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JUDGMENT 1. This suit was commenced by way of Originating Motion dated and filed on 26/07/2018, by the Applicant/Judgment Creditor. The applicant vide this Application is seeking for the following reliefs:- a. AN ORDER pursuant to Order 63, rule 6 permitting the Applicant to proceed against the within named Respondent the Chief of Defense Staff in person of General AG Olonisakin. b. AN ORDER formalizing committal procedures against the within named Respondent, the Chief of Defense Staff (General AG Olonisakin) pursuant to the provisions of Order 63. c. Further to (2) supra, AN ORDER pursuant to the provision of Order 63, rule 4(2) directing forthwith the issuance of summons to be served on the within named Respondent, the Chief of Defense Staff (General AG Olonisakin) which summons shall request the said within named Respondent, the Chief of Defense Staff (General AG Olonisakin) to appear before this court on a date to be directed by this court to show why the within named Respondent, the Chief of Defense Staff (General AG Olonisakin) should not be committed to prison for the act of disobedience to the order of court in this case dated June 21, 2017 in suit number NICN/ABJ/253/2016. d. SUCH OTHER ORDER(S) including any other further directions(s) or order(s) against within named Respondent, the Chief of Defense Staff (General AG Olonisakin) as the Court is authorized to grant under the provisions of the Constitution, under the provisions of the National Industrial Court Act and under the stipulations of the National Industrial Court (Civil Procedure) Rules, 2017 as this Honourable Court deems just and proper in the circumstances. 2. The originating Motion on notice was supported by a 19 paragraph affidavit and seven exhibits attached therein. The affidavit was deposed to by Abdulfatai Mohammed (Lt. Col- RTD) the Applicant/Judgment creditor in the present suit. 3. A written address was also filed along with the Originating Motion. Abdul Mohammed, Esq; counsel for the Applicant/Judgment Creditor in oral adumbration before the court informed the court he is relying on the depositions contained in the affidavit in support of the application and adopts his written address filed along with the application. In the written address, a sole issue was formulated for determination, to wit: ‘’WHETHER IT IS APPROPRIATE FOR THIS COURT TO GRANT THE FORMAL PRAYERS SOUGHT ON THIS APPLICATION’’ 4. Counsel argued that based on the facts deposed to in the affidavit and the Exhibits attached therein and other factual materials on the record, the court should grant the prayers sought, counsel relied on the provisions of Order 63of the rules of court which deals with committal as he is of the opinion that the Respondent in the suit has remained disobedient to the order of the court. 5. Counsel urged the court to grant the prayers sought to enable the Applicant/Judgment creditor to have the summons to be issued to the alleged offender to bring him before the court so as to be questioned and cross-examined about the serious allegation that he deliberately disobeyed the order of court and has proudly persisted in contempt of the Court. 6. Counsel urged the court to grant all the Applicant’s prayers as it is in the interest of justice. COURT’S DECISION: 7. I have carefully considered the processes filed, as well as the arguments canvassed by counsel in support of the Originating Motion. 8. The applicant commenced this action by way of Originating Motion, seeking for order of court permitting the applicant to proceed against the within named Respondent, the Chief of Defence Staff in person of General AG Olonisakin, an order formalizing committal procedures against the within named Respondent, the Chief of Defence Staff (General AG Olonisakin) and an order directing issuance of summons to be served on the within named Respondent the Chief of Defence Staff (General AG Olonisakin), which summons shall request the within named chief of defence staff to appear before this court to show cause why the within named Respondent, chief of defence staff (General AG Olonisakin should not be committed to prison for the act of disobedience to the order of court in this dated july 21, 2017, in suit no. NICN/ABJ/2016. 9. The Respondent is not a natural person who can be easily proceeded against in contempt proceeding. The Respondent is an office created by statute. Proceeding against the Respondent will pose a lot of challenges. The provision of Order 63 Rule 6 provides the way out in that, the applicant can seek leave of court to proceed against any of the principal officers of the contemnor, or against the chief executive officer, managing Director, the company sectary or any other responsible and highly placed officer of the contemnor. 10. By prayer 1, on the face of the Originating Motion the applicant is seeking to cite for contempt General AG Olonisakin, as the office holder of the Respondent. I am of the view that the applicant is right for asking this court to grant leave to him to proceed against General AG Olonisakin, the holder of the office of Chief of Defence Staff since there is no way the office which is an artificial person can be proceeded against, without the holder of the person being proceeded against personally. In the circumstances, leave is hereby granted to the applicant to proceed against General AG Olonisakin. 11. In respect of prayer 2 and 3, on the face of the Originating Motion, the applicant is praying for regularization of the committal proceeding and issuance of summons to be served on General AG Olonisakin requesting him to appear before this Court on a date to be directed by the court to show cause why he should not be committed to prison for act of disobedience to the order of court made on June 21, 2017. 12. For the prayers 2 and 3, to be granted the applicant must convince the court that the person to be cited for contempt has been duly served with order of court which he is in contempt of together with the relevant forms. 13. It is appropriate here to examine the provisions of the Rules of this Court and the provisions of the Judgment Enforcement Rules. Order 63 Rule 2(1) read: 2. (1) 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; Supported by an affidavit and shall state the grounds of the application; Accompanied with a copy of the judgment or order or direction of the court which is the subject of the contempt proceedings? With a written address giving sufficient and compelling reasons for necessitating the contempt proceedings. (2) the motion on notice, affidavit and grounds shall be served personally on the person or on counsel to the person or on 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. 3. ……………. 4. ……………. 5……………… 6. where the contemnor is not a natural person, the court or the applicant shall seek leave of the court to proceed against any of the principal officers of the contemnor, or against the Chief Executive Officer, Managing Director, the Company Secretary or any other responsible and highly placed officer of the contemnor. 14. While, Order 9 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. 15. Order 9 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. 16. The provisions Order 63 of the National Industrial Court of Nigeria, (Civil Procedure) Rules 2017 quoted above and the provisions of Order 9 Rule 13 of the Judgment Enforcement Rules are very clear and unambiguous. The provisions must be obeyed in commencing contempt proceedings. The Applicant has positively in his affidavit evidence averred that the Respondent has been duly served with the order and notice of consequence of disobedience to court order pages 13-14 of exhibit support. It was also averred that the Respondent and his counsel fully participated in the proceeding that culminated in the order which is the subject of contempt of proceeding. 17. I have had a hard look at pages 13 – 14 of the exhibit support, it is clear that the counsel for the applicant settled the processes which was meant for service on Chief of Defence staff. It should be remembered that the person that is the subject of this contempt proceeding is General AG Olonsakin, whom this court has just granted leave to the applicant to proceed against in respectof this contempt proceeding. This means that the applicant has not served Geberal AG Olonisakin, with the processes as required by law for the contempt proceeding to be properly before the court. 18. By rules of this court contempt or committal proceeding is by way of motion on notice and not by way of originating motion. There is a world of difference between motion on notice and Originating Motion, they are not one and the samething. 19. It is pertinent to note that service of contempt proceeding processes on contemnor or person to be cited for contempt is what will clothe court with jurisdiction to proceed against such person. in the case at hand and in the circumstances of this case this court does not have power as at now to grant prayers 2 and 3 against General AG Olonisakin, for the simple reason that he is yet to be serve with the committal processes. The failure by the Judgment Creditor to serve the motion on notice for committal is fatal to the contempt proceeding. See ABBAS V SOLOMON (2001) 15 NWLR (PT.735) 144. The applicant succeeded only in respect of prayer one and prayers 2 and 3 being incompetent are hereby struck out. 20. This clearly is in contravention of the clear and unambiguous provisions of Order 9 Rule 13(1) of the Judgment Enforcement Rules, which provides that the Form 48 should be served in like manner as a judgment summons. In accordance with Order 9 Rule 5(1) of the Judgment Enforcement Rules a judgment summons shall be personally served. The operative word in Order 9 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: 21. 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 to act in the way and manner provided by the Rules. Since contempt proceedings affect the liberty of individuals the law expect strict compliance with procedural rules. Therefore, where there is slightest deviation or non-compliance with the rules, a court of law must exercise its discretion in favour of the contemnor. This is because the law cannot gamble with the liberty of the individual in the proceedings relating to contempt of the order of court. Any irregularity no matter how infinitesimal in procedure for committal is fundamental vice, which vitiate the entire application. 22. It is patently clear from the above provisions governing this application that the motion on notice for committal, affidavit in support and grounds for committal for contempt must be served personally on the persons sought to be committed. However, in appropriate circumstance the court may dispense with personal service where justice of the case demands. In this case the court has not dispensed with personal service. Consequently, the condition precedent for the exercise of jurisdiction has not been met. MADUKOLU V NKENDLIM (1962) AINA V JINADU 1992 4 NWLR PT233 90, UHUNWANGBO V OKOJIE 1989 5 NWLR PT.122 471, CHUKWU & ORS V CHUKWU & ORS 2016 LPELR – 40553(CA). It is after issuance and service of forms 48 and 49 that motion for committal can be brought before the court having not done that in this case the motion is incompetent. See Basil Okomo v Sunday Samuel Udoh (2002) 1 NWLR (pt.748) 438. 23. In view of the non-compliance with laid down procedure as enumerated in order 63 of the rules of this court order 9 rule 13 of judgment enforcement rules, prayers 2 and 3 of the Originating Motion for committal is defective and incompetent. It is hereby struck out. 24. I make no order as to cost. 25. Ruling entered accordingly. Sanusi Kado, Judge. REPRESENTATION: J. I. Onwugbolu, Esq; counsel for the claimant Amos Toris, Esq; counsel for the defendants