A challenge to the proceedings on grounds of incompetence or lack of jurisdiction falls within the exceptions to the general rule that a contemnor will not be heard in subsequent proceedings until he purges himself of his contempt. See: First African Trust Bank Ltd & Anor. V. Ezegbu & Anor. (1992) 9 NWLR (Pt. 264) 132 @ 150 FG; G; Abeke Vs Odunsi (2013) LPELR-20640 (SC); Obeya V. First Bank of Nig. Plc (2010) LPELR-4666 (C/A)
The contempt for which the appellants are being proceeded against was committed outside the precincts of the Court. The procedure laid out for dealing with that species of contempt is rather elaborate and allows the contemnor a right to challenge the proceedings for lack of jurisdiction See: Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539. This is what the appellants have done in this appeal.
When regard is had to forms 48 & 49 of the Judgment (Enforcement) Rules of the Sheriffs and Civil Process Act, same in itself is not sufficient to compel attendance of the contemnors, especially where there is nothing on the face of the forms commanding personal attendance.
To compel attendance of the alleged contemnors from the beginning of the proceeding, when no offence of contempt has been proved, is inconsistent with the provision of the Constitution. For all intents and purposes, it is obvious that the learned trial Judge, also the Court below have failed to keep within the rules as it was held in the case of Dikibo v. Ibuluya (2007) All FWLR (Pt. 383) 1666 @ 168. Also in Fawehinmi V. State (1990) 3 NWLR (Pt. 148) 42 it was held that where a man's liberty is at stake every requirement of the law must be strictly complied with.
The order of the Court directing the personal attendance of the appellants is an interference with their liberty as provided under Section 35 of the Constitution 1999 (as amended) when there is no law or rules of Court expressly authorizing the infringement.
See the decision of this Court in Omoijahe V. Umoru and Ors (1999) 8 NWLR (pt. 614) 178 @ 190.
In First African Trust Bank Limited and Anor v. Basil O. Ezegbu and Anor (supra) at 151 Karibi – Whyte, JSC, spoke so incisively, about these exceptions thus:
"In my respectful opinion, the rule precluding hearing a contemnor before the Court is founded on principle. To every rule there are always exceptions. The exceptions to the general rule that a party in contempt may not be heard as distilled from the authorities referred to (supra) are:
(1) Where the party is seeking for leave to appeal against the order of which he is in contempt; (2) Where the opposition to the order is one on the ground of lack of jurisdiction; (3) Where the contemnor is seeking to be heard in defence of the Order and (4) Where it can be shown that there were certain procedural irregularities in making of the orders which irregularities make the order unsustainable."
There are however a few exceptions to the general rule. The principle does not apply to applications by an alleged contemnor challenging the order on the ground of lack of jurisdiction by the Court. There is a clear distinction between the right to be heard in defence of the order made and the right to enforce yet an order whilst in disobedience. The right to be heard is clearly different from the right to enforce a right whilst still in disobedience. See, First African Trust Bank Limited and Anor v. Basil O. Ezegbu and Anor [1992] 9 NWLR (pt. 264) 132; (1993) 6 SCNJ 122..."
In First African Trust Bank Limited and Anor v. Basil O. Ezegbu and Anor (supra) at 151 Karibi – Whyte, JSC, spoke so incisively, about these exceptions thus:
"In my respectful opinion, the rule precluding hearing a contemnor before the Court is founded on principle. To every rule there are always exceptions. The exceptions to the general rule that a party in contempt may not be heard as distilled from the authorities referred to (supra) are:
(1) Where the party is seeking for leave to appeal against the order of which he is in contempt; (2) Where the opposition to the order is one on the ground of lack of jurisdiction; (3) Where the contemnor is seeking to be heard in defence of the Order and (4) Where it can be shown that there were certain procedural irregularities in making of the orders which irregularities make the order unsustainable."
Indeed, as this Court held in Abeke v. Odunsi and Anor (2013) LPELR – 20640 (SC) 17; B – G:
"However, generally, the common-law principle which precludes persons in disobedience of the order of the Court from being heard in respect of the matters in which they stand in disobedience has been settled.
In Hadkinson v. Hadkinson (1952) 2 All ER 567, 573, Denning, LJ, opined thus:
'I need hardly say that it is very rare for this Court to refuse to hear counsel for an appellant. No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard for the simple reason that, if he is not heard, his right of appeal is valueless...the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but if his disobedience is such that so long as it continues, it impedes the cause of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.'
Now, although the general rule in England has been stated in Halsbury's Laws of England (4th Edition) Vol, 9, para. 206 as follows: "the general rule is that a party in contempt, that is a party against whom an order for committal has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt," the basic position of the law in Nigeria, on the fundamental nature of jurisdiction and fair hearing in the adjudicatory system/process had long been settled in long line of cases, Madukolu v. Nkemdilim [1962] 2 SCNLR 341; Okafor v. A- G Anambra State (1991) 6 NWLR (pt 200) 659, 678; Afro Continental v. Co-operative Association of Professionals Inc. [2003] 5 NWLR (pt.813) 303, 317 – 318; Group Danone v. Voltic Nig. Ltd [2008] 7 NWLR (pt. 1087) 668, 667.
It is even settled that contempt or committal proceeding no doubt is quasi-criminal proceeding which has the likelihood of affecting the liberty of a citizen. Against this background therefore, the person setting up contempt proceedings must therefore ensure that every step that is necessary is taken and the entire requirements are complied with strictly, Opobiyi v. Muniru [2008] All FWLR (pt. 408) 380; Nya v Edem [2005] All FWLR (pt. 242) 576; F.C.D.A. v. Koripamo – Agary (2010) 14 NWLR (pt.1213) 377, 391-392; Aina v. Jinadu (1992) 4 NWLR (pt.233) 90; Ogaji v. Igonikon – Digbani [2010] 10 NWLR (pt.1202) 298, 306; and Uhunwangbo v. Okojie [1989] 5 NWLR (pt.122) 471, 487.
Since contempt outside the precincts of the Court is quasi-criminal in nature, every procedural step (the vega modus prosequiandl must ex necessitate) be followed strictly and strictly complied with. Accordingly, the appellants ought to have been arrested, charged before the Court and full trial conducted and the offence proved beyond reasonable doubt and if found guilty, punished in accordance with the Law,Omoijahe v. Umoru(2000) FWLR (pt. 29) 2401, 2406; Ogboni v. Ojah (1989) 1 NWLR (pt.100) 725; Alesinloye v. Oyediran (1999) 12 NWLR (pt.63) 491; Ojeme & Ors. v. Momodu II (1995) Chief Tom Ikimi v. Godwin Omamuli (1995) 3 NWLR (pt.387) 335; Military Governor of Kwara State v. Rufus Afolabi (1991) 6 NWLR (pt.196) 212; Oyeyinka v. Osague [1994] 2 NWLR (pt.328) 612; Awobukun v. Adeyemi (1968) NWLR 299; Gloria Nya v. Madam Eme Bassey Edem (2005) 4 NWLR (pt.973) 345 at 367 -369; Deduwa and Ors v. The State (1975) 1 All NLR (pt. 1) 1; Boyo v. Attorney General Mid-West State (1971) 1 ALL NLR 342, 352.