Interpretation of section 72 of the Sheriffs and Civil Process Act and Order IX Rule 13(1)and(2)of the Judgment (Enforcement) Rules as to whether it is necessary for court to issue Forms 48 and 49 before it can proceed against a contemnor in a contem...
SECTION 72 OF THE SHERIFFS AND CIVIL PROCESS ACT AND ORDER IX RULE 13(1)(2) OF THE JUDGMENT RULES:
Interpretation of section 72 of the Sheriffs and Civil Process Act and Order IX Rule 13(1)and(2)of the Judgment (Enforcement) Rules as to whether it is necessary for court to issue Forms 48 and 49 before it can proceed against a contemnor in a contempt proceedings
"It was rightly argued by the learned Appellant's counsel that on the face of the Respondent's application, it was not brought pursuant to any rules of court and from the court's records none was relied upon in, moving the application before the trial court.
The trial court therefore ought to have had recourse to the applicable law on enforcement of judgments and the Rules made there under, that is, section 72 of the sheriffs and civil Process Act and Order IX Rule 13(1)and(2)of the Judgment (Enforcement) Rules.
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 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 than until he has been imprisoned for such time or until he has paid such fine as the court directs."
While order 42 Rule 2(1), (2) and Rule 4(3) of the Ondo State High Court (Civil procedure) Rules as applicable in Ekiti State, headed: COMMITTAL FOR CONTEMPT OF COURT provides as follows:
"2.(1)An application for an order of committal shall be -made to the Court by motion on notice supported by an affidavit, and shall state the grounds of the application.
(2) The Notice of Motion, affidavit and grounds shall be served personally on the person sought to be committed. Provided that the court may dispense with personal service where the justice of the case so demands."
4(3) Except with the leave of the court hearing an application for an order or committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under Rule 2."
Order IX Rule 13(1) and (2) of the Judgment (Enforcement) Rules provide as follows-
"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 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.
(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 a judgment summons."
Section 72 and Order IX Rule 13(1) and (2) above made the issuance of Forms 48 and 49 mandatory before one can proceed against a contemnor in a contempt proceedings. In an application for committal it is imperative that the prescribed steps have to be followed.
Order IX Rule 13 provides that an order enforceable by committal under Section 72 has been made, the registrar shall issue a copy of the endorsed Notice in Form 48. The procedure insists on the endorsement of the order on Form 48 which contains the penalty for disobedience or failure to obey the order. This is so, to give the defendant the opportunity to obey or retrace his steps. In the present case from the records, there is nothing to show that the Respondent was issued and served the notice of consequences of disobedience to the order complained of on the Appellant."
Per UWA, J.C.Ain APE V. OLOMO. (2010) JELR 33275 (CA)