First African Trust Bank Ltd & Anor V. Basil O. Ezegbu & Anor (1992)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

Following the Ruling of the Court of Appeal, Lagos Division, delivered on 5th December, 1991 in which the following orders were made pending the determination of the substantive appeal still before it –

“1. An order setting aside the proceedings and decisions of the General Meeting of the 1st plaintiff held on Saturday the 9th of November, 1991.

2. An order nullifying any decisions taken or the implementation or any implementation thereof and in particular reinstating all employees of the Bank whose appointments were terminated as enumerated in paragraph 26 of the affidavit in support sworn by Emmanuel Ejike.
3. An order generally restoring the status quo ante before the dare of the delivery of the judgment on 1st November, 1991; pending the appeal before us.”

The applicants/plaintiffs filed an application on Notice dated 11th May. 1992 praying for an order:-

“(i) granting leave to amend the Notice of Appeal filed herein against the decision of the Court of Appeal made on 5th December, 1991 by deleting paragraph 4 thereof and substituting a new paragraph 4 as disclosed in paragraph 19 of the affidavit in support of this application;

(ii) directing that the shareholders of the First African Trust Bank Limited shall be at liberty to convene an Extraordinary General Meeting of the Company or alternatively that this Honourable Court shall direct that such a meeting be convened for the purpose of considering, and if they thought fit, passing the resolutions which were passed by a meeting of the shareholders of the said Bank on 9.11.91 but which resolutions were set aside by the Court of Appeal Lagos in its decision made on 5th December. 1991:

(iii) directing that the shareholders to attend such meeting shall be those found by the Federal High Court to have been the true shareholders of the Bank in its judgment delivered herein on 1.11.91;

(iv) in the alternative to prayer (iii), for an accelerated hearing of the appeal herein as well as the motion filed herein and dated 10.12.91 filed on behalf of the Defendants in Suit No. FHC/1/M67/91:

(v) restraining the defendants (in Suit No. FHC/L/M67/91) whether by themselves, their servants or agents whomsoever from –

(a) interfering or attempting to interfere with the management or operations of the First African Trust Bank limited by the present Management Staff; or

(b) making use of violence or force to install themselves or their agents as managers or operators of the banking business of the said First African Trust Bank Limited; without allowing the proceedings in respect of the application of the plaintiffs (in Suit No. FHC/L/M67/91) for stay of execution to be determined by this Honourable Court in case the court below should refuse to entertain or to grant the same:

(vi) directing that Briefs of argument be filed by the parties in respect of the reliefs sought herein in this motion-on-notice;

(vii) deeming the Brief filed and delivered by the plaintiffs in Suit No. FHC/L/M67/91 to have been duly and properly filed:

(viii) making such further or other orders or giving such further or other directions ancillary to the foregoing, as this Honourable Court may deem fit to make or give.

AND FURTHER TAKE NOTICE that the grounds for praying for the following reliefs are as follows:-

1. Prayer (i) is necessary for the furtherance of Justice and Fair Hearing of the sobstantive appeal pending before the court below: 2(a) Prayers (ii) and (iii) are to meet the requirements of the Banking and Other Financial Institutions Decree. 1991 failure to meet which will put an end to the operation of the banking business of the First African Trust Bank:

(b) Prayer (ii) and (iii) are also necessary to ensure that the appeal herein: if successful, is not rendered nugatory or eroded by irreparable damage:

(c) In the face of the order of the court below “generally restoring the status quo ante before the date of the delivery of the judgment on 1st November, 1991″ it is impossible and/or impracticable to apply to that court for the reliefs sought in prayers (ii) and (iii):

3. Prayer (iv) is necessary for the furtherance of Justice and in the interest of both parties to the appeal:
4. Prayer (v) is necessary so that the parties therein mentioned-

(a) do not foist a fiat accompli on the Supreme Court, or

(b) frustrate or render nugatory any order which the Supreme Court may make

in relation to the exercise by the Court of its jurisdiction to entertain the application of the plaintiffs (in Suit No. FHC/L/M67/91) for stay of execution of the decision made by the Court of Appeal on 5.12.91 pending the appeal from that decision:

5. Prayers (vi), (vii) and (viii) are necessary for the furtherance of Justice.

AND FURTHER TAKE NOTICE THAT at the hearing of this application the applicants will crave the leave of this Honoumble Court to refer to and rely upon the first Affidavit sworn to herein on the 20th day of December, 1991 as well as Brief to be delivered in support of the appeal in this matter.”

Against this application, learned Senior Counsel for the respondents/defendants, Chief Ajayi, S.A.N., raised the following preliminary objection:-

This Honourable Court ought not to exercise its jurisdiction to hear the prayers contained in paragraphs (ii), (iii), (iv), (v), (vi), (vii) and (viii) has no jurisdiction to hear prayers (ii). (iii) and (v) same ought to be struck out.

AND TAKE NOTICE that the grounds of the said objection are as follows:

(i) The plaintiffs/applicants have refused to comply with and have continued to frustrate and disobey the mandatory orders of the Court of Appeal made on the 5th day of December. 1991 and contained in the Ruling of the Court of the same day and which is at pages 191 – 239 of the Record of Proceedings compiled by the plaintiffs particularly at page 225 thereof.

(ii) The prayers contained in paragraphs (ii). (iii). (iv) and (v) are in effect asking the Supreme Court to:-

(a) bye-pass the procedure by way of appeal prescribed by the Constitution of the Federal Republic of Nigeria and to reverse by way of an ordinary motion the decision of the Court of Appeal given on the 5th of December, 1991

(b) Affirm and execute the terms of the judgment of Jinadu J., given at the Federal High Court in Suit No. FHC/L/67/91 and FHC/L/69/81 (Consolidated) on the 1st of November, 1991 notwithstanding the fact that the Supreme Court has no jurisdiction to hear and determine an appeal direct from the decision of the Federal High Court.

(c) destroy and render nugatory the jurisdiction of the Court of Appeal under the Constitution to hear and determine appeals from the decisions of the Federal High Court and thereby deprive the defendants of the right to have their appeal to the Court of Appeal heard and determined by that Court.

(iii) Prayers (ii), (iii) and (v) are incompetent in so far as the application for the same have not previously been made to the Court of Appeal. ”

Before dealing with the arguments of learned Senior Counsel on both sides presented for and against the preliminary objection, I consider it pertinent to give a resume of the facts involved.

The present applicants as plaintiffs, after obtaining leave of the Federal High Court, Lagos, filed an action by way of Originating Summons No. FHC/L/M67/91 seeking for the following reliefs:-

“(I) Pursuant to Section 223 of the Companies and Allied Matters Act 1990 that a Meeting of the Board of Directors of the above named Company may be convened by the Court for the purpose of considering the following matters:-

(i) the purported suspension of the Secretary/Legal Adviser of the Company by the Managing Director

(ii) the administration of the affairs of the Company pending the determination of the action taken by a number of shareholders for the removal of the managing director

(iii) any urgent business which have accumulated during the period of the frustration of board meetings by the Managing Director and 3 other directors

(iv) any other business.

(2) Pursuant to Section 223 of the Companies and Allied Matters Act 1990 that an extraordinary General Meeting of the Company may be convened by the Court for the purpose of considering and if thought fit passing the resolution set forth in the schedule hereto.

SCHEDULE

“‘That Basil O. Ezegbu be and is hereby removed as Managing Director of the Company.”’

(3) That the Court may give directions as to the manner in which each of the said meeting is to be called, held and conducted and all such anciliary and consequential directions as it may think expedient and in particular as to the quorum for the board meeting.”

The present respondents as defendants in FHC/L/M67/91 with the leave of the same Court filed an Originating Summons No. FHC/L/M69/91 also seeking far the following reliefs:-

“(i) The persons who are the members of the 5th Defendant Bank and entitled to attend and to vote at the Annual or Extra-ordinary General Meetings of the said Bank.

(ii) A declaration that the plaintiffs and each of them arc members of the 5th Defendant Bank and are entitled to receive notices of and to attend and vote at all meetings of the said company upon the basis that they are owners of the shares listed opposite their respective names in the Schedule hereto.

(iii) An Injunction restraining the defendants from convening or holding any meeting of the 5th Defendant Bank without giving notice thereof to all the plaintiffs.

(iv) An Injunction restraining the defendants from holding or voting at any Meeting of the members of the 5th defendant Bank without according right to vote to the plaintiffs in respect of the number of shares listed opposite their respective names in the schedule hereto:

SCHEDULE

1. CLETUS M. IBETO 1,000,000
2. SIR TIMOTHY UMEWENI 1,000,000
3. JOSEPH C. EZEOKOLI 1,000,000
4. BONIFACE EZENWOYE 1,000.000
5. ERIC NWOBI 10.000
6. JOSEPH ONYEJEPU 1,000,00
7. MRS. SERAH U. EZEOKOLI 1,000,000
8. EMMANUEL EJIKE 500.000
9. MRS FRANCISCA N. IBETO 1,000,000
10. JOSIAH ENUMA 500,000
11. CHIEF PIUS OGUJIUBA 1,000.000
12. HOPE O. OBIORA 633,750
13. PAUL NWANGWA 643.750
14. MARTIN O. EZEAFULUKWE 1,000,000
15. AUGUSTINE NNABUCHI 1,000,000
16. MRS. MARTHA U. UMEWENI 1,000,000
17. ALPHONSUS ANULIGO 500,000
18. MRS AMAKA EZENWOYE 1,000,000
19. JASPER MBADUGHA 500,000
20. EDWIN MOEMENAM 1,000,000
21. GODWIN OKAFOR 1,000,000
22. MICHAEL OFORMA 252.500

TOTAL 17,540,000”

On the order of Jinadu J. to whom the two suits were assigned for trial, the two were consolidated and fixed for hearing after pleadings were filed and exchanged. Pending determination, the learned Judge appointed an Official Receiver to run the affairs of the 1st plaintiff. And at the end of the trial, after considering the evidence adduced and making several findings. he came to the following conclusion.

“I therefore order in accordance with the order sought in the defendants’ originating summons that an extra-ordinary general meeting of the members of the 1st plaintiff be called at which only members mentioned in claim 3 of the plaintiffs’ amended Statement of Claim who are the only members of the 1st plaintiff are to attend including the five defendants adjudged to be members of the 1st plaintiff by this court and the meeting should be convened by the Company Secretary Miss Nkemena and notices thereof must be served on all the 20 shareholders whose names appear in Exhibit B. The meeting should be held within 14days from today with 3 days notices issued to all the 20 members including the five defendants.”

This judgment was delivered on 1/11/91.

Immediately thereafter learned Senior Counsel for the Defendants filed a Notice of Appeal against the Federal High Court decision. The Notice of appeal was dated 4-11-91 and field in the Registry of the Federal High Court on the same date. The Notice of Appeal was served on Chief Williams’ Chambers on 6th November, 1991.

Also on the same4-11-91, Chief G.O.K, Ajayi, S.A.N” learned Counsel for the defendants filed a Motion on Notice before the same learned Judge praying for an order that:

“(i) the order made in the judgment of this Honourable Court for the summoning of a meeting of the members of the 1st Plaintiff/Bank on the basis of the register of members Exhibit “B” consisting of 20 names be suspended until the determination of the appeal lodged herein.

(ii) The affairs of the bank should continue to be run by the existing signatories of the bank under the supervision of the Director of Banking of the Central Bank of Nigeria.

(iii) restraining the 2nd plaintiff in FHC/L/M67/91 and the defendants in FHC/L/69/91 their servants and/or agents from interfering in the day-to-day operations of the bank by its officers and employees or from retaining the keys of the Bank (which they seized on the 1st of November 1991) until the determination of the appeal lodged herein

(iv) directing the 2nd plaintiff to cause the premises of the 1st plaintiff Bank to be re-opened for business and to hand over to the officers of the Bank the keys of the doors, offices and rooms of the Bank to the officers from whom they were seized on Friday the 1st of November, 1991 until the determination of the appeal filed herewith. And for such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.”

The motion on Notice was served on Chief Williams’ Chambers on 5-11-91. The Motion was fixed for hearing on 11th November 1991.

By a notice dated 4-1 1-91 issued out by Chinelo Nkemena (Miss) Company Secretary/Legal Adviser to the 1st plaintiff and published on 6-11-92 in one of the daily newspapers, an Extra-Ordinary General Meeting of the 1st plaintiff was called to hold on 9-11-92 at 11 a.m. at the 1st plaintiff’s premises, ALLCO Plaza Afribank Street, Victoria Island, Lagos. Before the Motion filed on 4-11-91 was heard, the plaintiff proceeded and held the Extra-ordinary General Meeting of the 1st plaintiff on 9-11-91. And when the parties appeared on 11-11-91 to argue the Motion, Chief Ajayi S.A.N., informed the court that despite the service of the then pending motion, the plaintiffs had held the meeting and had taken some far reaching decisions affecting the control and operation of the 1st plaintiff.

When the motion was argued on 11-11-91, the learned trial Judge, in a Ruling delivered on 18-11-91 refused the defendants’ application.

The defendants filed an appeal against the Ruling and also an application in the Court of Appeal praying the court to set aside the proceedings and decisions of the General Meeting of the 1st plaintiff held on 9-11-91 and to nullify any decisions taken and implemented subsequent to the meeting. The defendants specifically prayed in the motion for reinstating all employees of the 1st plaintiff whose appointments were terminated after the said meeting and also to restore the status quo ante of the 1st plaintiff as at the date of the judgment of 1st November, 1991. The Motion was argued before the Court of Appeal at the end of which it ruled in favour of the defendants and granted the orders prayed for, pending the determination of the substantive appeal. It is needless to restate these orders here since I have earlier done so supra.

The plaintiffs appealed against the Ruling of the Court of Appeal and also filed an application for a stay of execution of the orders made therein. The plaintiffs filed two Notices of Appeal, one before the delivery of the Ruling they had appealed against and the other after its delivery.

As a result of the preliminary objection taken by Chief Ajayi S.A.N., Learned Counsel for the defendants, against the procedure adopted by Chief F.R.A. Williams S.A.N., learned Counsel for the plaintiff, the Court of Appeal declared both the Notice of Appeal filed before the delivery of the Ruling of 5-12-91 and the subsequent application for stay of execution, null and void. It however decided that the second Notice of Appeal and the application for a stay of execution both filed on 18-12-91 against the Ruling given by that court on 5-12-91 are valid and pending and that learned counsel for the plaintiffs would be at liberty to move the application for stay upon an application to that effect properly made to the Registry to fix a date for its hearing.

With this application for a stay of execution of the Ruling of 5-12-91 still pending in the Court of Appeal, the plaintiff, brought the present application before this court seeking for reliefs as contained in prayers (ii), (iii), (iv), (v), (vi) and (vii).

Chief Ajayi S.A.N., learned counsel for the defendants filed a Notice of preliminary objection to prayers (ii) – (vii). His arguments are basically that since the plaintiffs are still having a pending application before the Court of Appeal, the present application containing the prayers being objected to is mud-slinging on the face of the Court. He submitted that prayer (iii) in the motion deals with the substantive appeal and that if the prayer is granted it would destroy both the appeal and the application for stay pending in the Court of Appeal. He urged this court not to exercise its power to disable the Court of Appeal from hearing both the appeal and the application for stay and giving a decision on merit on the two. He also contended that since the plaintiffs have refused and are still refusing to enforce the decision of the Court of Appeal, they are not entitled to any hearing until they obey and implement that decision. In support, he cited and relied on the case The Military Governor of Lagos State & 2 Ors. v. Chief E.O. Ojukwu (1986) 1 NWLR (Pt.18) 621 and Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539. He said, to refuse a hearing on an interlocutory relief is not against the spirit of the Constitution when the applicants who are in contempt are simply asking for such relief to continue in their contempt. He cited and relied on Rastico Nig. Ltd. v. Societe Generale De Surveillance (1990) 6 NWLR (Pt.158) 608 at 616D CA. He urged this court to refuse giving hearing to the plaintiffs on particularly prayers (ii).”(iii) and (v) describing them as incompetent and should be struck out.

In reply to the submissions above, Chief F.R.A. Williams S.A.N., for the plaintiffs started by giving a brief account of the events culminating in the orders made in the Court of Appeal Ruling of 5-12-91. He then referred to the case of Lagos State & 2 Ors v. Chief E.O. Ojukwu (supra) and said there are exceptions to the principle laid down in that case, In support of this he cited and relied on the case of Hadkinson v. Hadkinson (1952) CA 289 and Price v. Price (No.2) (1962) NSWR 819 and submitted that where one can appeal, then one call ask for any ancillary order to appeal. He said even if the order of the meeting is suspended, the court must none-the-less have to hear the application.

On the question that the application was not made in the first instance in the court below, learned Senior Counsel referred to and relied on Order 8 Rule 12(3) of the Supreme Court Rules, 1985 in support of prayer (v).

Concluding his submission, learned Senior counsel referred to the withdrawal of a Notice of Appeal filed by the defendants which he submitted is related to the Ruling of the Court of Appeal of 13/7/92 declaring the plaintiffs’ second Notice of Appeal and the application for stay of execution, both dated 18-12-91 and simultaneously filed on the same date. as valid.

In reply to the plaintiffs’ submissions, learned Senior Counsel for the defendant submitted that the present application is not covered by Hadkinson’s v. case supra, as the plaintiffs are not applying to purge themselves of contempt. He submitted that the application brought is to enable the plaintiffs to enforce the order of the High Court which the Court of Appeal set aside: restoring the 1st Plaintiffs status quote ante.

As indicated by learned counsel on both sides, at this stage, this Court is not hearing the substantive appeal. but only dealing with the preliminary objection on whether the plaintiffs are entitled to he heard on their motion, particularly in relation to prayers (ii) – (vii) when they have refused to implement the Court of Appeal decision in its Ruling of 5-12-91.

The short and only main issue for decision in this preliminary objection is whether the plaintiffs are in contempt of the Court of Appeal order made on 5-12-91 to wit-

“1. An order setting aside the proceedings and decisions of the General Meeting of the 1st plaintiff held on Saturday the 9th day of November. 1991.

2. An order nullifying any decisions taken or any implementation thereof and in particular reinstating all employees of the Bank whose appointments were terminated as enumerated in paragraph 26 of the affidavit in support sworn to by Emmanuel Ejike.
3. An order generally restoring the status quo ante before the date of the delivery of the judgment of 1st November 1991 pending the appeal before us,”

The directives of the Court of Appeal in the orders supra are in my view clear and mean what they say. In short it means restoring the status of the parties before the meeting held on 9-11-91 which introduced far-reaching changes in the structure and management of the 1st plaintiff. The orders have the effect of reinstating all the employees of the 1st plaintiff that were terminated as a result of the meeting. The plaintiffs are challenging these orders. It matters not whether these orders are illegal or improper, the plaintiffs are bound by them and have a duty to implement them. They are in my view in contempt of these Court of Appeal orders. As long as the orders subsist and as long as the plaintiffs refuse to implement them, this court will not give them a hearing on the application in relation to the prayers objected to until such a time they purge themselves of their contempt.

As pointed out by learned Senior Counsel for the defendants the present case does not fall within the exception enumerated in Chuk v. Cremer (1846) 1 COOP tem Cott 338, 47 E.R, 820; and cannot therefore be relied upon, The principle in the case supra as set out in its heading is –

“In general, a party in contempt cannot take a proceeding in the cause for his own benefit.”

The facts involved in Chuck’s case are stated in the report as follows:

“The defendant moved before the Vice Chancellor of England that an injunction, granted ex parte, might be disallowed. His application being unsuccessful, he gave notice of motion by way of an appeal. Previously to the notice of motion being given, an attachment was issued against the defendant, who was abroad, for not having put in his answer. Upon the motion being opened, it was objected that the defendant was in contempt and could not be heard and the Lord Chancellor said he was of opinion that the appeal motion could not proceed; that a party was entitled to be heard for the purpose of resisting or setting aside for irregularity any proceedings subsequent to his contempt: hut he was not generally entitled to take proceeding in the cause for his own benefit.”

In Green v. Green (1828) 1 COOP Temp, Cott. 206; 47 E.R, 820, the party was given hearing in order to show, irregularities in the process upon which he was committed, although he had not followed the order upon which he was committed.

Also in Odell v. Hart 1 Moll 429, the defendant was allowed hearing to set aside an order against him by which he was declared to be in contempt because of irregularity in that order.

In Hadkinson v. Hadkinson (1952) CA 285 also referred to by learned Senior Counsel for the plaintiffs, where a wife who was given the custody of the only child to the marriage with the instruction that the child was not to be removed out of the jurisdiction of the court without its sanction. She removed the child to Australia where she was living with her new husband after remarriage. She was ordered to return the child on a summons issued by the father of the child. The woman appealed against the order. Counsel for the father took a preliminary objection that since the mother was still in contempt of the court order the appeal should not be heard. In sustaining the preliminary objection, it was held (per Somervell and, Romer L.JJ)-

“That it was the unqualified obligation of every person against, or in respect of whom, an order had been made by a court of competent jurisdiction, to obey it unless that order is discharged: that the mother in the present case had not brought herself within any of the exceptions to the general rule which debarred a person in contempt from being heard by the court whose order he had disobeyed: and that she being in continuing contempt by retaining the infant out of jurisdiction, her appeal could not he heard until she had taken the first and essential step towards purging her contempt by returning the child within jurisdiction.”

Similarly in the same case, the court referred to a statement made by Lord Cottenham LC in Chuck v. Cremer (supra) that:

“A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that suitor or their solicitors, could themselves judge whether an order was null and void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question; that the cause of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed, it must not be disobeyed.”

(Italics supplied for emphasis)

To my understanding, the exception to the rule applies to situations where a party is seeking for leave to appeal against the order which he is in contempt, or where he intends to show, because of the procedural irregularities in making the order, it ought not to be sustained. The plaintiffs are not bringing the application because of any of the reasons above. In fact there is no order of committal for contempt against them much less to talk of any irregularity in making it, nor have the plaintiffs been denied right of appealing against the order of the Court of Appeal of 5-12-91.

At this stage, I am not prepared to consider the argument whether the Court of Appeal has jurisdiction to make the order as this is one of the issues to be decided in the substantive appeal. Nor am I prepared to discuss the allegations and counter allegations of using force by either party as this is also an issue involved in the substantive appeal.

Suffice it to say at this stage that having considered the arguments for and against the preliminary objection. I am of the view that the plaintiffs being in contempt of the Court of Appeal order of 5-12-91, they are not entitled to be heard on their present motion.

If I may quote the dictum of Denning LJ cited in Hadkinson v. Hadkinson, (supra) that-

“The fact that a party to a cause who had disobeyed an order of the court was not of itself a bar to his being heard, but if his disobedience was such that, so long as it continued, it impeded the course of justice in the cause, by making it more difficult for the court to ascertain the truth or enforce the order which it might make, then the court might in its discretion refuse to hear him until the impediment was removed. The present case was a good example of a case where the disobedience of the party impeded the course of Justice.”

(Italics supplied for emphasis)

I adopt this dictum and apply it to this case. It is a good example where the refusal of the plaintiffs to implement the Court of Appeal orders impeded the course of justice.

As shown in Ojukwu’s case supra, the plaintiffs, having been put on notice of the defendant’s appeal and his motion to set aside the order of the extra-ordinary general meeting ordered to be held by the Federal High Court, they are duty bound to hold on until the hearing and disposal of the motion. Instead, they went ahead and held the meeting, taking far reaching decisions affecting the defendants. See Vaswani Trading Co. v. Savalakh & Co. (1972) 1 All NLR (Pt.2) 483 at 491.

It is also premature at this stage to discuss the incompetence of any of the prayers, as the application is yet to be moved. I may also add that as far as my search of the records presented before this court is concerned, the plaintiffs’ application for a stay of execution that has been declared to be valid by the Court of Appeal in its Ruling of 13th July 1992 is still pending before that court.

On the whole I have come to the conclusion that the plaintiff are not entitled to be heard on the prayers objected to until they have implemented the Court of Appeal order of 5-12–91. The preliminary objection is well founded and is accordingly sustained.

As long as the plaintiffs remain in their contempt of disobeying: the Court of Appeal orders, this Court will not afford them hearing: on prayers objected to in their application; Odugwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 and The Governor, Lagos State & 2 Ors. v. Ojukwu (1986) 1 NWLR (Pt.26) 39.

The plaintiffs shall pay N100.00 as costs to the defendants.A. G. KARIBI-WHYTE, J.S.C.: I have read the ruling of my learned brother A.B. Wali, J.S.C.. I agree with the reasoning, and his conclusion that the objection be sustained.

The facts have been comprehensively and lucidly stated. I stated. I will therefore not repeat them. I adopt them. I am concerned in this ruling with the objection raised against the hearing of the applicants in respect of prayers II, III, V, in this application seeking inter alia, the order of this court to amend the notice of appeal,

On the 5th December, 1991, the Court of Appeal in its ruling made the following orders:-

1. Setting aside the proceedings and decisions of the general meting of the 1st plaintiff held on Saturday the 9th of November, 1991.
2. Nullifying the decisions taken or implementation thereof and in particular reinstating all employees of the Bank whose appointments were terminated as enumerated in paragraph 26 of the affidavit in support sworn by Emmanuel Ejike.
3. Restoring the status quo ante of the delivery of the judgment on 1st November, 1991 pending the appeal before the court.

Applicants have appealed against these orders. In their application dated 11th May.

“(i) granting leave to amend the Notice of Appeal filed herein against the decision of the Court of Appeal made on 5th December, 1991 by deleting paragraph 4 thereof and substituting a new paragraph 4 as disclosed in paragraph 19 of the affidavit in support of this application;

(ii) directing that the shareholders of the First African Trust Bank Limited shall be at liberty to convene an Extraordinary General Meeting of the Company or alternatively that this Honourable Court shall direct that such a meeting be convened for the purpose of considering, and if they thought fit, passing the resolutions which were passed by a meeting of the shareholders of the said Bank on 9-11-91 but which resolutions were set aside by the Court of Appeal Lagos in its decision made on 5th December, 1991;

(iii) directing that the shareholders to attend such meeting shall be those found by the Federal High Court to have been the true shareholders of the Bank in its judgment delivered herein on 1-11-91;

(iv) in the alternative to prayer (iii), for an accelerated hearing of the appeal herein as well as the motion filed herein and dated 10-12-91 filed on behalf of the defendants in Suit No, FHC/L/M67/91;

(v) restraining the defendants (in Suit No, FHC/L/M67/91) whether by themselves, their servants or agents whomsoever from –

(a) interfering or attempting to interfere with the management or operations of the First African Trust Bank Limited by the present Management Staff, or

(b) making use of violence or force to install themselves or their agents as managers or operators of the banking business of the said First African Trust Bank Limited; without allowing the proceedings in respect of the application of the plaintiffs (in Suit No, FHC/L/M67/91) for stay of execution to be determined by this Honourable Court in case the court below should refuse to entertain or to grant the same;

(vi) directing that Briefs of argument be filed by the parties in respect of the reliefs sought herein in this motion-an-notice;

(vii) deeming the Brief filed and delivered by the plaintiffs in Suit No, FHC/L/M67/91 to have been duly and properly filed;

(viii) making such further or other orders or giving such further or other directions ancillary to the foregoing, as this Honourable Court may deem fit to make or give.

AND FURTHER TAKE NOTICE that the grounds for praying for the following reliefs are as follows:-

1. Prayer (i) is necessary for the furtherance of Justice and Fair Hearing of the substantive appeal pending before the court below;

2(a) Prayers (ii) and (iii) are to meet the requirements of the Banking and Other Financial Institutions Decree, 1991 failure to meet which will put an end to the operation of the banking business of the First African Trust Bank;

(b) Prayers (ii) and (iii) are also necessary to ensure that the appeal herein, if successful, is not rendered nugatory or eroded by irreparable damage;

(c) In the face of the Order of the court below generally restoring the status quo ante before the date of the delivery of the judgment on 1st November, 1991 it is impossible and/or impracticable to apply to that court for the reliefs sought in prayers (ii) and (iii);

3. Prayer (iv) is necessary for the furtherance of Justice and in the interest of both parties to the appeal;
4. Prayer (v) is necessary so that the parties therein mentioned-

(a) do not foist a fiat accompli on the Supreme Court, or

(b) frustrate to render nugatory any order which the Supreme Court may make in relation to the exercise by the Court of its jurisdiction to entertain the application of the plaintiff(in Suit No. FHC/L/M67/91) for stay of execution of the decision made by the Court of Appeal on 5-1291 pending the appeal from that decision;

5. Prayers (vi), (vii) and (viii) are necessary for the furtherance of Justice.

AND FURTHER TAKE NOTICE THAT at the hearing of this application the applicants will crave the leave of this Honourable Court to refer to and rely upon the first Affidavit sworn to herein on the 20th day of December, 1991 as well as Brief to be delivered in support of the appeal in this matter’”

Chief G.O.K. Ajayi, S.A.N., has raised a preliminary objection to the hearing of the prayers sought in respect of paragraphs (ii) (iii) (iv) (v) (vi) (vii) and (viii) on the ground of lack of jurisdiction. The objection in respect of (ii) (iii) and (v) is on the ground that the applicants being in disobedience of the Order of the Court in respect of prayers sought cannot be heard unless and until the orders of the Court have been complied with. The Orders of the court disobeyed are the Orders in the Ruling of the 5th December, 1991, subject matter of the ruling pending in the Court of Appeal. The facts are not in dispute. They have been admitted. Applicants are not disputing that they have not complied with the orders of the Ruling dated 5/12/91.

The contention seems to be that they have appealed against that ruling, and that an application for stay of execution or that ruling was pending in the Court of Appeal.

Prayers II, III, and V, arc claimed to be necessary to ensure that the appeal, if successful, is not rendered nugatory or eroded by irreparable damage.

In his preliminary objection Chief G.O.K. Ajayi, S.A.N., submitted that prayers (II) and (III) dealt with the subject matter of the substantive appeal, and if granted would destroy both the appeal and the application for stay of execution pending in that court. It was submitted that the applicants have refused to obey the Orders of the Court and are not entitled to hearing until they obeyed and implemented that ruling. Chief Ajayi cited and relied on Military Governor Lagos State & 2 Ors v. Ojukwu (1986) 2 S.C. 277 (1986) 1 NWLR (Pt.18.) 621. Odogwu v.Odogwu (1992) 2 NWLR (Pt.225) 539. Applicants are asking for a relief while continuing in contempt. It is not against the spirit of the Constitution guaranteeing fair hearing to refuse hearing in the circumstance – The recent decision of Rastico Nig. Ltd. v. Societe General de Surveillance (1990) 6 NWLR (Pt.158) 608 was cited in support of the proposition.

In his reply, Chief Williams S.A.N. referred to the background facts to the application and submitted that there are exceptions to the principles in the Ojukwu case. He contended that in appealing against a decision not complied with, an ancillary order to the appeal could be sought. He argued that even if the order of the meeting was suspended, the Court must none-the-less, have to hear the application. He relied on Hadkinson v. Hadkinson (1952) 2 All E.R. 567 and Price v. Price (No.1) (1962) NSWR.819.

Chief Ajayi’s reply to this contention was that the application before us was not brought to purge applicants of their contempt, but to enable them enforce the Order of the High Court set aside by the Court of Appeal. It cannot be an exception to the general rule.

The point of law I am concerned with in this ruling is whether Applicants whilst still in disobedience of the Orders of the Court of Appeal arc entitled to hearing in respect of the prayers seeking to set aside the orders and restoring the Orders of the Federal High Court.

Chief Ajayi, S.A.N. has pointed out, and I agree with him that the application before us is not appealing against the Orders of the Court of Appeal. It is also not aimed at purging applicants of their contempt. It is, if granted, tantamount to setting aside the Orders of the Court of Appeal, and restoring the judgment of the Federal High Court. This is what the applicants are also seeking in the appeal against the Orders.

It is of crucial importance that the ruling of the Court of Appeal is a subsisting decision. The appeal against it is still pending. There is no Order of the Court granting a stay of execution of the ruling. The applicants no doubt are challenging the Orders in a different proceeding by way of appeal.

The preliminary objection of Chief Ajayi is on the common law ground that applicants being in disobedience of an order of Court, and in continued disobedience, ought not be heard in respect of the application before the Court. This is well settled and accepted.

The right to be heard in our courts of law or tribunals is fundamental and guaranteed under our Constitution. At the same time, the Constitution vests in the Courts all inherent powers and sanctions of a Court of law, see S.6(6)(a) Constitution, 1979. These unspecified common law powers enable the courts to enforce their decisions and to do justice according to law between litigants coming before them.

The common law principle precluding persons in disobedience of the Orders of the Court from being heard in respect of the matters in which they stand in disobedience is well settled see Hadkinson v. Hadkinson (1952) 2 All E.R. 567. There are a few exceptions to this general rule. The principle however does not apply to applications challenging the order on the ground of lack of jurisdiction – See Gordon v. Gordon (1904) P.163. There is a clear distinction between the right to be heard in defence of the order made and the right to enforce an order whilst in disobedience – See Barker v. Dawson (1836) I Coop.207. The right to be heard is clearly different from the right to enforce a right whilst still in disobedience – See Ojukwu v. Lagos State (1986) 2 S.C. 277 (1986) 1 NWLR (Pt.18) 621.

The contention of Chief Ajayi is that applicant should not be heard in respect of the prayers whilst still in disobedience of the orders of the Court of Appeal. This contention is founded on the common law principle that a party in contempt cannot take a proceeding in the cause for his own benefit. – See Chuck v. Cremer (1846) 1 Coop. temp. (ott. 338, 4TER820,)

I have referred to the fundamental right to hearing guaranteed under our Constitution. This right overrides and supersedes any common law principle precluding hearing in any circumstance. However, whereas, a contemnor is entitled to be heard even in respect of a matter in which he is in contempt. it is a clearly different consideration whether he is entitled to the discretion of the court whilst in continuing disobedience of its orders.

I take liberty to repeat what I said in Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 at p.556.

“The high judicial policy involved in this application is whether our courts ought to exercise their discretion in favour of a person who has remained in continuing disobedience of their orders and has sworn to remain so defiant without showing that the court has no jurisdiction to make the orders disobeyed.”

In my respectful opinion, the rule precluding hearing a contemnor before the court is founded on this principle.

Applicants are seeking in the prayers to enforce the ruling of the Federal High Court, already set aside by the ruling of the Court of Appeal dated 5/12191. Applicants have not shown that there has been compliance with these Orders. The application before us is not a challenge to the jurisdiction of the Court of Appeal. I am sure that the Constitutional powers vested in this Court is with a view to the regulation of its proceedings, protection of its dignity and the effective administration of impartial justice, is entitled and indeed obliged to refuse that its process should be treated with levity, disdain and indifference.

I am satisfied that applicants are still in disobedience of the Order of the Court of Appeal made in the ruling of the 5th December. 1991. The application before this Court is not challenging the ruling even if it is ancillary to the appeal. It is not a hearing of the appeal. Applicants are accordingly not entitled to be heard in the exercise of the discretion of this court in respect of the prayers seeking to reverse the orders made in the ruling to which they are still in continued disobedience.

I will therefore sustain the preliminary objection of Chief G.O.K. Ajayi, S.A.N. which is well founded. Applicants who are in disobedience of the Orders of the Court of Appeal are not entitled to a hearing in this application concerning those Orders.

Applicants shall pay N100 as costs to the respondents.

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SC.317/1991(-R)