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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ENUGU JUDICIAL DIVISION HOLDEN AT ENUGU BEFORE HIS LORDSHIP, HON. JUSTICE A. IBRAHIM DATE: 1st February, 2016 SUIT NO.: NICN/EN/52/2012 BETWEEN: DAYAN MORE CHUDE=========CLAIMANT/JUDMENT CREDITOR AND 1. INDEPENDENT NATIONAL ELCTORAL COMMISSION (INEC)=====DEFENDANT/ JUDGMENT DEBTOR 2. PROF. ATTAHIRU JEGA CHAIRMAN INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. AUGUSTA CHINWE OGAKWU (MRS) SECRETARY/HEAD OF ADMINISTRATION INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)====PARTIES CITED/ CONTEMNORS REPRESENTATION: Ifeanyichukwu Osuagwu Esq. appeared for the Judgment Creditor. A. Mogbor Jnr appeared with C. Abugu Esq. for the Judgment Debtor/Parties Cited. RULING This matter is a post-judgment proceeding brought by the Claimant/Judgment Creditor praying this Honourable Court for an order for Committal to prison of the parties cited as contemnors, for having neglected/disobeyed the order of this Court made on the 16th day of September, 2013 contained in the Judgment of the Court enjoining the Contemnors to: 1. To REINSTATE the Claimant into the service IMMEDIATELY, as staff (of INEC), with all the attendant rights and privileges of his Grade Level and with no loss of Seniority. 2. AND an order to IMMEDIATELY RELEASE and PAY the Claimant his emoluments/allowances from 1st January, 2010. The application required the cited Contemnors to show cause why committal order should not be made. The application is supported by an affidavit of 10 paragraphs deposed to by the Claimant/Judgment Creditor himself. There are two annexures attached to the said affidavit, marked Exhibits A and B. There is also a written address in support of the application. Upon being served with the processes of the Claimant/Judgment Creditor, the Judgment Debtor and Cited Contemnors on the 15th day of December, 2014 filed a Counter Affidavit of 11 paragraphs deposed to by Chukwuma Edeh a counsel in the law firm of Mogboh & Co., the Solicitors to the Judgment Debtors and parties cited as Contemnors. The said Counter Affidavit was accompanied with a Written Address in opposition to the application. The learned counsel to the parties adopted their respective written addresses. In his written address the learned counsel for the Judgment Creditor formulated and argued a single issue for the Court’s determination as follows: Whether the Applicant is entitled to the Committal Orders sought in enforcement of the judgment entered in his favour? Arguing the said issue learned Senior Counsel for the Judgment Creditor stated that it is trite law that unless and until an order of a court of competent jurisdiction is set aside, it remains valid and enforceable and must be obeyed. He referred to the case of Dr IMORO KUBOR & ANOR vs HON. SERIAKE DICKSON & ORS (2013) 26 WRN 15 at 64L 10-15. He stated further that by the decision in ADEYEMI CANDIDO JOHNSON VS MRS ESTHER EDIGIN (1990) 1 NWLR (Pt. 129) 659 at 668, Contempt of Court is any act or conduct which interferes with the course of justice and tends to bring the authority and administration of law into disrespect………..The aim of the law of contempt is thus to protect the dignity of the Court from any conduct that tends to obstruct or interfere with the administration of justice. Learned Senior Counsel continued that power of the Courts is inherent and indeed preserved under Section 6 of our nascent Constitution 1999 (as amended), and a sine qua non for the smooth and proper administration of justice, which extols the need for its preservation and enforcement. Furthermore, that in SUNDAY APE vs DISU OLOMO (2011) 19 WRN 28 at 51-52, the Court in interpreting Section 72 of the Sheriffs and Civil Process Act held that: Section 72 of the Sheriffs and Civil Process Act provides as follows: 72. If any person refuses or neglects to comply with an order made against him, other than for payment of money, the Court instead of dealing with him as judgment debtor guilty of 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. This section states the order a Court will make where a person refuses to comply with an order of the Court or disobey the Court. He continued that Exhibit A of the Affidavit filed in support of this application confirms the existence of the judgment orders put before the Honourable Court for enforcement, while paragraphs 4 and 5 thereof show that Parties Cited/Contemnors as the directive authority of the Judgment Debtor Commission have refused, failed or neglected to comply with the said expressed and unequivocal orders of Court. While Exhibit B confirms the precondition for service of Form 48 had since 4/3/2014 been satisfied as a precursor to this application. Paragraph 9 further portrays the peripheral austere predicaments now being imposed on the Applicant as the direct consequences of the Contemnors disobedience, constituting a continuing serious indent or denial on the right to life of the Applicant and all those put under his/her care as members of the family in terms of their subsistence. On his own part, the learned counsel for the Judgment Debtor and Cited Contemnors in his written address in opposition to the application formulated one issue for determination in the following words, i.e., Whether the claimant/judgment creditor complied with the requirement of the law in bringing this application? In arguing same learned counsel stated that Order IX Rule 13(1) of the Judgment Enforcement Rules made pursuant to section 94 of the Sheriffs and Civil Process Act provides that: 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 option of paying their value or in the nature of an injunction, at the time when the 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. He stated further that Order IX Rule 5(1) of the Judgment Enforcement Rules provides that: A judgment summons shall be served personally in accordance with the rules for personal service of an ordinary summons issued from the court from which the judgment summons is issued. He then continued that the claimant/judgment creditor on the face of this application is asking for an order of attachment to be made against the parties cited as contemnors. The application also seems to be asking this Honourable Court to commit the parties to prison for alleged disobedience to the court’s order. Be that as it may, the application is accompanied with some documents marked as exhibits. The documents include proof of service of Form 48 which ordinarily should precede the application. The Form 48 was served on one Hassan Adam. It was not served on any of the parties cited as contemnors. That Order IX Rule 13(1) of the Judgment Enforcement Rules provides that the Form 48 should be served in like manner as a judgment summons. In Order IX Rule 5(1) the Judgment Enforcement Rules provides that a judgment summons shall be personally served. The word used on Order IX Rule 5(1) is “shall”. In KALLAMU vs GURU THE MAKE PURSUANT TO ANT TO SECTION 94 of (2006) 16 NWLR (Pt. 347)493 at 571, it was held that: It is no longer in doubt that the word “shall” when used in a statute or rule of court, makes it mandatory that the rule must be obeyed…In other words, generally the term “shall” is a word of command and denotes obligation and thus gives no room to discretion. It imposes a duty. Furthermore, that Order 29 Rule 2(1) and (2) of the Rules of this Honourable Court provides that: An application for an order of committal shall be made to the Court by motion on notice supported by an affidavit, stating the grounds of the application. The notice of motion, affidavit and grounds shall be served personally on the person or any principal officer of the body sought to be committed but the Court may dispense with personal service where the justice of the case demands. Learned counsel continued that in the instant application there is no indication that this Court had dispensed with personal service of the Form 48 on the parties cited as contemnors before same was served on Hassan Adamu. He submitted that service of the Form 48 on which this application is predicated on Hassan Adamu is not personal service on the parties cited as contemnors in this application. The alleged service was done in utter contravention of Order IX Rule 13(1) of the Judgment Enforcement Rules and Order 29 Rule 2(1) and (2) of the Rules of this Honourable Court. According to counsel it follows that if the Form 48 did not satisfy the conditions precedent to activate the issuance of Form 49 the instant application is practically without foundation and cannot stand. Therefore, counsel urged the court to either dismiss the application or strike it out for being incompetent. The Judgment Creditor did not file any reply on points of law. I have carefully considered the processes filed, as well as the arguments canvassed by parties in this matter. The matter is essentially a post-judgment application seeking to commit the parties cited as contemnors in accordance with the provisions of Order IX Rule 13(1) of the Judgment Enforcement Rules and Order 29 Rule 2(1)(2) of the National Industrial Court Rules, 2007, as amended. The issue for determination in my humble view is whether or not the Judgment Creditor has satisfied the conditions for the grant of order of Committal? It is the submission of the learned senior counsel for the judgment creditor that the conditions for the grant of the order of committal have been satisfied. He relied on the provisions of Order 29 Rule 2 of the Rules of this Honourable Court as well as the decisions in Dr IMORO KUBOR & ANOR vs HON. SERIAKE DICKSON & ORS (2013) (supra) and ADEYEMI CANDIDO JOHNSON VS MRS ESTHER EDIGIN (1990) (supra). He stressed that the parties cited as contemnors being the principal officers of the Judgment Debtor, INEC, at the material time, they are bound to be committed to prison for their failure to implement the judgment of the Honourable Court. However, on his own part the learned counsel for the Judgment Debtor and parties cited for contempt argued that the Judgment Creditor has not done enough to merit the grant of the order for committal. This is because the provisions of Order IX Rule 13(1) of the Judgment Enforcement Rules and Order 29 Rule 2(1) and (2) of the National Industrial Court Rules, 2007, as amended, have not been complied with in terms of personal service of Form 48 on the parties cited as Contemnors. Having considered the arguments and submissions of both parties, as well as the paragraphs of the supporting affidavit and counter affidavit, the question that arises is whether indeed the parties cited as contemnors have been duly served the required processes, i.e. Form 48? The Applicant deposed as follows in paragraphs 4, 5, 6 and 7 of the supporting affidavit: 4. That on 23/9/2013 I duly served a copy of the judgment on the Judgment Debtor Commission of which the Parties Cited/Contemnors are presently the principal officers in the management, control and administration of the Commission. 5. That several contacts were thereafter made on due representations from me and my Counsel for the due compliance of the judgment orders without any positive reaction thereto up till now. 6. That on 4/3/2014 I caused and served a notice in Form 48 on the said principal officers, through the Registry of this Court as shown in the Affidavit herein marked Exhibit B. 7. That there is no application pending anywhere for any order interposing in anyway on the said judgment orders. On their own part, the Parties cited/Contemnors deposed through Chukwuma Edeh Esq., a counsel in the law firm of their learned counsel, in paragraphs 3, 4, 5, 6, 7, 8 and 9 as follows: 3. That paragraphs 4, 5, 6, 7 and 8 of the affidavit accompanying the application is not a reflection of the truth. 4. That parties cited as Contemnors were never served with any copy of the judgment of this Honourable Court in respect of which this application is brought. 5. That the 2nd and 3rd parties cited as Contemnors were not parties to the suit NO. NICN/EN/53/2012 that gave rise to the judgment upon which this application is predicated. 6. That the third party cited as Contemnors (sic) while discussing this application informed me on telephone on 10 December, 2014, at about 3 pm and I verily believed her that at no time did the claimant/judgment creditor make any representation to the parties cited as contemnors in respect of the judgment of this Honourable Court. 7. That it is not true that Form 48 was served on the parties cited as Contemnors in this application as Exhibit (B) attached to the application clearly shows that it was served on one Hassan Adamu. 8. That the 2nd and 3rd parties cited as Contemnors were not parties to the suit giving rise to the judgment in respect of which this application is brought. 9. That the claimant/judgment creditor has not served the 1st party cited as Contemnors (sic) with Form 48 which is a condition precedent for this application. A careful look at the facts deposed to above shows that the parties cited as Contemnors, namely, Professor Attahiru Jega Chairman, INEC and Agusta Chinwe Ogakwu (Mrs), Secretary/Head of Administration, INEC, have not been stated as having been duly served with the processes of Court on this matter. The affidavit of service attached to the processes of the Applicant shows that Form 48 was meant for Prof. Attahiru M. Jega was served personally on one Hassan Adam (HEO(L) and not on Prof Attahiru Jega himself. Furthermore, the process meant for Mrs Ogakwu was not even exhibited as having been served on her directly or through any other person. This I so find. The critical point is that going by the position of the law in relation to proceedings for contempt, personal service is a sine qua non. In his book titled “Contempt of Court, Third Edition” published by Oxford University Press, (2000) C.J. Miller, at page 649 stated this as follows: The general rule is that personal service of a copy of the judgment or order is required. (Ord. 45, r 7(2). See further Halsbury, vol. 9(1), para. 467). In the case of a judgment or order against a corporate body enforcement will be possibly against an individual director or officer only if he has been personally served. Here I must point out that this view is only of persuasive value. However, even the Rules of this Honourable Court have emphasized the need for personal service of the processes in contempt proceedings. The provisions of Order 29 rule 2 sub-rules (1) and (2) of the National Industrial Court Rules, 2007, state that: 2.(1). An application for an order of committal shall be made to the Court by motion on notice supported by an affidavit, stating the grounds of the application. (2) The notice of motion, affidavit and grounds shall be served personally on the person or any principal officer of the body sought to be committed but the Court may dispense with personal service where the justice of the case so demands. Hence the point must be made that except the requirement of personal service has been dispensed with, a party to be committed must be personally served with the court’s processes. In the present case, the learned counsel for the Applicant at the point of the adoption of the processes of court simply referred to the provision of Order 7 rule 8 of the Rules of this Court to counter the argument that the Contemnors were not duly and properly served with the service of the processes on Mr Hassan Adamu. However, the argument of the learned counsel was misconceived. Personal service must be effected in such a manner as to ensure that the Court is left in doubt that the alleged contemnor is aware of the processes of Court. This becomes more germane as what is at stake is both the honour and