Leaders & Company Ltd. & Anor V. Mrs. A. S. Kusamotu (2003)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
The respondent in this appeal felt aggrieved by allegations made against her by the appellants. The allegations were published in the 21st August, 1995 edition of “This Day” Newspaper.
She went to court in respect of the allegations as published.
Respondent claimed that the publication was libelous. The court, Lagos State High Court, Justice Moni Fafiade presiding, upheld respondent’s claim. She was awarded N2.5 million damages against the appellants with N5,000.00 costs. Judgment was given ex parte the appellants. The judgment is dated 19th April, 1996. Execution of the judgment was levied on 28/6/96.
After withdrawing earlier applications for the same purpose, appellants in their application dated and filed 1st July, 1996, sought the lower court’s order to set aside the judgment obtained in their absence and the execution levied. Respondent’s counsel raised a preliminary objection to the hearing of this application. Mr. Oluyede drew the attention of the court in the process to some ‘contemptuous publications’ in the ‘This Day’ edition of 29th June and 4th July, 1996 describing the judgment of the court against the appellant as a ‘faulty judgment.’
Mr. Aluko for the appellants apologized and informed the court that a correction of the lapses observed by respondent’s counsel had in fact been carried in that day’s edition of the newspaper. That very day, 23rd July, 1996, the court ordered that “a conspicuous publication of the correction on the front page of the same newspaper should be made boldly correcting the publication described by the counsel as an error.”
The court declined entertaining the appellants’ application because appellants as further pointed out by respondent’s counsel had not paid the costs ordered against them. A condition which the court ordered appellants must comply with if they were to be heard.
Appellants eventually paid the cost.
Appellants renewed their bid to move their application on 17/9/96.
Respondent’s counsel renewed their objection to the hearing of same.
Counsel submitted to the court that the retraction contained in the 24th July, 1996 edition of the “This Day” Newspaper had not been in compliance with the courts order of 23rd July, 1996. The court upheld counsel objection and ordered the appellants to comply by publishing yet another retraction of the publications of 29/6/96,4/7/96 and 24/7/96.
Appellant’s first appeal dated 30/9/96 was against this order of the lower court dated 17/9/96 for a further retraction. The notice of this appeal contains three grounds.
By 10th October, 1996, to which date further proceedings were adjourned, appellants had not published the retraction they were ordered to. The court’s attention was drawn to this fact. The court ordered that appellants attend court on the date to which the matter was adjourned to show cause why they should not be held liable for contempt. The matter was adjourned to 16/10/96.
The appellants felt aggrieved by this order. They appealed against it. This 2nd appeal of theirs was filed on 18/10/96. A motion for the stay of the execution of the court’s order of 17/9/96 was said to have been filed.
On the 16/10/96, the court further ordered bench warrant for the arrest of appellants who neither attended court in compliance with the court’s order of 10/10/96, nor published a further retraction as commanded by the court on 17/9/96.
Appellants 3rd appeal flows from the lower court’s order for the issuance of bench warrant against them to be brought to court to show cause why they should not be ‘committed’ for contempt of the court.
By order of this court, dated 12/6/96, the three appeals filed by the appellants have been consolidated.
Respondent has filed a notice of preliminary objection as to the competence of the three appeals. Principally, it is argued that all the three being interlocutory appeals with all the grounds to the respective notices being other than grounds of pure questions of law, are incompetent. The appeals had been filed without the necessary leave of court. Learned respondent’s counsel referred to the decision in Ogbechie and Onochie (No.1) (1986) 2 NWLR (Pt.23) 484 at 490 – 492. Furthermore, the 2nd and 3rd appeals being follow-up to the 1st appeal constitute abuse of process of this court.
Filing of the two subsequent appeals, it is contended, exposed appellants’ penchant in stultifying proceedings in the lower court.
Counsel relies on Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156. It is urged that the appeal be dismissed for incompetence.
Appellants think differently. Their counsel has submitted that all the grounds in their three appeals raise pure questions of law making leave unnecessary for their competence. Counsel submits further that their first appeal questions the construction which the lower court placed on the publication of 24/7/96 edition of the “This Day” Newspaper against the back ground of the court’s order. The inference which the lower court drew from these documents form the basis of the first appeal.
The two other appeals, by their various grounds, counsel contend, raise the legal issue as to whether in law it was correct for the lower court to require compliance with its orders before hearing the appellants. These, it is submitted, are questions of pure law. The decisions in U.B.A. v. G.M.B.H. (1989) 3 NWLR (Pt. 110) 374 at 399 and Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (Pt.724) 369 have been cited and relied upon by the appellants.
They urge that the preliminary objection be overruled.
Are the appeals competent?
It is not in dispute that all the three appeals that have been consolidated are interlocutory appeals. All the orders of the lower court being appealed against have not finally determined the rights of the parties. As far as the different orders go, the Judge that issued them was yet to become functus officio.
Appeals against such orders which are not final by virtue of section 241(1)(b) of the 1999 Constitution would only lie as of right if the ground of appeal involve questions of law alone. Where the grounds of appeal involve questions other than pure questions of law, leave of either the court of trial or the court of appeal must be obtained. Failure to obtain leave is fatal and renders the appeals incompetent.
It is significant to note that if there are many grounds of appeal filed and only one of the grounds is a ground of law alone, the existence of the lone ground is sufficient to sustain the appeal. In the subsequent instance, no leave need be obtained. See Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (Pt.496) 643 at 654; Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299.
It is not in dispute also that no leave of either the lower court or the Court of Appeal had been obtained before the three appeals were filed.
So what are the nature of the grounds of appeal upon which the various appeals hinge? Are there any of these grounds in the respective appeals that were purely grounds of law to sustain the otherwise incompetent appeals?
Having given the ground of appeal in respect of the 1st appeal at pages 225 to 232, the 2nd appeal at pages 236 – 239 and 3rd appeal at pages 298 – 301, I am of the firm view that all the grounds are at best on mixed law and fact.
All the three grounds of appeal pertaining the 1st appeal seem to question the correctness of the lower court’s appraisal of facts. The court with proper appraisal would have found that the retraction published in the “This Day” edition of 24/7/96 had compiled with the court’s order of 23/7/96. Such grounds which challenge the finding of fact by the trial court raises issues of fact rather than pure questions of law.
Although the two grounds each in respect of the 2nd and 3rd appeals question the legality of the two orders the trial court issued against the appellants, answers to these questions would only emerge after due consideration of the facts that led to the said orders. Grounds of appeal raising such questions cannot be said to be on pure questions of law. See Maigoro v. Garba (1999) 10 NWLR (Pt.624) 555 at 573 and Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484.
The objection raised by the respondent is meritorious. The appeal having been filed without the leave of court and not being on questions of law alone are incompetent.
However, in case my assessment of the grounds is wrong, the consolidated appeal is hereunder considered on its merits.
A total of seven issues, three in respect of the first appeal and two each in respect of the 2nd and 3rd appeals have been formulated by the appellants. The three issues for the determination of the first appeal are as follows:
(1) Whether the publication in the “This Day” Newspaper of 25th July, 1996 edition complies with the order of the lower court made on the 23rd July, 1996.
(2) Whether the learned Judge was correct in holding that it is after the further retraction by the appellants of the publications in question that the appellants will be entitled to pursue remedy in her court.
(3) Whether the manner in which the proceedings of 17th September, 1996 were conducted led to a denial of fair hearing to the appellant.
In respect of the 2nd appeal appellants formulated the following issues;
(i) Whether the order made on 10th October, 1996 that the defendants should appear before the lower court to show cause why they should not be committed for contempt of court was properly made in this case.
(ii) Whether the learned trial Judge was right in making the order that the appellants should show cause why they should not be committed over their refusal to carry out the further retraction of the publication in question notwithstanding the fact that the appellant’s solicitors had drawn the attention of the learned trial Judge to the fact that the appellants had appealed from the order for further retraction?.
The two issues formulated by the appellants in respect of their 3rd appeal are:
(i) Whether the learned trial Judge was right in making an order directing that bench warrant be issued for the apprehension of the edition of “This Day” Newspaper and Mr. Nduka Obaigbena the 2nd appellant therein?.
(ii) Whether the learned trial Judge was right by failing to uphold the defendant’s contention that their motion for stay of execution and/or further proceedings brought to suspend enforcement pending appeal of her ladyship’s order of 10th October, 1996 ought to be heard.
On respondent’s part the following three issues have been formulated for the determination of the consolidated appeals:
(1) Whether the Honourable trial Court by its ruling of 17th September, 1996 acted within its vires in giving the defendants/appellants another chance to comply with the order of Silva, J., of 23rd July, 1996 and adjourning their applications to a date when the defendants were expected to have compiled with the said order.
(2) Whether the learned trial Judge had jurisdiction to proceed with a trial of the defendants for contempt in the circumstances of her record by ordering them to appear in court to show cause as to why they should not be committed.
(3) Whether the learned trial Judge in the circumstance of her record, validly ordered the issue of bench warrants for the arrest of the defendants for non-compliance with her order requiring them to appear in court to show cause?.
In arguing their first appeal, appellants contend that the retraction contained in the 24th July, 1996 edition of “This Day” Newspaper had fully complied with the lower courts order of 23rd July, 1996.
It was a bold and conspicuous publication on the front page as ordered. In any event, the lower court’s order of 23rd adjudging publication contained in the 29th June, 1996 and 4th July, 1996 editions of the newspaper was wrong in the first place. The two publications were errors and errors do not constitute contempt of court. Appellants counsel has referred us to the case of R. V.Commissioner of Police of the Metropolis (1968) 2 QB 150.
It is further contended in appellants brief that their preclusion from being heard even where it is conceded that the publications were contemptuous was wrong for two reasons. Firstly, the contempt was not such that constituted any impediment to the due course of Justice. Secondly the preclusion breached their right to fair hearing.
Decision in Ifeadi v. Atedze (1995) 5 NWLR (Pt.394) 196, Mobil Oil Nigeria Ltd. v. Assan (1995) 8 NWLR (Pt.413) 129; Nnamani v. Nnamani (1996) 3 NWLR (Pt.438) 591 have been cited and relied upon by appellants.
In respect of their 2nd and 3rd appeal, appellants have contended in their brief that the court’s orders, one directing them to attend court on their own and the other that they be forcefully arraigned before the court had issued on the assumption that the publications complained of by respondent’s counsel were contemptuous.
Appellants submit they were not. But assuming without conceding they were, it is further contended, the court lacked the jurisdiction to try them for contempt that was committed ex facie. The issuance of the two orders inspite of the court’s knowledge of the subsisting appeal against its earlier orders was therefore illegal. In support of this position, the following have been referred to: Deduwa v. The State (1975) 1 All NLR 1; Fawehinmi v. State (1990) 5 NWLR (Pt.148) 42; Ezegbu v. First African Trust bank (1992) 1 NWLR (Pt.216) 197; Odogwu v. Odogwu (1992) 2NWLR (Pt.225) 539 and Muhammed v. Olawunmi (1993) 4 NWLR (Pt.287) 254.
Appellants have urged that the consolidated appeal be allowed. In arguing the issues they formulated, respondent first argued that this court is in no position to resolve the issues raised by the first appeal. Respondent submits that whether or not the publications complained of by the respondent’s counsel constituted contempt or that the retraction contained in the 24th July edition of the “This Day” Newspaper had complied with the lower court order of 23rd July, 1996 requires examination of the publications against the background of the relevant orders. The publications are not before this court making it impossible for this court to resolve the issue.
Appellants’ issue on this, in the absence of the vital materials becomes incompetent. Respondent has supported this argument by referring to Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661.
Respondent has supported the lower court’s two orders which gave rise to the 2nd and 3rd appeals. Once appellants have persisted in their contempt, the court would be right to adopt the procedure it resorted to. Respondent submits that appellants were not covered by any of the exception to the principle enunciated in Rastico (Nig.) Ltd. v. Sas (1990) 6 NWLR (Pt.159) 671. Instead, the decision in the case of the Military Governor of Lagos State v. Ojukwu governs the instance of the appellants and does justify the two orders of the lower court.
Respondent further argues that the first orders of the lower court were made by Silva, J. The two subsequent orders for the enforcement of these and by a different Judge made the two orders lawful. The argument that same could not have been issued because the contempt was ex facie the court therefore collapses. Such contemptuous the authority of Abiegbe v. R.TA.C. (1992) 5 NWLR (Pt. 241) 366 at 380 may be summarily tried.
Lastly, respondent contends that appellants’ right to fair hearing had not been breached. Appellants were not shut out as asserted.
The lower court only imposed some conditions which appellants could comply with but chose not to. Respondent cites the decision in X Ltd. v. Morgan Gramplan (Publishers) Ltd. (1990) 2 WLR 1000 at 1015. Respondent urges for the dismissal of the appeal.
There is the need to restate the facts of the three appeals to enable us fully appreciate the issues raised by the consolidated appeal.
The lower court had felt certain words published in “This Day” Newspaper about the conduct of trial involving the parties in the instant appeal then before the trial court were contemptuous of the court. The court was asked that the impression conveyed by these publications be rectified. This order was made on 23/7/96. The order still persists and no appeal has been lodged against the said order.
A subsequent order of the lower court on the appellants to publish a better retraction than the one attempted on 24/7/96 was made on 17th September, 1996. Appellant’s first appeal is against this order. The 2nd and 3rd appeals are against the order of the lower court dated 10th October, 1996 and 17th October, 1996 respectively. The order of 10th October, 1996 decreed that appellants appear before the court at the next adjournment to show cause why they should not be committed for not complying with the order of 17th September, 1996.
The order of 17th October, 1996, followed appellants persistent failure to comply with its orders of both 17th September, 1996 for retraction of the contemptuous publications and 10th October, 1996 to appear before the court to explain why committal proceedings should not be taken against them.
Given this background, it would seem that the very many issues formulated by the appellants regarding the instant appeal were uncalled for and unnecessary. Also arguments advanced in pursuit of these issues were most irrelevant.
It must be appreciated that the record of appeal does not contain the fact of any order of committal issued by the lower court against the appellants. True by the court’s decision of 23rd July, 1996, the court had found the words contained in the editions of 29th July, 1996 describing its judgment as “faulty” and hurriedly and illegally executed, contemptuous.
This is far from saying that the appellants had by that very decision or even the subsequent decisions of the same court of 17th September, 1996, 10th October, and 17th October, 1996 been found liable for the offensive words that had been published. The order of the court dated 10th October, 1996 which brought about the 2nd appeal of the appellant was not more than an invitation to the appellants to come and explain why they should not be liable for failing to comply with the court’s order of 17th September, 1996 and by extension held guilty for the offensive publications. The court’s order of 17th October, 1996 which provides appellants the reason for their 3rd appeal seeks to forcefully bring appellants to court after their failure to honour the invitation extended to them by virtue of the court’s order of 10th October, 1996.
Of course, there had been pending applications filed by the appellants seeking that the judgment entered against them and in their absence which judgment was also executed, be set-aside along with the execution already levied. The court declined entertaining these applications because of the intervening circumstances already recounted in this judgment. It seems to me that the most apposite set of issues to tackle the problems the instant appeal seem to have raised would be as hereunder stated:
(a) Is the retraction published in the edition of the 24th July, 1996 of the “This Day” Newspapers sufficient compliance with the order of the lower court of 23rd July 1996 that decreed it?
(b) Are the lower court’s orders of 10th October, 1996 commanding the appellants to attend court to show cause why they should not be committed for contempt and the order of 17th October, 1996 sanctioning the arrest of appellants for the same reason lawful?
(c) Was the lower court right to have precluded appellants from being heard in respect of their pending applications seeking to set aside the judgment and execution of same against them?
I shall consider the arguments advanced by parties to this appeal in the light of the foregoing issues.
Appellants have argued that the retraction contained in the edition of 24th July, 1996 of the “This Day” Newspaper had compiled with the court order of 23rd July, 1996 such that the need to publish further retraction did not arise. Secondly, the contemptuous publication complained about in the 29th June, 1996 and 4th July, came about as a result of errors and errors do not make for contempt of court.
It is not possible to see it the appellants’ way. Whether or not the retraction contained in the July 24th, 1996 edition of the “This Day” Newspaper had been a full compliance with the lower court’s order of 23rd July, 1996 requires our consideration of the published retraction against the background of the relevant order. The said publication had neither been exhibited at the lower court nor had leave of this court been obtained to create access to the document for the purpose of the evaluation asked of us. It is not possible, therefore, to resolve this particular issue in the absence of this vital document, see Onibudo v. Akibu (1982) 7 SC 60. The appellants whose burden it is to provide this court with the necessary materials for the resolution of the issue and has failed to supply them cannot press the said issue. Appellants cannot also be obliged on the basis that the publication of 29th June, 1996 complained about was an error for the same reason. That publication, too, has been exhibited at the lower court nor has same been lawfully provided for our examination.
Furthermore, the issue whether or not the publication of 29th June, 1996 was an error was neither canvassed at nor was same decided by the lower court. A matter not raised at the court of trial but raised for the first time at the Court of Appeal can only be argued as a fresh issue after leave of the court had been obtained. In the instant case the issue whether or not the “error” as contained in the publication of 29th June, 1996 could constitute the contempt which the trial court held the publication to be cannot be pursued for same issue had not featured at the trial court; See Ezekude v. Odogwu (2002) 8 NWLR (Pt.784) 366 at 373 and Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684, (2000) 12 SC (Pt.1) 99.
Both sides to this appeal have argued the appeal on the assumption that appellants were contemnors. This is not the case.
A contemnor is a person against whom a committal order had been made by the court. Such an order is said to be made where the person accused of the contempt had been tried, found guilty, and sentenced for the contemptuous conduct. See Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458; and Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt.412) 129. In the instant case, appellants had not been tried and convicted for the publication the trial court found contemptuous of it. The court’s order of 10th October, 1996 only invited the appellants to attend court for the purpose of explaining why it should not hold them liable for the publications considered contemptuous. The order of 17th October, 1996 sought to forcefully drag appellants to court after they had refused voluntarily to attend court.
Appellants have submitted that these two orders were illegal.
They cannot be. It must be appreciated that the judicial powers vested in courts by the constitution of this country comprise all the inherent powers and sanctions of law courts. The courts are accordingly empowered to regulate their proceedings, punish for contempt and protect their dignity. Effective administration of impartial Justice makes such empowerment necessary. It consequently becomes obligatory for courts to ensure that processes emanating from them are not treated with levity and disdain. These processes must not suffer the indifference of those against whom they were issued. See Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 at 557 and Ojukwu v. Lagos State Government (1986) 3 NWLR (Pt.26) 39.
In the case at hand, the lower court considered some publications contemptuous of it. It ordered rectification on 23rd July, 1996. Appellants were not unconnected with these publications. The court was not satisfied with the retraction carried in the 24th July, 1996 edition of the same newspaper that carried the injurious publication.
The court ordered better retraction. This was on 17th September, 1996. Appellants were invited to attend court to explain why they should not be convicted for the words adjudged contemptuous on 23rd July, 1996. Appellants refused to ensure rectification. They also refused to attend court to offer required explanation. The trial court issued bench warrant to ensure the presence of appellants in court to explain why they should not be punished for disobeying firstly the order of 17th September, 1996 directing them to publish better retraction than the one published on 24th July, 1996 and secondly for their refusal to attend court on 10th October, 1996.
One wonders how the lower court could have protected its dignity if it was in no position to issue these reasonable orders, which the appellants considered illegal. They were not. It is simply unimaginable that a day would come when courts will allow this type of disturbing and indifferent conduct go unchallenged. God forbids, if such a day comes, the very foundation of adjudication will go under. Anarchy takes over. It is necessary to stress that as long as an order of court subsists, the person against whom it was issued has a plain and unqualified duty to obey such order. As long as the order is not stayed, discharged or set aside the person affected would not be heard to say that the order was irregular or void. See F.A.T.B. v. Ezegbu (1992) 9 NWLR (Pt.264) 132.Appellants must be reminded that an appeal against a decision without more does not operate as stay of the decision that had been appealed against. Beyond the ipsi dexitof appellants’ counsel, there is nothing on record to buttress appellants claim that stay of any of the orders being appealed against had been ordered by either the lower court or this court.
Lastly, appellants have submitted that the refusal of the lower court to hear their applications constituted a breach of their fundamental right to fair hearing. Here again appellants are being misapprehensive of the genuine facts. Respondent is right that the doors of the lower court had not been totally shut against appellants. They were at liberty to move their application after complying with the conditions imposed by the court. These conditions in my firm view were reasonable and not without legal basis. The principle of audi alteram partem which has been enshrined in our constitution does not confer on appellants the absolute right to be heard in all circumstances.
The appellants only require proper opportunity of being heard. The imposition by the lower court of conditions aimed at securing the dignity of the court, which appellants had to comply with before they were heard, did not remove the opportunity that had been given appellants to pursue their cause. There was no impediment on their way. The conditions imposed by the court were such that appellants could have reasonably complied with them. It was no denial of Justice for the seemingly contemptuous appellants to be asked to respect the very court they were asking to give an authoritative decision regarding their substantive matter. As submitted by respondent, the dicta of Lord Oliver Aylmerton in X Ltd. v. Morgan-Grampian (Publishers) Ltd. & Ors. (supra) is exceedingly apposite.
On the whole, I find no merit in this appeal. It is accordingly dismissed with costs of N7,000 against the appellants.
One final word. I find it highly disturbing that a case commenced eight years ago has been stalled by this interlocutory appeal. While appellant’s right of appeal is not in doubt, how the exercise of such a conferred right would impact on the administration of Justice should be the concern of both litigants and the courts.
Perhaps, it is time we have a rethink on the right of appeal in interlocutory matters in view of the unfair use the right has been put to by most litigants these days. We cannot afford to continue having such right exploited negatively with such a devastating consequence.
Other Citations: (2003)LCN/1413(CA)
