SUIT NO. FCT/HC/CV/3730/13 BETWEEN: MR. IKECHUKWU OKOROAFOR - PLAINTIFF/APPLICANT AND MS. REGINA INENKPELEMI ADOGA - DEFENDANT/RESPONDENT

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE THE HONOURABLE JUSTICE A. B. MOHAMMED ON THE 29 TH OF JULY, SUIT NO. FCT/HC/CV/3730/13 BETWEEN: MR. IKECHUKWU OKOROAFOR - PLAINTIFF/APPLICANT AND MS. REGINA INENKPELEMI ADOGA - DEFENDANT/RESPONDENT Parties: Appearances: Plaintiff in Court and represented himself. Justin Chuwang Esq, for the Defendant. RULING By a Motion on Notice No. M/2854/13 dated 7 th January, 2013, filed on the 11 th of January, 2013, and brought pursuant to Order 41 Rules 1 and 2 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, Section 287 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 72 of the Sheriffs and Civil Process Act, Cap. 551, Laws of the Federal Capital Territory and under the inherent jurisdiction of the Court, the Plaintiff/Applicant sought for the following orders: (i) An order committing the Defendant/Respondent to Kuje Prisons, Kuje District, Abuja, FCT for contempt in not obeying an order of this Court dated 19/11/12 and made in this action of which the 1

2 Respondent had notice of the said order, commanding the said Respondent, inter alia, to permit the Applicant to have visitation right every week to Miss Barbara Nwabata Okoroafor (D.o.b 10/10/09). (ii) And for an order that the costs occasioned by this application and of any order made hereon be paid by the Respondent. The grounds upon which the application was brought were: (a) The noncompliance by the Respondent with the clear terms and directions contained in the order of 19/11/12 has created a substantial risk that the course of justice in the current proceedings before this Court will have been impeded. (b) The Respondent s conduct of wilfully and intentionally failing to comply with the terms and directions of the order of 19/11/12 has prejudged the issues in this case and was intended to scandalise the Honourable Court. (c) Breach of undertaking by Paul E. N. Ajudua, learned Counsel to the Respondent, made to henceforth comply with the order of 19/11/12 was made on behalf of the Respondent to this Court on 5/12/12, in these proceedings in Defendant s presence in Court. The application was supported by a thirty one (31) paragraph Affidavit deposed to by the Plaintiff/Applicant himself. The pertinent paragraphs of the Affidavit were: 3. That on the 19 th day of November, 2012, the Honourable Court in this action ordered as follows:- (a) That the Plaintiff shall have visitation right every week, alternating on Saturday from am to 6.00 pm in one 2

3 week and on Sunday from am to 6.00 pm in the next week, until the final determination of the substantive suit. (b) The Respondent in whose custody Baby N is shall ensure that she regularly attends school at the Springhall (Cradle of Crayon) School, Maitama, Abuja, unfailingly pending the determination of the case. 4. That I am fully aware that the said orders of 19/11/12 have not been observed, obeyed or complied with by Respondent till date. 5. That upon obtaining the order of 19/11/12, I endorsed a copy of Form 48 and Form 49, respectively from the Court registry to be served personally on the Respondent. 6. The Defendant/Respondent was on 22/11/12 duly served with the order dated 19/11/12, which order was properly endorsed with Form 48 as appears by the affidavit of the bailiff filed herein on 22/11/ A copy of the Certificate of Service of the order of 19/11/12 with endorsed Form 48 sworn to by the Bailiff of Court on Thursday, 22/11/12, on the Respondent, is hown to me and marked Exhibit A. 8. That I had to endorse Form 48 behind the Order of 19/11/12 to call the attention of the Respondent to issues ordered, and the need to do the acts in the said order, and that the result of the disobedience will be to subject her to penal consequences. 9. That I am informed by my lead Counsel, Ogugua O. Ojeh Esq and I verily believe him that after the initial service of the aforementioned court process on Defendant, he further wrote Counsel to Defendant, attaching a copy of the said order of 3

4 19/11/12 and sought his assistance to Defendant s compliance with the directions contained therein. A copy of my Solicitor s letter dated 22/11/12 and DHL Express Carriage Receipt are shown to me and marked Exhibits B1 and B2, respectively. 10. That I was equally compelled to speak on the telephone with a senior relative of Defendant, namely Mrs. Helen Adoga, on Thursday 22/11/12 to seek her assistance to implore Defendant to simply obey the terms and directions of the order of court of 19/11/12, on Saturday 24/11/12, commencing at 10 am. 11. That I also made personal telephone calls to Defendant ( ) early on Saturday 24/11/12, and at about (08:07 am) I sent a text message from my mobile urging compliance with the order of court of 19/11/12. A copy of the sms text message from my telephone is shown to me and marked Exhibit C. 12. That my friend and colleague Mr. Andy Nwanze, accompanied me as a witness to Defendant s residence on Saturday 24/11/12, and at am, we called the Defendant severally, but she ignored us but instead got one Mr. Paul Ajudua to rain abuses on Mr. Nwanze. 13. That in spite of all my efforts, the Defendant still denied me access to visit the child on Saturday, 24/11/12 commencing from 10 am at her residence, otherwise known as and called Block SB1, Flat 15, Nigerian National Petroleum Corporation (NNPC) Quarters, Garki, Abuja. 14. That I know as a fact that Defendant intentionally intended to interfere with the administration of justice as well as the order of 19/11/12, as she later sent me a response text message at 10:24 4

5 am on Saturday 24/11/2012, after waiting for several minutes in her main door entrance, that she could not release the child as she was already in the class. A copy of the Defendant s sms text message from her mobile telephone ( ) is shown to me and marked Exhibit D. 15. That I believe that nothing less than incarceration or fine will persuade Defendant to comply with the order of Court of 19/11/12, to ensure unhindered visitation and avoid violations in order to restore the authority and dignity of this Court. 16. That at the last Court sitting in this matter on 5/12/12, I made an oral complaint of non-compliance with the valid order of 19/11/12 against Defendant who was also present in Court. 17. That consequent upon my complaint, learned Counsel to Defendant subsequently made an undertaking in open Court to henceforth comply with the terms and directions of the order of 19/11/12 which this Honourable Court accepted. 18. That consequent upon this undertaking by learned Counsel, on Saturday 8/12/12 at 8:00 am, I again made several telephone calls to the Defendant to intimate her of my impending visit at am to her residence, but she did not answer her telephone line on this occasion. 19. Thereafter I later sent (3) three sms messages at 8:13 am on 8/12/12, informing the Defendant that I would be in her residence located at Flat 15, Block SB1, Nigerian National Petroleum Corporation (NNPC) Quaretrs, Area 11, Garki, Abuja, but Defendant did not respond to my sms messages on this occasion. 5

6 20. That at exactly 10:00 am on Saturday 8/12/12, in the company of my witness, Mr. Andy Nwanze, I knocked at Defendant s door and yet after waiting for 30 minutes, Defendant unfortunately still refused to allw me access to the child. 21. Attached to this Affidavit is my photograph in front of Defendant s residence main front door entrance Flat 15, upon her refusal, is hereby shown to me and marked Exhibit E. 22. That Defendant has now gone a step further to intentionally disparage the Honourable Court by instructing one of her gatemen, namely one Mr Sunny that henceforth I should clear with the said gateman before I approach her residence main front entrance of Flat 15, Block SB1, NNPC Quarters, Garki. 23. That notwithstanding that the time limited by the order for me to commence to have visitation right has long since passed, the Defendant/Respondent has failed and neglected to carry out the order. 24. That is the Defendant is not forced to comply with this order of 19/11/12, I will suffer irreparable hardship, including further loss of relationship with the child. 25. That Defendant s intentional non-compliance with the order of 19/11/12 has defeated, impaired, impeded and prejudiced my rights as a person with parental responsibility to child. 26. That I have previously filed a request with the Court for substituted service of Court process against the Respondent who has made personal service difficult, so that Defendant be sanctioned and held in contempt. 6

7 27. That I know as a fact that nothing but sanctions from this Honourable Court can persuade Defendant to comply with the order of 19/11/ That I know for a fact that Defendant who has no assets may soon escape to an undisclosed location with child in order not to comply with the order of 19/11/ That Defendant is very manipulative and will use all known diversionary methods to prejudice me and attempt to foreclose any relationship I have with the child, if she is not forced to comply with the valid order of 19/11/12. In his adopted Written Address in support of the application, the Plaintiff/Applicant, Ikechukwu Okoroafor Esq, raised a sole issue for determination which was whether the Applicant is entitled to the reliefs sought in this application. Learned Counsel drew the attention of the Court to the fact that this application was brought by an aggrieved Plaintiff requesting the Court to exercise its coercive powers to set aside the Respondent s acts done in disobedience of its order of 19/11/12. He explained that the rationale for this course of action is to ensure that as an officer of the Court, there is enthronement of the rule of law rather than resort to self-help to ensure visitation rights and regular school attendance for the child in this case. He referred the Court to the cases of F.C.D.A. v KORIPAMO-AGARY (2010) 14 NWLR (Pt. 1213) 389; A-G, EKITI STATE v DARAMDA (2003) 10 NWLR (Pt. 827) 104; and GOVERNOR, LAGOS STATE v OJUKWU (1986) 1 NWLR (Pt. 18) 621. Learned Counsel also referred to Section 72 of the Sheriffs and Civil Process Act, Cap. 551, Laws of FCT and the Judgment Enforcement Rules applicable to Abuja, FCT which provide that Form 48 which contains copy of the Court Order should be served on the Respondent and where the Respondent fails to obey, 7

8 Form 49 should be issued for committal. He referred to OGUNLANA v DADA (2010) 1 NWLR (Pt. 1176) 560. He submitted that the Court is also empowered under Section 287(1) of the 1999 Constitution to enforce its orders and ensure that its decisions are obeyed. He argued that this application arose as a result of the Respondent s disobedience to the Court order of 19/11/12 and the antics of the Respondent in filing multiple applications in attempts not to obey the order of Court. He cited DANCHEVSKY v DANCHEVSKY (1974) 3 All ER 934. He urged the Court to ignore the multiple applications of the Respondent until the Respondent purges herself of the contempt since the order of Court is valid and subsisting. He also referred to B.C.C. PLC v AGER (2010) 9 NWLR (Pt. 1199) 293. The Plaintiff submitted that the ruling and order of Court of 19/11/12 fully encapsulates what happened in this case from the submissions of Counsel on both sides, and submitted that the conduct of the Respondent in prejudging the issues herein is injurious to the smooth running of administration of justice. He cited ORIJA v AKOGUN (2009) 10 NWLR (Pt. 1150) 452. He contended that under Order 41 Rule 3 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 the Court has the inherent power to issue bench warrant for the arrest of the Respondent who has refused to comply with the order of 19/11/12. He submitted that this power is exercisable without any finding of contempt first being made. He urged the Court to impose sanction on the Respondent by committing her to prison and/or imposing punitive fine which the Respondent should pay before the next adjourned date or make the Respondent give security for good behaviour. The Plaintiff pointed out that on the last adjourned the Court gave a short period of suspension when it extracted an undertaking from Counsel for the Respondent, Mr. Ajudua that he will get the Respondent to comply, but the 8

9 Respondent breached the Counsel s undertaking. The Plaintiff pointed out that to ensure compliance, the Order of 19/11/12, the Motion on Notice and Affidavit and the grounds for committal for contempt were served on the Respondent personally as well as Form 48. He added that the service was confirmed by the Bailiff through the Certificate of Service which is annexed to the supporting affidavit as Exhibit A. He submitted that he had therefore fulfilled the requirement of Order 46 Rule 5 of the Rules of this Court. He argued that the affidavit evidence has shown that the Respondent is guilty of contempt by reason of the breach of the order of 19/11/12 and sufficient facts have been adduced that she had notice of the said order and her Counsel even acknowledged on 5/12/12 that a copy of the said order was personally served on the Respondent, subsequent to which Form 49 and a copy of the Motion on Notice was personally served on her. He referred the Court to AFRIBANK (NIG.) PLC v YELWA (2011) 12 NWLR (Pt. 1261) 291. It was the submission of the Plaintiff that in order to sustain a conviction against the Respondent he has established that (i) the terms of the order of 19/11/12 are clear and unambiguous; (ii) The Respondent had proper notice of the terms of the order few days before Applicant came to her residence to commence the visitation right as ordered but was prevented from doing so by the Respondent. Citing ONAGORUWA v ADENIYI (1993) 5 NWLR (Pt. 293) 350 at 339 paras. C-D; ORIJA v AKOGUN (supra); and UMEAKUANA v UMEAKUANA (2009) 3 NWLR (Pt. 1129) 601, the Plaintiff argued the words shall in paragraph 1 and unfailingly in paragraph 2 of the Order of 19/11/12 makes compliance with the terms and directions of the order mandatory. He added that the time in paragraph 1 of the order begins to run from am each alternate weekend, and cited ACTION CONGRESS v JANG (2009) 4 NWLR (Pt. 1132) 481. He also cited OGAJI v IGONIKAN-DIGBANI (2010) 10 NWLR (Pt. 9

10 1202) 293 and Black s Law Dictionary (7 th Edition) where visitation right was defined as privilege of a non-custodial parent of spending time with child who is living with a custodial parent. The Plaintiff argued that the sms text from the Defendant/Respondent to the Plaintiff/Applicant at 10:24 am in which she stated that she was in class, minutes after the Court appointed time is a flagrant breach of the Court order made in bad faith and this is the same on several occasions, particularly on 1/12/12, 8/12/12 and all through Christmas holidays and New Year festivities when the Respondent denied the Plaintiff the visitation rights ordered by the Court. The Plaintiff submitted that the order of the Court was delivered since 19/11/12 with directives to allow the Applicant visitation rights to the child and mandatory school attendance for the child, but the Respondent did not comply with the directives and has remained defiant of the order on visitation rights of the Applicant. He argued that justice is only complete after the execution of the order of the Court and the sooner that is done the better for the Rule of law and cited OGUNLANA v DADA (2010) 1 NWLR (Pt. 1176) 563. He submitted that the complaint of the Plaintiff is that of civil contempt against the Respondent and urged the Court to grant the application with cost of N200, against the Respondent. In opposition to the application, the Defendant/Respondent filed a 5 paragraph Counter Affidavit sworn to by Smart Maisamari, a litigation secretary in the law firm of Messrs Abimiku & Co., the Solicitors to the Defendant/Respondent. The pertinent paragraphs of the Counter Affidavit were: 3. That the Defendant/Respondent informed me on the 20 th day of May, 2013 at 3:00 pm at our chambers suite B2 Bensima Plaza, 10

11 Maitama, Abuja of the facts I depose to hereunder which facts I verily believe to be true as follows: i. That the deposition contained in paragraphs 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29 and 30 are completely false to the knowledge of the Plaintiff/Applicant and were made with intent to mislead the Court into believing that the orders of the Court were being disobeyed. ii. That on the 24 th day of November, 2012, the Plaintiff/Applicant arrived the former residence of the Defendant/Respondent as early as 8:00 am on the premise that he had come to exercise his visitation rights. iii. That when she pointed out to him that his visitation rights does not start until 10:00 am and that in any event the baby is still sleeping and that he should leave and return by 10:00 am to enable her get the baby ready when his visitation rights will commence, he refused and started threatening her that he will get her imprisoned for disobedience of court order. iv. That the Plaintiff/Applicant left the premises around 8:30 am and she expected that he will return by 10:00 am but after waiting in the house up till 12:00 noon without seeing him, she left home to attend to her other engagement. v. That on the 8 th day of December, 2012 the Plaintiff/Applicant woke her from sleep as early as 6:00 am by his telephone call to tell her he was coming to exercise his visitation rights and she advised him not to come earlier 11

12 than 10:00 am, but by 8:00 am he was already by her door banging it so loudly that it attracted the attention of all her neighbours. vi. That when she stood her ground and told him that he had no visitation rights to exercise until 10:00 am, he left in anger and never returned. vii. That since then the Plaintiff/Applicant came only once sometimes in early February, 2013 and by mutual consent the Plaintiff/Applicant and the Defendant/Respondent agreed for the baby to be taken and handed over to the Plaintiff/Applicant at Southern Fries Restaurant, Area 11, Garki, Abuja to exercise his visitation rights. This arrangement was to avoid the unruly behaviour of the Applicant which attracted series of complaints from the Defendant s neighbours during the two previous attempts at visitation. viii. That the Plaintiff/Applicant and the Defendant/respondent met at the address referred to in sub-paragraph vii hereof wherein the Plaintiff/Applicant spent time with Baby N and thereafter left. ix. That since the last visit, the Plaintiff/Applicant travelled abroad for medical attention and has not been around to exercise his visitation rights until the last but one adjournment when he appeared in Court in April, x. That sometimes in March, 2013, the landlord of the Defendant s premises at Block SB1, Flat 15, NNPC Quarters, Area 11, Garki, Abuja had to ask the Defendant/Respondent 12

13 to vacate the premises following complaint over unruly behaviour of the Plaintiff/Applicant whenever he came in purported exercise of his visitation rights. xi. That the Defendant/Respondent had to relocate to CITEC Estate, Road F, Block F10, Jabi District, Abuja. xii. That since the return of the Plaintiff/Applicant he has not come forward to exercise his visitation rights. xiii. That the Defendant/Respondent is a law abiding citizen, has never disobeyed the orders of this Honourable Court and is willing to obey the orders of Court. xiv. That this application is brought in bad faith and it is a calculated attempt to induce the Court to punish the Defendant/Respondent for no reasonable cause. 4. That it is in the interest of justice to refuse this application and to go into the merit of the substantive claim before the Court. In his adopted Written Address in opposition to the application, learned Counsel for the Defendant/Respondent, John Mathew Esq, raised a sole issue for determination, namely whether the Applicant has established the breach of the orders of this Honourable Court by the Defendant. Counsel submitted that contempt of court, being a deliberate disobedience of court order, is a quasi-criminal proceeding whose standard of proof is the same as in criminal proceeding which is beyond reasonable doubt. He cited in support EZEJI v IKE (1997) 2 NWLR (Pt. 486) 206, as well as Section 135(1) of the Evidence Act. Counsel argued that the orders of Court alleged to have been breached allowed for visitation rights on the appointed dates to commence as from 10:00 am and not otherwise. Counsel pointed out that even by the admission of the Plaintiff/Applicant in paragraphs 11 and 18 of the supporting affidavit 13

14 his attempts at exercising his visitation rights were not in consonance with the clear orders he is seeking to enforce. He argued that the conflicting depositions in paragraphs 11 and 18 of the supporting affidavit makes the evidence of the Plaintiff doubtful and any such doubt must be resolved in favour of the Defendant/Respondent. He added that the Defendant/Respondent cannot be held in contempt when all she did was to insist on adherence to the terms of the orders. It was the submission of the learned Counsel for the Defendant/Respondent that from the affidavit evidence before the Court, the Defendant has not breached the orders of this Court and the Applicant who has the duty to prove so beyond reasonable doubt has failed in that regard. He urged the Court to refuse the application. In his reply on point of law, the Plaintiff pointed out that the Counter- Affidavit of the Defendant has not motion number and that its paragraph 3(i) contains extraneous matter by way of legal conclusion and should be struck out. From the submissions of the parties, the issue is as stated by the learned Counsel for the Defendant/Respondent, namely whether the Applicant has established breach of the order of this Court of 19/11/12 by the Defendant/Applicant. The Plaintiff s application is seeking for an order committing the Defendant to Kuje Prisons for being in contempt for disobeying the interlocutory order of this Court dated 19 th November, 2012 which granted the Plaintiff visitation rights to Baby N who is in custody of the Defendant, every week alternating on Saturday from 10:00 am to 6:00 pm in one week and on Sunday from 10:00 am to 6:00 pm in the next week until the final determination of the substantive suit. 14

15 The law is settled to the effect that there are two types of contempt. The first is that committed in the face of the Court, while the second is that committed outside the Court. The first type of contempt is triable summarily by the Court, while in the case of the second a proper charge and a plea is necessary and the accused must be given fair hearing with respect to the contempt allegation against him. See: OMOIJAHE v UMORU (1999) LPELR- 2645(SC) or (1999) 8 NWLR (Pt. 614) 178, per Katsina-Alu, JSC (as he then was) at page 10, paras. F-G. In the instant case, the Plaintiff seeks that the Defendant be committed to prison for alleged contempt committed outside the Court. By nature, the offence of contempt is quasi-criminal, the proof of which is by Section 132(1) of the Evidence Act, 2011, beyond reasonable doubt. See: ODU v. JOLAOSO (2002) LPELR-6008(CA) or [2003] 8 NWLR (Pt.823) 547, per Onalaja, JCA at page 19, Paras. B-G; OSUDE BROTHERS (NIG.) LTD v UVIEGHARA (2007) LPELR- 8695(CA), per Alagoa, JCA at pages 14-15, paras. C G; and ABIEGBE v REGISTERED TRUSTEES OF THE AFRICAN CHURCH (1992) 5 NWLR PART 241 page 306. From his supporting affidavit, the crux of his complaint were that after the Defendant was duly served with the order of Court, he made attempts to exercise his visitation rights on the 24 th of November, 2012 and on the 8 th of December, 2012, but was prevented from doing so by the Defendant. These allegations were particularly contained in paragraphs and of the supporting affidavit which I have quoted above. The Defendant had however not only denied the allegations but had stated in her Counter Affidavit that on the dates mentioned the Plaintiff had insisted on exercising his visitation rights at times earlier than those specified by the Court and when she insisted that the Plaintiff should comply with the times stipulated he had 15

16 made scenes which attracted the attention of her neighbours and as a result of which her landlord ejected her from her previous address. That sometime in February, 2013 the Plaintiff had actually exercised such visitation rights at a mutually agreed Southern Fries Restaurant at Area 11, Garki, Abuja and since then he travelled abroad and after his return he had not come forward to exercise his visitation rights. [See paragraphs 3(ii) 3(xii) quoted above]. The Plaintiff has not filed any Further and Better Affidavit to contradict the factual allegations raised by the Defendant/Respondent. In IKEH v. IKEH (2008) LPELR-8539(CA), Galinje, JCA, relying on the supreme Court decision by Kutigi, JSC (as he then was) in AG-ONDO STATE v A-G EKITI STATE (2001) 9-10 SC 116, held that: "Just as failure on the part of the Respondent to file a counter affidavit will entitle the Court to believe and act on the affidavit of the Applicant, so also would the Court accept and act on any facts stated in a counteraffidavit not answered or controverted by a further and better affidavit. (Pages 12-13, paras. E-B). See also: FORSON v CALABAR MUNICIPAL GOVERNMENT & ANOR (2003) LPELR-7273(CA) or [2004] 9 NWLR (Pt.878) 227, per Thomas, JCA at pages 19-20, paras. E-A; AGBACHI v. AZUBUIKE (2010) LPELR-3646(CA), per Aboki, JCA at pages 48-49, paras. E-A. Since in the instant case, the Plaintiff/Applicant has filed no Further and Better Affidavit to the Defendant/Respondent s Counter-Affidavit, the Court must regard and hereby so regards the Defendant s averments in the Counter- Affidavit as duly established. This being so, it means that the evidence before the Court is that the Plaintiff who has filed this application was actually insisting on exercising his visitation rights outside the time prescribed in the order of this Court of 19/11/12 in respect of which he now wants the Court to 16

17 hold the Defendant in contempt. As rightly submitted by learned Counsel for the Defendant, the Defendant cannot be held in contempt by merely insisting that the Plaintiff should adhere to the times stipulated in the order of Court. I therefore waste no time in holding that the Plaintiff has failed to discharge the burden of proving beyond reasonable doubt that the Defendant was in contempt of the Order of this Court of 19 th November, I therefore resolve the only issue in this application in the negative. Consequently, this application lacks merit and it is accordingly hereby dismissed. Parties are however ordered to continue to ensure compliance with the said order pending the determination of this suit. HON JUSTICE A.B. MOHAMMED JUDGE 29 TH JULY, 2013 Chuwang: Okoroafor: Court: We are grateful for the ruling. We ask for cost of N50, against the Plaintiff in favour of the Defendant. We are not conceding to cost and we are agreed on the 16 th of September, Case is adjourned to the 16 th of September, 2013 for ruling of the Defendant s motion on notice. No order is made as to cost. 17