IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. HAMZA - - - - JUDGE

DATE: 30TH APRIL, 2024                       

SUIT NO: NICN/PHC/4M/2019

BETWEEN:

1. IRON AND STEE SENIOR STAFF

    ASSOCIATION OF NIGERIA

2. COMRADE CHRISTOPHER ELEMUWA               CLAIMANTS       /RESPONDENTS   

3. COMRADE CHARLES EZE ORUKWUWU                

4. COMRADE HENRY CHIKA OLOCHA

                                                           

AND

 

1. FITTER SENIOR STAFF ASSOCIATION 

    OF NIGERIA

2. MR. PRINCEWILL NNA

    (RIVERS STATE SECRETARY OF FITTER

     SENIOR STAFF ASSOCIATION OF NIGERIA)                     DEFENDANTS/

3. NWAOYIBO STANLEY IKENNA                                             APPLICANTS

4. MR. CHIJIOKE ISAIAH

5. NIGERIA WELDERS ASSOCIATION (NWA)

6. NIGERIA NATIONAL FITTERS ASSOCIATION      

 

Representation

Parties absent

Faith Ashu for the Claimants/Respondents

Chief N. B. Nwakiri for the Defendants/Applicants

 

RULING

Introduction

1.   This is a Notice of Preliminary Objection dated the 22nd day of October, 2019 and filed on the 23rd day of October, 2019 by the 1st and 2nd Defendants/Respondents. It is brought pursuant to Order 17 Rules 1 of the National Industrial Court (Civil Procedure) Rules, 2017 and the inherent powers and jurisdiction of this Court praying whereof for the following:

i.    An Order of the Court dismissing Suit No: NICN/PHC/4M/2019 for being incompetent, premature, improperly constituted and instituted or in the alternative: An order striking out same.

ii.   And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.

      The grounds upon which the objection is predicated are as follows:

a)     That the Applicants/Respondents in the present application in NICN/PHC/4M/2019 are totally different from the parties in Suit No: NICN/PHC/01/2015.

b)    That the parties sought to be committed are totally different parties who are not parties in Suit No: NICN/PHC/01/2015 as to be bound by the judgment of the said suit.

c)     That there is no leave of this Honourable Court sought and obtained by the Applicants in Suit No: NICN/PHC/4M/2019 to enforce judgment in Suit No: NICN/PHC/01/2015 against parties who are not parties in that suit.

d)    That the Applicants did not serve on the Respondents the requisite Forms 48 and 49 being Notice of Consequence of Disobedience to Court Judgment (Form 48) and Notice to Show Cause why Order of Committal should not be made (Forms 49) which are pre-requisite for committal proceedings.

2.   The Preliminary Objection is supported by a 13 paragraphs Affidavit deposed to by one Princewill Nna, Secretary, Rivers State Chapter of the Fitters Senior Staff Association of Nigeria and is accompanied by a Written Address dated 22nd day of October, 2019.

Submissions of the Respondents/Applicants

3. Learned Counsel to the Applicants/Respondents formulated a lone issue for determination to wit:

         “Whether Suit No: NICN/PHC/4M/2019 in all intents and proposes is not incompetent in the circumstance of this application.”

He submitted interalia that it is trite that only parties to a suit are bound by the judgment of Court in the said suit and nothing more. The law is that any person who is not a party to a Suit cannot be held liable for the outcome of the Judgment in the said Suit. This is because a party cannot be held liable for the outcome of Court proceedings when he/she was not given opportunity to be heard or present his own case. Similarly, where Judgment is made against the whole world, a party cannot be held for contempt except the party or person in question is brought to the knowledge of the said judgment or order of the Honourable Court. See Order 9 Rules 13 (1) & (2) of the Judgment Enforcement Rules: YEKINI ABBAS VS SOLOMON (2001) FWLR (pt. 67) 847.

4.   He submitted further that the Law over contempt proceeding is trite on the need to comply with rules and procedures governing contempt or committal proceedings as prescribed to be adopted in the case of any disobedience to Court’s order or judgment; and non-compliance to the said procedure remain fatal to contempt proceedings. See YEKINI ABBAS VS SOLOMON (Supra). He argued that failure of the Applicants to serve on the parties sought to be committed the required requisite Form 48 and 49 in line with Order 9 Rule 13 of the Judgment Enforcement Procedure Rules renders the application for Committal and any proceedings thereto or that will be conducted incurably detective and incompetent. See YEKINI ABBAS VS SOLOMON (Supra).

5.   Counsel submitted also on the issue of 1st and 2nd Respondents/Applicants to the Preliminary Objection writing letter as alleged by the Applicants to the Committal Motion, the Law is that a party is not in contempt of Court for doing an act where there is no Court Order restraining such act. See ADENUGA VS ODUMERU (2001) FWLR (pt. 37) 1056. Moreover, assuming but not conceding that the Applicants have any Judgment in their favour to which their application can be based or to be enforced against a party who was not a party to the suit, the Applicant will first bring an application for leave of Court to enforce such Order or Judgment against the said parties. See Order 15 Rule 12(3) and (4) Rules of the Supreme Court, 1965.

6.   He contended that as a preliminary point that since committal proceedings touch and concerns personal liberty and freedom of a person, the special procedure prescribed by the applicable rules must be strictly followed as any slightest wrongful step taken shall lead or vitiate the entire proceedings. See ADENIYI VS OGBE (1998) 9 NWLR (pt. 507) 650. Perhaps, the procedure to commit a corporate entity is not followed by the Applicants in this matter. See UNIPORT NIG PLC VS EDO STATE BOARD OF INTERNAL REVENUE (2001) 10 NWLR (pt. 720) 167. He finally urge the Court to dismiss the application in its totality with substantial cost.

Submissions of the Applicants/Respondents  

7.   Learned Counsel to the Applicants/Respondents submitted two (2) issues for determination:

 

                    i.            Whether based on the provision of Section 254f(1) & (2) of the Constitution of the Federal Republic of Nigeria (1999) as amended, this Court cannot commit the Respondents to prison.

                  ii.            Whether this Court can act on a defective Affidavit.

      On Issue No. 1, Counsel submitted that based on the provisions of Section 254f (1) of the Constitution of the Federal republic of Nigeria, 1999 as amended, this Honourable Court has the jurisdiction to commit them for contempt, anyone who disobeys the Orders of the Court. Section 254f(1) CERN, provides:

“Subject to the provision of any Act of the National Assembly, the President of the National Industrial Court make Rules for regulating the practice and procedure of the National Industrial Court. For the purpose of exercising its criminal jurisdiction, the provisions of the Criminal Code, Pinal Code, Criminal Procedure Act, Criminal Procedure Code or Evidence Act shall apply.”

8.   He argued that the Constitution did not in any way mention that Form 48 and 49 which is as provided for in the Judgment Enforcement Rules, made pursuant to Sheriff and Civil Processes Act. This provisions aviates the need to serve the contemptnor with Form 48 and 49. For the Constitution under Section 1(1) & (3) provides as follows:

“This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria and (3) that no any other Law is inconsistent with the provision of this Constitution, this Constitution shall prevail.”

      Therefore, there is no need to resort to Sheriffs and Civil Processes Act, when the Constitution, the grand norm has made express provisions. It is the President of the National Industrial Court, acting on this provision that the rules regulating contempt procedure was made.

9.   He submitted that it was pursuant to Section 254(1) Order 63 of the NICN Civil Procedure Rules 2017 was made. The Constitution has given room for how the judgment of the Court can be enforced. He posited that the Supreme Court in the case of ACTION CONGRESS VS INEC (2007) 12 NWLR (pt. 1048) 220 – Per Aderemi JSC held:

“by the canons of statutory interpretation which includes the Constitution, a Judge’s duty which is even a command in him is to interpret the clear and unambiguous words according to their ordinary, national and grammatical meanings and he must not add to or remove any words therefrom.”

The well-established cannon of interpretation requires that if the intention of the framers of a Statute or Constitution must be couching the provision and it is there the intention is entrenched.

      There is nothing like ambiguity. The Applicant can be punished for contempt without recourse to judgment enforcement rules; But, purely and basically on the rules of the Court.

10. Counsel submitted also that the Judgment of this Court is quite explicit in Suit No: NICN/PHC/01/2015. Thus, from reliefs 6 and 8 herein reproduced “an Order of Injunction restraining the Defendants, their agents, representatives, and assignees, however described and constituted from collecting check-off dues from companies in Rivers State and beyond and the Court has granted same on page nine of the Judgment. He argued that 1st and 2nd Defendants are privies and agents of the 1st Defendant in Suit No: NICN/PHC/01/2015. He urged the Court to commit them for contempt.

11. On issue No. 2, Counsel submitted that this Court cannot action a defective affidavit. The reason being that paragraph 9 of the affidavit clearly offends Section 115(2) of the Evidence Act. The paragraph provides:

“That no Defendant in Suit No: NICN/PHC/01/2015 meaning that parties sought to committed for contempt of Judgment of Court in Suit No: NICN/PHC/01/2015 delivered on 7th day of October, 2015 are entirely different people.”

He contended that the paragraph is a prayer and the Supreme Court in the case of BAMAIYI VS STATE (2001) 8 NWLR (pt. 715) 270 per Uwaifo JSC held:

“Prayers, objections and legal arguments are matters that may be pressed by Counsel in Court in oral testimony or in affidavit evidence; while conclusion should not be drawn by witnesses but left for the Court to reach. Similarly, the other defect is paragraph 13 in which also contrary to the Oath Act i.e. for not containing the last paragraph for any affidavit. Hence, there is no valid affidavit or facts in support of the Motion. See NNB VS IBW ENTERPRISES NIG LTD (1998) 6 NWLR (pt. 544) 466; LONESTAR DRILLING NIG LTD VS TRIVENI ENGINEERING & INDUSTRIES & ORS (Citation not supplied).

He urged the Court to dismiss the application for lacking in merit with primitive cost of N1,000,000.00 (One Million Naira)

Court’s Decision:

12. I have painstakingly considered the submissions of both counsel and the authorities relied on this application. I have equally read and analyzed both supporting and Counter Affidavits including their Written Address and the various annexures. Consequently, this Court has adopted the lone issue as rightly distilled by the Applicants as the thrust of action. Other auxiliary issues may be subsumed in the determination of this issue to wit:

                                             

“Whether Suit No: NICN/PHC/4M/2019 in all intents and purposes is competent or otherwise.”

 

      The facts of the application is not much in doubt in the sense that there is a subsisting Judgment of this Court of which the Applicants were alleged to have violated. Pursuant to aforementioned, the Respondents filed this suit.

 

13. Instructively therefore, the word contempt literally means the act or state of despising. As a legal term it denotes a conduct that defers the authority, honour, prestige or dignity of a Court or legislature. Thus, due to the fact that such a despicable conduct invariably interferes with administration of justice – see OKO-OSI VS AKINDELE (2013) LPELR – 20353 (CA). Similarly, Black Law Dictionary, 8th Edition, 2004 at page 336, contempt is defined as a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolvent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body.

 

14. If that is settled, then the question that called for determination is: How contempt proceeding is being initiated? While the Respondents have taken a step towards achieving their ultimate objection, the Applicants faulted the said procedure. Infact, a contempt proceeding is meant to call one in disobedience to Court Judgment to order and to protect the integrity and sanctity of the Court and to ensure effective administration of justice – See ALECHENA VS A.G BORNO STATE (2011) LPELR – 3981 (CA); NWANKA VS ADIKAMKWU (2015) ALL FWLR (pt. 814) 2064; EGBEBU VSIGP & ORS (2016) LPELR 40224 (CA). Meanwhile, the long and short of it is that contempt proceeding is in the nature of criminal proceedings as rightly argued by the Learned Respondents’ Counsel. There is a school of thought who insist that being a criminal matter, there should be a formal charge if the contempt was committed ex-facie crrie and if in the face of the Court, the alleged contemnor in the nature of criminal allegations shall be given the opportunity to show cause why he should not be convicted and punished for contempt. See MANDARA VS ALI & ANOR (2020) LPELR 51460 (CA). Per Abandaga JCA.

 

15. It is within the contemplation of the Respondent that the only way to commence the Committal Proceeding is in accordance with the Rules of this Court which position is not very well clear with the Applicant. However, in the case of ADILKANKWU VS NWAWKA (2015) ALL FWLR (PT. 804) 2064 the Court spelt out the ways of commencing and the category of proceedings, as:

There is not only one way of commencing contempt proceedings in the category of contempt being prosecuted determines the manner of commencement of the proceedings as follows:

a)     Where the contempt consist solely of disobedience of an Order with Court, the only acceptable procedure for commencing the proceeding is as provided in Section 72 of the Sheriff and Civil Process Act and Order 9 Rule 13 of the Judgment Enforcement Rules i.e. by issuance of Form 48 and 49.

b)    Where the contempt consist of disobedience of a Court process or obstruction of an official of Court in carrying out of his lawful duties, it is commenced by the procedure provided in Court Rules of each jurisdiction.

c)     Where it is contempt committed in the immediate view and presence of the Court such as insulting language or acts of violence such as obstructing or interrupting the due and orderly course of proceedings i.e. in facie curie, it is dealt with by the Court similarly.

d)    Where the insulting language or acts of violence occurs outside the view of the Court ex-facie curie, the proceedings may begin  by the presentation of criminal charges against the offender by the office of the Attorney General under the provision of the Criminal or Pinal Code – ONOWU VS OGBOKO & ORS (2016) LPELR 40074 (CA).

 

16. I seems to agree with the Respondents that this Court by virtue of Order 63 of the Rules of this Court is enriched with the process of commencing contempt proceedings. Thus, Rule 2(1) provides:

“An application for an Order of Committal may be made to the Court by any of the parties in an action before the Court by Motion on Notice which shall be:

a)     Supported by an affidavit and shall state the grounds of the application.

b)    Accompanied with a copy of the Judgment or Order in direction of the Court which is the subject of the contempt proceeding.

c)     Written Address giving sufficient and compelling reasons for necessitating the contempt proceedings.

 

It suffice saying that the Respondents here duly complied with this wise. What is expected of the Applicants in the circumstance is to comply with Rule 5(1) i.e.

“Upon receipt of the summons, the party charged for contempt shall appear before the Court, be sworn on Oath as state in party’s defence or may surrender to the charge as contained in the summons.”

 

     

      Instead they filed this Preliminary Objection on the ground that there was neither Form 48 nor Form 49 was issued on them as supposed to be the common practice. Basically, the applicable law, practice and procedure must be followed and strictly too. This is because contempt of Court in an offence. It is quasi criminal. It is duly proved, a contemnor may be sent to person for it. Therefore, the standard and invariably too is proof beyond reasonable doubt. Again, punishment for contempt where it is so deservingly to be punished, is regulated by relevant/requisite provisions of the Sheriff and Civil Process Act, 1990. Per Oredola JCA in the case of EPUNDU VS OFODEME & ORS (2014) LPELR – 29072 (CA).

 

17. It should be noted that the requirement under Order 63 of the Rules of this Court 2017 is just but a method for the Court to ascertain whether or not there is a contempt and once that is established the other aspect of the contempt proceedings ought to be resort to or adopted as stipulated in the Sheriff and Civil Process Act including Form 48 and Form 49. Therefore, for the Respondents to posit that this Court is not bound by that is an understatement. The reason being that there is no how Rules of Court can override the provision of an Act of the National Assembly.

 

18. The Respondents have contended that even the affidavit of the Applicants is defective for containing legal argument, conclusion and the like. Similarly, the last paragraph as contend in any standard affidavit was omitted. However, the position of the law where an affidavit is defective only is Form, Section 13 of the Oath Act provides as follows:

 

“It shall be lawful for any Commissioner of Oath or any other person authorized by the Act to administer an Oath, take and receive the declaration of any person voluntarily making same before him in the Form set out in the first schedule to this Act.”

 

      By virtue therefore, of Section 84 and due compliance with Section 90(5) Evidence Act, the affidavit in support of the Applicant’s application is not defective and it cannot be discountenanced. See ATTORNEY GENERAL OF THE FEDERATION VS BAYAND (2000) LPELR 104009 (CA).

 

19. In the case of AFAROTIMI VS FEDERAL REPUBLIC OF NIGERIA (2023) LPELR – 56007, the Court of Appeal where it was held despite the heading and omission in some paragraphs of the affidavit, it is still an affidavit which can be used by a Court of Law as there is clear evidence that it was deposed to before the appropriate person in law. See Order 58 Rule 16, NICN (Civil Procedure) Rules, 2017 where it is provided that the Court may permit an affidavit to be used where it is defective in Form only and not in substance, if the Court is satisfied that it has been sworn before duly authorized.

 

20. In the final analysis, it is my considered opinion that the application as duly constituted is premature at this stage. While is ideal for the Applicants is to respond to the Motion so as to pave way for the contempt proceeding properly. Consequently, the application deserves but a befitting burial. Accordingly, it is hereby struck out.

 

      Ruling is entered accordingly.

 

                                         

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Hon. Justice M. A. Hamza

Judge