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  • 2016-02-25
  • CA/IL/43/2014
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REGISTERED TRUSTEES OF NIGERIAN ASSOCIATION OF MEDICAL HERBALIST V GAMBARI

1. REGISTERED TRUSTEES OF NIGERIAN
ASSOCIATION OF MEDICAL HERBALIST
2. ALHAJI ADESINA OLORO
(President, Kwara State Branch of Nigeria
Association of Medical Herbalist)
V
ALHAJI MOMO NUHU GAMBARI
COURT OF APPEAL
(ILORIN DIVISION)


MOHAMMED LADAN TSAMIYA JCA (Presided and Read
the Lead Judgment)
CHIDI NWAOMA UWA JCA
UCHECHUKWU ONYEMENAM JCA

CA/IL/43/2014
THURSDAY, 25 FEBRUARY 2016

PRACTICE AND PROCEDURE - Contempt cases - Nature of - Forms 48 and 49 - Mandatoriness of personal service of - Purport of - Failure to - Effect of - Judgment (Enforcement) Rules, Order 9, rule 13(1) and (2) considered
PRACTICE AND PROCEDURE - Contempt proceedings - Notice of - Whether needless to serve on grounds that same where served in an earlier action commenced but subsequently withdrawn
PRACTICE AND PROCEDURE - Contempt proceedings - Procedure for - Compliance with - Mandatoriness of Kwara State High Court (Civil Procedure) Rules, Order 47, rule 8 considered
STATUTE - Judgment (Enforcement) Rules, Order 9, rule 13(1) and (2) - Contempt cases - Nature of - Forms 48 and 49
- Mandatoriness of personal service of - Purport of - Failure to - Effect of
STATUTE - Kwara State High Court (Civil Procedure) Rules, Order 47, rule 8 - Contempt proceedings - Procedure for
- Compliance with - Mandatoriness of

Issue:
Whether the failure on the part of the appellants to reissue served Forms 48 and 49 on the respondent before the commencement of the present committal proceedings robs the trial court of its jurisdiction notwithstanding the fact that earlier service of same was done, coupled with the fact that the respondent was present at the time the judgment/order was delivered.

Facts:
The appellants filed an action in the High Court of Kwara State seeking declaratory and injunctive orders to the effect that; the respondent had ceased to be the Chief Medical Herbalist (Obasegun) of Kwara State branch of the Nigerian Association of Medical Herbalists, it is only the Kwara State branch of the association that is constitutionally qualified to appoint or remove a member of the branch as Chief Medical Herbalist for Kwara State and orders prohibiting the 1st defendant from parading himself to be addressed as such.

The trial court granted the reliefs sought by the appellants but despite the judgment, the appellants alleged that the respondent flouted the court’s order by causing himself to be addressed as the obasegun of Kwara State branch of Nigeria Association of Medical Herbalist and
erected two signposts to that effect. The appellants therefore commenced committal proceedings for contempt against the respondent, but following the pleas by the respondent and subsequent upon his removing the signposts, the committal action was withdrawn. The appellants alleged that the respondent again flouted the order and they filed another application for committal proceedings.

The trial court dismissed the application and being dissatisfied, the appellant appealed to the Court of Appeal contending that the trial court erred by dismissing the application on grounds of failure to serve forms 48 and 49 on the respondent.
In determining the appeal, the Court of Appeal considered the following statutes:
Sheriffs and Civil Process Act, section 72: If any person refuses or neglect to comply with an order made against him, other than for payment of money, the court instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph (f) of section 66 of this Act, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order, then until he has been imprisoned for such time or until he has paid such fine as the court directs.
Judgment (Enforcement) Rules, Order 9, rule 13(1) and (2): 13(1):When an order enforceable by committal under section 72 of the Act has been made, the registrar 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 order is drawn up, and in any 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 judgment summons.
Judgment (Enforcement) Rules, Order 47, rule (1) and (2):
1(1) The power of the court to punish for contempt of court may be exercised by an order of committal.
1(2) An order of committal may be made by the court where contempt of court:
(a) ...
(b) Is committed in the face of the court, or consist of disobedience to an order of the court or a breach of an undertaking to the court.
2. An application for an order of committal shall be made to the court by motion on notice stating the grounds of the application supported by an affidavit and a written address.