appeal, exercising its power under section 16 of the Court of Appeal Act which provides inter alia thus; “the Court of Appeal generally shall have full jurisdiction over the proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing,” purportedly re-heard the appeal on records and ordered committal of the 2 nd, 3rd, 4th, 5th and 6th respondents. Aggrieved, the appellants appealed to the Supreme Court.