Alhaji Razaq Olayinka Bello & Ors. V. Attorney General of Lagos State & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
This is an interlocutory appeal against the ruling of the Honourable Justice S. O. Hunponu-Wusu of the High Court of Lagos State, Ikeja Judicial Division. In the said ruling, which was delivered on 10th January, 2002 the learned trial judge refused the application of the appellants for:-
(1) An order of interlocutory injunction restraining the Defendants jointly and severally, their agents, privies, assigns or howsoever from giving effect to the provisions of the Land Use Charge Law No. 11 of 2001 until the determination of the suit and
(2) An order of court referring all questions formulated by the appellants in their originating summons to the Court of Appeal for determination.
Briefly, the genesis of the facts leading to the ruling subject of this appeal dated back to the 2nd August, 2001 when the plaintiffs filed an originating summons at the High Court Registry, Ikeja challenging the validity of the Lagos State Land Use Charge Law. The originating summons was served on the defendants on 7th August, 2001. By the said originating summons, the plaintiff sought inter alia to invalidate the Lagos State Land Use Charge Law on the ground that same violates certain provisions of the 1999 Constitution of the Federal Republic of Nigeria. The plaintiffs also sought an order of perpetual injunction restraining the defendants from implementing provisions of the said law.
Consequent to its ruling delivered on the 10th January, 2002 therefore, the lower court did not only refuse the prayers of the plaintiffs in their entirety but also held their counsel guilty of contempt for publishing a public notice intimating the public of the pending application for interlocutory injunction.
The appellants, irked and being dissatisfied with the said decision of the court, filed notice of appeal dated 23rd and filed on the 24th January 2002. The said notice contained four grounds of appeal. By the leave of this court sought and obtained on the 17th September, 2002, the appellants filed one additional ground of appeal.
In accordance to the rules of this court parties exchanged briefs of arguments with the appellants’ brief dated and filed 11th November 2002, while that of the respondents was also dated and filed on the 3rd December, 2002. On the 16th March, 2006 when the appeal was called up for hearing the appellants counsel was absent. In accordance with Order 6 rule 9(5) of the rules of this court, the appellants said brief was however deemed as having been argued.
The learned respondents’ counsel Mr. A. R. Ipaye on behalf of his clients adopted their brief filed and urged this court to resolve all the issues in their favour and therefore dismiss the appeal in its entirety.
The appellants’ counsel Mr. Ade Sanusi on behalf of his clients distilled three issues for determination from the four original plus the one additional grounds of appeal filed, and same reproduced are as follows:-
- Was the lower court right to have refused the prayer of the plaintiffs for an order of interlocutory injunction, especially having regard to the fact that the only affidavit evidence before the lower court was that of the plaintiffs, as the defendants did not file any counter affidavit.
- Whether or not the lower court was right to have refused the prayer of the plaintiffs for reference to the Court of Appeal for determination – certain questions raising substantial constitutional issues.
- Whether or not the lower court was right to have held contemptuous the publication of the public notice admitted as Exhibit 1.
In the formulation on behalf of the respondents their learned counsel adopted basically the issues as formulated by appellants but with some modifications as follows:-
- whether the lower court was right to have refused the prayer of the plaintiffs/appellants for an order of interlocutory injunction, when the only affidavit evidence before the court was that of the plaintiffs/appellants.
- whether the lower court was right to have refused the prayer of the Plaintiffs/Appellants for referral of all issues formulated by them in their originating summons to the Court of Appeal for determination.
- whether the lower court was right to have held contemptuous the publication of Exhibit 1, a public notice issued by the plaintiffs/appellants.
For the determination of the 1st issue raised, the learned appellant’s counsel re-iterated the fact that the only affidavit before the lower court was that of the plaintiffs, in the absence of the defendants filing any counter affidavit. That it is from affidavit evidence that the court will be able to determine a number of important issues including:-
a) balance of convenience
b) adequacy of damages as compensations for injury.
c) possibility of success at trial.
Learned counsel in support cited the case of Kotoye v C.B.N. (1989) 1 NWLR (pt. 98) 419 at 441. Also the case of Ilori v Benson (2000) 9 NWLR (Pt.673) 570, (2000) FWLR (pt 26) at 1846 to buttress his argument that an address or submission of counsel no matter how brilliant it may be, cannot constitute evidence.
That having regard to the plaintiffs’ complaint same was not predicated about payment of rates alone. Reference to their affidavit at paragraph 6 at page 7 of the records reveals that certain section of the Land Use Charge Law breached their fundamental human rights to privacy, property and fair hearing, and which counsel argued, damages can never be adequate in the situations. Thus that the lower court’s conclusion of the balance of convenience in favour of the defendants is very erroneous as there is no basis for it having regard to the evidence before the court. Furthermore that the lower court’s conclusion on the adequacy of damages cannot stand as it did not take into consideration the issue of fundamental human rights of the plaintiffs, which the implementation of the Land Use Charge Law would definitely breach. Learned counsel further garnered that the lower court also misapplied to the facts of this case, the sound legal principle that a restrictive injunction cannot be issued against an act that has already been concluded.
In further re-iteration learned counsel argued that the originating summons in this case which contained a relief for perpetual injunction was served on all the defendants particularly the 3rd defendant on 7th August, 2001, a week before he issued and published Exhibit OA1. Specific reference was made to the Supreme Courts decision in Military Government of Lagos State v Ojukwu (1986) 1 NWLR (Pt.18) 621, (2001) FWLR (pt.50) 1779, wherein it was held that:
“After a defendant has been notified of the pendency of a suit seeking injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status wholly, irrespective of the merit as may be ultimately decided”.
Counsel argued the error by the lower court based on the facts or evidence before it to have held that an “injunction was not a remedy for act that had already been done or taken place”. He further submitted the absence of evidence of concluded implementation of the Land Use Charge Law before the lower court. That in view of the above, especially having held that the plaintiffs raised serious triable issues and the defendants having filed no counter affidavit, thus proffering no evidence before the lower court, the said court should have granted plaintiffs prayer for the interlocutory injunction sought.
In response to the appellants submissions, the learned respondents’ counsel submitted in favour of the correct findings and conclusions arrived at by the lower court in spite of the absence of a counter-affidavit. Counsel re-iterated the established rule to the effect that, in the absence of a counter-affidavit from the opposing party, facts properly put before the court by wax of an affidavit would be presumed correct. Counsel relied on the case of Attorney-General of Ondo State v. Attorney-General of Ekiti State (2001) 17 NWLR (Pt.743) 706, (2001) vol. 50 WRN 1 at 31 per Kutigi JSC. Counsel further submitted however that failure to file a counter-affidavit does not necessarily validate every statement in the affidavit filed by the other party.
The learned counsel made reference to certain paragraphs in particular paragraph 11 of the plaintiffs’ affidavit which he argued did not place facts before the court, but a mere speculative and argumentative piece which he submitted attempts to foist a conclusion on the court. That the consequence of suspending the operation of an existing law is a matter of law, which was for the trial court to decide upon. That while the appellants would possibly have deposed to the effect of such suspension on themselves, their affidavit as to the effect on the respondents was, at best, a speculation, which counsel argued, the learned trial judge validly ignored. That it is an established principle of law beyond contention that affidavits should not contain conclusions of fact, arguments or opinion. It is rather for the court to make up its mind and come to those conclusions based on bare facts placed before it.
Further still, that the said paragraph 6 of the affidavit in support did not put any fact before the lower court. Rather that it was an ill-concealed argument and conclusion of law. That a discretionary order of court is not obtained just for the asking of it. Counsel argued the propriety of the lower court to have come to a conclusion that the balance of convenience was in favour of the defendants. That the Land Use Charge Law of Lagos State is an existing Law, which was validly passed by the State House of Assembly and assented to by the Governor. That since the plaintiffs/appellants wanted the law suspended by an order of injunction, not only as against themselves as complainants but as against all tax payers in the state, the legal presumption was therefore in favour of validity of the law.
That by the provision of section 50(1) of the Evidence Act when an official act is shown to have been done in a manner substantially regular, it is presumed that, forrmal requisites for its validity were complied with. That such acts cannot therefore be impeached peremptorily by a court, which has not taken evidence in rebuttal of the statutory presumption. In support and to buttress the argument are the cases of Ogbuanyiya v. Okudo (No.2) (1990) 4 NWLR (pt 146) 551; and Adesanya v President of Nigeria & Anor. (1981) 2 NCLR 358, (1981) NSCC 14 at 160.
On the arguments by the appellants’ counsel that the lower court misapplied to the facts of this case the sound legal principle on a restrictive injunction to a concluded act counsel made specific reference to paragraphs 3, 4 and 5 of the plaintiffs’ affidavit and submitted a supportive confirmation of the refusal by the lower court of the order sought for.
For the determination of this appeal, the three issues formulated by the appellant and which same had basically been adopted by the respondent are to be taken serially. The resolution of the 1st issue therefore would call for the reproduction of the findings by the learned trial judge at pages 65 and 66 of the record of appeal wherein he said as follows:-
“The plaintiffs in their affidavit evidence raised serious triable issue and the defendants too have raised some substantial triable issues. The courts have been warned to refrain from trying an issue both at the interlocutory stage and at the substantive stage. The better approach is to fix the case for trial and decide the issue once and for all. The Supreme Court had further warned that an interlocutory injunction was not a remedy for act that had already been done or taken place. The balance in this particular case weigh more on the defendant and in favour of not granting same and the state loose several million of naira from the non implementation of the law where as the plaintiffs who have paid could be compensated with damages.”
A succinct summary of the appellants notice of appeal and the 1st issue contends that the learned trial judge erred in law by its refusal in granting an order of interlocutory injunction based on a conclusion that the balance of convenience was in favour of the defendants, who would lose huge sum of revenue if they were restrained from enforcing the law. The conclusion thus arrived at was per the appellants’ counsel, speculative, in the absence of any counter affidavit and therefore not based on any facts. The counsel also saw the conclusion as erroneous when the court held that execution of the law was a concluded act when it was in fact an act which would continue ad-infinitum until the law is repealed.
In agreeing with the submission by the learned appellants’ counsel, there was no counter affidavit in response to the application before the lower court. As rightly contended by the counsel therefore it is an established rule that where depositions in an affidavit are not denied by way of a counter affidavit, they are generally deemed admitted and the court is to act thereon. That general rule not withstanding, the same law expects that for such a presumption to be correct, the facts on the affidavit must have properly been put before the court. This was the principle laid down by Kutigi JSC in the case of Attorney-General of Ondo State v. Attorney-General of Ekiti State reference supra. It follows therefore that the absence of a counter affidavit does not ipso facto amount to a conclusive exercise of a favourable discretion. There is a burden of proof on the applicant which same could only be discharged on the satisfaction to the court of material facts placed before it. In otherwords an unfettered burden lies on the applicants’ affidavit to stand or fall on its own merit. This is synonymous to the requirement placed on the plaintiff to succeed on the strength of his own case and not rely on the weakness of the defence. The presumption therefore that an unchallenged and uncontroverted averments in an affidavit are deemed admitted does not hold in all situations. In the case of Ejefor v. Okeke (2000) 7 NWLR (pt.665) 363 at 381 this court, Enugu Division had this to say:-
“The statement of the law that there is a presumption that unchallenged and uncontroveterted averments are deemed admitted does not hold in all situations where averments in affidavit in support of an application are contradictory or if taken together are not sufficient to sustain the applicant’s prayers, a counter-affidavit in challenge of such averments would manifestly become unnecessary. There is no rule of law that makes the filing of a counter affidavit to an application a sine qua non in every case”.
On the same proposition and also in another case of Orunlola v. Adeoye (1995) 6 NWLR (Pt 401) 338 at 353 this court again in aligning with the same principle had this to say on absence of counter affidavit:-
“There is no rule of law or practice which lays it down that an affidavit in opposition of or countering the averments of an affidavit in an application supported with an affidavit evidence is a sine qua non in any or every case. If an affidavit is self contradictory or the facts contained there in are presumed to be true and when taken together are not sufficient to sustain the prayers of the applicant, it would be needless for a respondent to swear to and file an affidavit in opposition. It may even be that there is nothing in the affidavit in support of application worthwhile countering by filing an affidavit in opposition.”
The plaintiffs’ counsel on the establishment of the plaintiffs’ right in the application at the lower court relied on paragraphs 3, 4, 5 & 7 of the affidavit in support of the motion to the effect that the plaintiffs as house owners were apprehensive of the State Government and would therefore be seriously affected by an irreparable injury should the said Government put their law into operation. In the consideration of the application, it was obvious that the overriding determinant factor is the balance of connivance based on the satisfaction of the court deduced from the facts disclosed in the affidavit evidence. It was for the plaintiffs who alleged greater inconvenience to have therefore proved same.
In Halsbury’s Laws of England, 3rd Edition page 352 paragraph 739, the author said:-
“By irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury, which-cannot possibly be repaired. The fact that the plaintiff may have a right to recover damages is an objection to the exercise of jurisdiction by injunction, if this right cannot be adequately protested or vindicated by damages.”
This definition of irreparable injury was quoted with approval by the Supreme Court in Saraki v. Kotoye (1990) 4 NWLR (Pt.143) 144 at 187. It is therefore the duty of the trial court in finding the balance of convenience to be satisfied that there are facts disclosed in the affidavit evidence to enable it arrive at the just conclusion in the matter before it. Lord Diplock in the case of American Cynamide Co. v. Ethicon Ltd (1975) AC 396 at 407 – 408 gave an advise to the effect that the burden of proof that the balance of convenience is in his favour and that the inconvenience he will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted lies on the plaintiff.
The said contention was quoted and largely applied by our courts in particular the cases of Gov. of Imo State v. Anosike (1987) 4 NWLR (Pt.66) 663 at 673; Ifechukwu v Iwugo (1988) 2 NWLR (Pt.107) 99 at 102; Obeya M.S.H. v. A.-G. Fed. (1987) 3 NWLR (Pt.60) 325 and Globe Fishing Ind. Ltd. v. Chief Folarin Coker (1990) 7 NWLR (Pt.162) 265 at 295.
The appellants at hand and at page 2 of their brief of argument submitted and said thus:
“There was no evidence before the lower court that the defendants would lose millions of naira. The lower court conjured this up. The only evidence relevant to this, is paragraph 11 of the affidavit in support……… so the defendants stand to suffer no damage.”
The reproduction of the said paragraph 11 of the affidavit in support is relevant and states as follows:-
“That if the operation of the law is put in abeyance pending the final determination of this suit, it would not have any adverse effect on the defendants as the three existing law can continue to operate pari pasu.”
The determination of the effect of the suspension of the operation of the existing law on the respondents as certainly submitted by their counsel is at best speculative and which the appellants could not have been in a position to depose thereon. It is also trite that the consequence of such a suspension is a matter of law upon which the trial court was competent to decide thereon; the deposition on the affidavit therefore contravenes the provisions of the Evidence Act. Furthermore and also as rightly submitted by the learned respondents’ counsel, the contents of the affidavit had not related or placed any material fact before the court but mere arguments amounting to a conclusion.
Furtherstill and on the allegation by the plaintiffs of their human rights to privacy, property and for having been breached by certain sections of the Land Use Charge Law, reliance was firmly made to paragraph 6 of the affidavit in support of their application at page 7 of the record of appeal which same reproduced also states as follows:-
“That apart from the constitutionality of the law viz-a-viz S.7 and 4th schedule of the Constitution of Nigeria 1999, the plaintiffs are also contending that the following sections of the law are unconstitutional. Section 3 (3) a – d, 5, 13, 15, 18, 19, 20 and 22”.
The said paragraph with all respect to the learned appellants, counsel has greatly contravened the provisions of section 87 of the Evidence Act as being argumentative, and also amounting to legal conclusions.
It is trite that an injunctive order is a discretionary remedy. The court in its exercise of discretion must however do so judicially and judiciously, and having taken all circumstances of the case into account. As restated earlier, the burden of establishing a case of a balance of convenience rests always on the applicant. This principle was well enunciated in the cases of Ladunni v Kukoyi & Ors (1972) 1 All NLR (pt.1) 133 and Donmar Productions Ltd. v. Bart & Ors. (1967) 2 All ER 338.
By the provision of section 50(1) of the Evidence Act, there is the presumption of regularity of an official act shown to have been done in a manner substantially regular. Such acts cannot therefore be impeached peremptorily by a court in the absence of a rebuttal evidence having been taken of such statutory presumption. This is in view of the formal requisites for its validity having been complied with. Consequently, the duty and onus lie on the plaintiffs to have shown conclusively why the balance of convenience ought to have tilted in their favour. The evidence of such proof ought to have been shown on the affidavit in support of their application, in a convincing and an unambiguous manner. The relevant supporting authority in point is Ogbuanyinya v Okudo NO.2 (1990) 4 NWLR (pt.146) 551 at 570 per Karibi-Whyte JSC where the maxim “Omnia Praesumuntur rite esse acta” commonly applied especially with respect to official acts. The same principle of law was also applied in the case of Adesanya v President of Nigeria & Anor (1981) NSCC 146.
It is also the submission of the learned appellants’ counsel that the “lower court misapplied to the facts of this case, the sound legal principle that a restrictive injunction cannot be issued against an act that has already been concluded”. At page 3 of the appellants’ brief of arguments it is submitted that:-
“The only evidence of implementation of the Land Use Charge Law before the lower court was exhibit OA1 attached to the further and better affidavit filed by the plaintiffs. EXHIBIT OA1 is the annual rates applicable under the land use charge law issued and published by the 3rd defendant in the Guardian Newspaper of August 14, 2001.
Apart from this, there was no other evidence of implementation.”
The contention by the appellants can best be visualized in the light of paragraphs 3, 4 and 5 of the plaintiffs affidavit in support of the application at page 7 of the record which same reproduced state as follows:-
“3. That I am informed by the plaintiffs and I verily believe them that the Defendants have started the implementation of the law subject matter of this suit.
4a. That I am further informed by the plaintiff and I verily believe them that all the Local Government in Lagos State have executed agreement transferring their constitutional duty of assessing, imposing and collecting property tax to the Lagos State Government.
4b. That the 3rd Defendant has already published rates to be applied under the Land Charge Law.
- That the plaintiffs are property owners who are directly affected by any imposition of taxes under the land charge law 2001”.
It would also be significant to recapitulate on the order sought by the plaintiffs before the lower court, which same per prayer No. 1 was to restrain the “Defendants …………. from giving effect to the provisions of the LAND USE CHARGE 200 1 until the determination this suit.”
It is trite law that the duty of the court is to give a strict interpretation to that which is before it. In other words, with due reference to the prayer sought for at the lower court, same seeks an order of injunction from ever giving effect to the law, This is contrary to paragraph 3 of the affidavit in support wherein the said law was being implemented. In other words, the defendants were not to be restrained from continuing to implement the law, but from ever giving effect to same.
There is no duty on the court to grant a relief which had not been sought for. The appellant did not seek for the relief they are now alleging from the court, who is not a father Christmas. From all indications, the implementation of the Law, the subject matter of the suit, had already began.
As rightly submitted by the respondents’ counsel therefore, the learned trial judge was right to have refused the injunction application.
Consequently the appellants’ 1st issue in the result fails and is accordingly dismissed.
The second issue questions the propriety of the lower court in refusing the prayer of the plaintiffs for reference to the Court of Appeal for determination – certain question raising substantial constitutional issues.
The plaintiffs/appellants’ contention was that the reference in respect of their prayers 2(a) – (F) of the motion subject of this appeal be made to the Court of Appeal without the parties being heard thereon, at the lower court. The central bone of contention in this issue revolves around section 295(2) of the 1999 Constitution which same reproduced reads as follows:-
“295(2) where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the
court in which the question arose shall dispose of the case in accordance with that decision.”
In the substantiation of the said issue raised, the learned appellants’ counsel submitted the lower court having imported extraneous matter there into the .said section 295(2) and thereby coming to a wrong interpretation of same. The learned counsel drew on the conclusions reached by the trial court and re-iterated nothing more further and erroneous in law. The learned counsel went further to dwell on the word proceedings” as defined by the Blacks’ Law Dictionary 6th Edition. He therefore submitted the phrase “in any proceedings” to mean at any stage or point from the filing of the suit to its final conclusion. That an application for reference can thus be made at any point once the suit has been instituted. The counsel submitted the unjustifiable refusal of the plaintiffs’ application for reference by the lower court, on the ground that the questions have either not arisen in the course of proceedings before the court or that it was premature.
That having regard to the historical background of the case, it was wrong of the lower court to have held that the respondents have not filed a counter affidavit to the originating summons to have necessitated an issue arising for the Court of Appeal to adjudicate upon. That the defendants’ non filing of a counter affidavit or a preliminary objection meant that they agreed with questions stated on the originating summons and were ready to thrash same out. Learned counsel in support of his position cited the authority in the case of AG Ogun State v. Aberuagba (1981) 2 NWLR 395. That all the questions raised in the originating summons directly relate to various sections of the constitution and arc live questions, which do not merely touch upon constitutional interpretation. That the lower court should have granted the application for reference.
The learned counsel in further substantiation cited the case of Bamaiyi v. A.G. Federation (2000) FWLR (Pt. 1) 29; also Rosek v. ACB (1993) 8 NWLR (Pt 312) 382.
In response to the submission by the appellants the learned respondents’ counsel re-affirmed the learned trial judge’s stance as correct. Counsel in re-asserting his position relied on the authority in the case of Friday Obayogie v. Oritsejumi Oyowe & ors (1994) 5 NWLR (Pt 346) p. 637. Further reference was also made to civil form 1 (schedule to the Court of Appeal Rules) under order 2 rule 1. That the case of Augustine Eda v. Commissioner of Police, Bendel State (1982) 3 NCLR 219 wherein reference was properly upheld was also re-iterated as relevant and expositive. That in the instant case all the questions proffered for reference were formulated and brought to court by the applicants. Furthermore that some of the questions were not properly formulated as required by law so as to justify a response.
That they are either academic or vague as they do not even disclose the particular sections of the Constitution which the respondents were supposed to have breached. Particular reference were drawn to questions C, D and E in the appellants’ originating summons dated 2/8/01. Learned counsel urged us to hold -that the questions are not substantial questions of law and that they have not arisen in the course of proceedings before the lower court. Counsel urged that the decision of the learned trial judge in refusing the appellants reference be affirmed therefore.
The action in this matter w as initiated by originating summons and the said second issue related to a reference sought to be made to this court of certain constitutional interpretations. The major question was whether a State House of Assembly can make a law empowering a local government to delegate functions expressly conferred on a local government by the Constitution to another body not contemplated by the Constitution. As re-iterated earlier, the said issue revolves around section 295(2) of the Constitution of the Federal Republic of Nigeria 1999 which same had been reproduced supra. In arriving at its findings, the lower court held at page 62 of the record and said among others:-
“The simple and ordinary interpretation of the expression i.e. “arises in any proceedings” means the question as to the interpretation must have arisen in the proceedings. To have arisen in the proceedings” means “in the course of the proceedings before the court” and not formulated by the parties before the proceedings started.
The plaintiffs in this proceeding have formulated these questions to be referred to the Court of Appeal as stated in their motion on notice dated 23/8/2001. But it his not arisen in the proceeding in that the defendants herein have only been served and have not filed any processes before the plaintiff brought this application on 23/8/2001…………..”
Also at page 65 of the record of appeal, the lower court in its ruling further had this to say:-
“As regards to reference to the Court of Appeal the issues to be referred must have arisen in the proceeding. The issues/questions formulated by the plaintiffs’ counsel have not been canvassed before this Honourable court to have arisen and to warrant the reference to the Court of Appeal. The respondents have not filed a counter affidavit to the originating summons to have necessitated an issue arising fit for the Court of Appeal to adjudicate upon. It will tantamount to depriving this Honourable Court its original jurisdiction on such issues as to the interpretation of the constitution and making the Court of Appeal the court of first instance.”
Deducing from the lower court’s conclusion the contention was that the issues proffered for reference by the plaintiffs/appellants had not arisen in the course of the proceedings. The phrase “arisen in the proceedings” was interpreted by the learned trial judge to mean “in the course of the proceedings before the court” and not formulated by the parties before the proceedings started. Thus his refusal to accede to the applicants’ request. Contrary to the interpretation arrived at by the learned trial court, the appellants counsel argued the phrase “in any proceedings” to mean at any stage or point from the filing to its final conclusion and that “application for reference can thus be made at any point once the suit has been instituted.”
Blacks Law Dictionary reference supra and at page 209 in its definition of the word “proceedings” had this to say:-
“In a general-sense, the form and manner of conducting judicial business before a court or judicial officer, regular and ordered process in form of law, including all possible steps in an action from its commencement to the execution of judgment …………..the word may be used synonymously with action or suit to describe entire course of an action at law or suit on equity from the issuance of the writ or filing of the complaint until the entry of final judgment.”
As rightly observed by the appellants’ counsel, the originating summons herein was filed on 2nd August 2001 and same was served on the defendants on 7th August 2001. The application for reference was also filed on 28th August 2001 and arguments thereon started on 18th September, 2001. As a truism, the defendants as at this date did not file any papers in response to the originating summons. They did not also file any counter affidavit. In the case of Friday Obayogie v. Oritsejumi Growe & ors under reference supra, reference was made to the case of Gamioba v. Esezi II (1961) 1 ALL NLR 584; (1961) 2 SCNLR 237 in which the apex court of the land when considering the types of cases that should be referred to it, laid down the following guide lines:
“(a) The question of law must clearly be one in which arguments in favour of more than one interpretation might reasonably be adduced. It might also be one which must necessarily be decided in the cause or matter and not which may prove unnecessary to decide and the plaintiff must have locus standi in the case.”
Akpabio JCA in delivering the lead ruling in Obayogie’s case and thus dismissing the application had this to say at page 647:
“………. this referral must fail………… this is not the type of question that should be referred to this court under S.259(2) of the Constitution of the Federal Republic of Nigeria, 1979. The question to be so referred are those which arose “in the proceedings” between the parties ………..”
The stated questions in that case did not arise in the cause of proceedings and hence the necessary details for a proper reference were therefore lacking. Properly upheld references have however been made in the case of Augustine Eda v. Commissioner of Police Bendel State (1982) 3 NLLR 219 wherein evidence arguments by counsel to both parties on the questions of law raised in the matter were heard consequent to the reference made. The same procedure was also adopted in the case of A. G.-Ogun State v. Aberuagba (2002) 2 WRN 52.
Significantly and on an analytical deduction of the civil form I (schedule to the Court of Appeal Rules) under order 2 rule (1), the format requires details of the plaintiffs case, the Defendant’s answer and the plaintiffs reply as pre conditions for a making of a proper, reference. In further expectation, it is incumbent on the court making the reference to state the facts found, (after having heard the parties and evidence adduced on each side) before .stating the questions for reference to the Court of Appeal. Having regard to section 295(2) of the constitution reproduced supra, the phrase that calls for constructive interpretation is where the question “arises in any proceedings.”
It is not in controversy that the plaintiffs in this proceedings formulated the questions for reference on their motion on notice. The defendants in the mean time had only been served but have not filed any processes. All the questions proffered for reference therefore were questions formulated and brought to court by the applicants, in the absence of any processes having been filed by the defendants. Issues have not been joined on the matters sought for referral. The measure taken in my humble opinion is pre-emptive, premature, and without conclusive deduction. As rightly submitted by the learned respondents’ counsel, the questions sought for referral have not arisen in the cause of proceedings before the lower court Consequently, I therefore also resolve issue no. 2 against the appellant and same is accordingly dismissed.
The 3rd and last issue, questions the propriety of the lower court to have held contemptuous the publication of the public notice admitted as Exhibit 1. The learned appellants’ counsel argued that by the said notice, the plaintiffs’ counsel informed the general public of the pendency of the application for interlocutory injunction and also that the Land Use Charge Law was a subject of litigation. That the said notice further advised the public to discountenance with any demand notice that may be issued by Lagos State Government and on the said Law. Counsel therefore argued ‘as erroneous ‘the lower court’s holdingthe publication, Exhibit 1 as contemptuous. That the said publication did not breach any order of court and that same could not have foisted any fait accompli on the lower court. Furthermore that the publication had no potential of rendering nugatory any order made by the said court. That the nature of the publication was to serve an information and advise, which the public were not in any way compelled or coerced to follow. Cited in support was the case of Vaswani v. Savalakh (1972) 12 SC 77; also Abdullah v. Governor of Lagos State (1989) 1 NWLR 356. That, with the court processes being public documents, the information to the public cannot therefore be contemptuous. To hold otherwise would amount to a breach of section 39 of the Constitution. That having regard to the conduct and activities of the defendants in continuing with the implementation of the Land Use Charge Law, despite the reserved ruling on the application for interlocutory injunction, the counsel submitted the trial court guilty of the application of double standard in this suit. Counsel further submitted serious error of law by the lower ,court which precluded it from proper exercise of discretion. This court is therefore urged to reverse the ruling in its entirety as it had seriously occasioned a miscarriage of justice.
In response to the submission on behalf of the appellants the respondents’ learned counsel stressed the significance of noting that the public notice in question was issued on 18/9/01, the day the plaintiffs’ application for interlocutory injunction was originally fixed for hearing. That by the very nature, of the publication, the applicants were urging a mass disobedience of law, not only by their own clients, but the general public in Lagos State. The learned counsel therefore endorsed the learned trial judge’s ruling as a welcome combat in response to the contemptuous publication deserving retraction. Counsel in the result implored us to dismiss the appeal in its entirety and order the plaintiffs to pay the attendant costs. In a nutshell the appellants arguments on this issue alleges the erroneous conclusion arrived at by the lower court in holding the publication of Exhibit 1 as contemptuous on the ground that the said publication did not breach any order of court. The same, counsel argued, could not therefore have foisted any fait accompli on the lower court. The publication he also garnered was rather both informative and advisory and that which the public were not in any way compelled or coerced to follow. Counsel further claimed that with the court’s processes being public documents, a publication informing the public of the pendency of a suit before a court cannot therefore be contemptuous.
For the determination of this issue, it would be pertinent to reproduce the publication of the public notice admitted as Exhibit 1. The publication was made in the Punch of Tuesday September, 18th 2001, being a public notice with the caption RE: Suit No. ID/564m/2001
BETWEEN
ALHAJI RAZAQ A. O. BELLO & 2 OTHERS
AND
ATTORNEY GENERAL LAGOS STATE & 6 OTHERS. IN THE MATTER OF LAND USE CHARGE LAW 2001
“This is to inform the general public that the LAND USE CHARGE LAW 2001 is the subject of litigation in the above named suit. The suit seeks to invalidate the said LAND USE CHARGE LAW on the ground that it is unconstitutional and therefore null and void.
It has come to our knowledge that the Lagos State Government in d is regard of the pending suit have published in the Guardian Newspaper of (4th August, 2001 the rate payable under the said law, notwithstanding the fact that they were served with the originating process on 7th August, 2001.
Furthermore a motion for interlocutory injunction has been filed by the plaintiff and has been fixed for hearing for 18th September, 2001.
The public is hereby advised to discountenance any purported notice or any DEMAND NOTICE that may be issued by Lagos State Government under the said LAND USE CHARGE LAW until the final determination of above mentioned suit.
This notice is issued by:
MESSRS SANUSI & OYETUNDE LEGAL
PRACTITIONERS 10, ADEPELE STREET,
IKEJA”
From the analytical concept of the said Exhibit 1, same serves a notice to the general public and thereby giving an information about the pending suit which reference had been made to the Land Use Charge Law 2001, the subject matter of the suit in question. The public was also informed of a pending application for interlocutory injunction and same which had been fixed for hearing on the 18th September, 2001, being the same date the publication was made. It is also clear from the notice that the general public was advised to discountenance any purported notice or demand notice that might be served by the Lagos State Government under the said law.
From all indications and by the very nature of the said Exhibit 1 it is in no doubt that the plaintiffs’ counsel by their publication were trying to overreach the court and thereby foisting upon it a position of complete helplessness. This is clear-cut because, by the plaintiffs’ counsel thus advising the general public to discountenance an enacted law by the Lagos State Government, the act amounts to an invitation of a commotion to our nascent democracy. In otherwords and with the matter being sub-judice same was governed by the sub-judice Rule. The plaintiffs from all indications and as rightly submitted by the respondents’ counsel were by the public notice a warding themselves the very order of injunction which they had sought for from the court. It is within the court’s jurisdiction and powers to have heard arguments and come to a decision on the application. The plaintiffs by their act had ascribed the court’s powers to themselves and thus jumped the gun. They should not be allowed to escape without impunity. L. B. Curzon the author of Dictionary of Law Sixth Edition defined subjudice rule at page 404 and said:-
“Rule relating to contempt of court whereby the courts will act to prevent or punish the publishing of articles in the press which prejudice the fair trial of an action.”
A relevant supporting authority is the case of Attorney General v Times Newspapers Ltd 1974 AC 273 a House of Lords Decision. At page 322 Lord Cross of Chelsea in agreeing with Lord Reid had the following pronouncement to make.
“I agree with my noble and learned friend that we should maintain the rule that any “prejudging” of issues, whether of fact or of law, in pending proceedings – whether civil or criminal- is in principle an interference with the administration of justice although in any particular case the offence may be so trifling that to bring it to the notice of the court would be unjustifiable.
It is easy enough to see that any publication which prejudges an issue in pending proceedings ought to be forbidden if there is any real risk that it may influence the tribunal whether judge, magistrates or jury or any of those who may be called upon to give evidence when the case comes to be heard.”
The subject matter of this appeal was sub-judice. The publication notice had prejudged the pending proceedings. Same I hold did pose a real risk of influence which could amount to an interference with the administration of the justice of the case. By nature the concept of a contempt of court amounts to an interference with administration of justice. The learned trial judge was therefore on track and the reason which his decision in that respect could therefore not be faulted. The publication in my humble opinion had greatly prejudiced the fair trial of the action. By advising and warning the public not to obey an enacted law was in no doubt inviting chaos and a state of anarchy.
Maintenance of Sanity could only be achieved by the plaintiffs’ counsel purging himself by reason of publishing a retraction to the offending notice. The authority of Vaswani v. Savalakh cited by the learned appellants’ counsel and the arguments thereupon do not stand firm and holding ground to the effect that the public were not in anyway compelled or coerced to follow the notice of publication. In otherwords, it is my humble opinion that the said 3rd issue is also resolved against the appellants. Same and the grounds of appeal upon which predicated therefore fail and accordingly dismissed.
In the result and with all the three issues resolved against the appellants, the entire appeal fails and is therefore dismissed. There shall be costs of N10,000 = to the respondents.
Other Citations: (2006)LCN/1994(CA)
