Contempt of Court

For most litigants, contempt matters as the answer to a practical question: what happens when the other side ignores the order.

Nigerian practice uses a two form procedure. Form 48 is a notice of the consequences of disobedience, served on the person bound by the order, warning them that failure to comply will lead to committal proceedings. Form 49 is a notice to show cause why an order of committal should not be made, filed and served where the disobedience continues.

The applicant must establish that the order was clear, that it was properly served on the person, that they understood what it required, and that they disobeyed it.

The court's response ranges from an order to comply within a stated period, to a fine, to committal to prison until the contempt is purged.

Purging the contempt means putting matters right: complying with the order and apologising to the court. Because civil contempt is coercive rather than punitive, compliance is what ends it.

Contempt is the backstop that makes injunctions and undertakings meaningful, and Nigerian courts do use it.

The practical difficulty is procedural strictness. Committal affects liberty, so courts require the applicant to have complied exactly with the process. Defects in service of the order, in service of Form 48, or in the clarity of the order itself defeat many applications, and applicants who cut corners find themselves back at the beginning.

Where the person bound is a company, the position is that officers of the company can be proceeded against, since a company cannot be committed. That is why orders against companies are commonly framed to bind named directors as well.

The sub judice rule is the other practical point, and it affects publishers rather than litigants. Commentary published about a pending case that is likely to prejudice it can amount to criminal contempt, and Nigerian courts have addressed media conduct on this basis.

For a litigant whose order is being ignored, the sequence is straightforward: ensure the order was personally served, serve Form 48, allow the stated period, then file Form 49. Doing it properly the first time is faster than doing it twice.

Two different responses to somebody not doing what a court decided, suited to different orders.

Where the order is to pay money, contempt is generally not the route. Money judgments are enforced through garnishee proceedings attaching funds held by a bank, a writ of fieri facias authorising seizure and sale of property, or a judgment summons examining the debtor about their means.

Where the order is to do or refrain from doing something, contempt is the enforcement mechanism. An injunction, an order for delivery up, an order for possession or an undertaking to the court is enforced by committal proceedings.

The distinction reflects an old principle that people are not imprisoned simply for owing money, subject to the limited circumstances in which a judgment summons can lead to committal for wilful default.

A litigant facing non compliance should therefore ask what kind of order they hold, because the enforcement route follows from it.

The procedure is strict and unforgiving. Defective service, an ambiguous order or a missing step defeats the application regardless of how flagrant the disobedience was.

Committal is also a last resort. Courts prefer to secure compliance, and will often give a further opportunity rather than commit.

A company cannot be committed, so proceedings must target officers, which requires the order to have bound them.

And contempt does not compensate. It coerces compliance or punishes obstruction; a party who has suffered loss from the disobedience still needs a separate claim for damages.