Mike Okoye V. Mr. John Ebhodaghe (1999)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C.A.
The real issue for determination in this appeal does not call for a detailed setting of the facts or this case. Be that as it may, it will be helpful to state them briefly. The matter arose from the arrest and detention of one Mr. Udemezue in connection with an alleged unauthorised credit of over Six Million Naira granted by him as the then Manager of African Continental Bank Plc., Nasarawa-Eggon Branch to a customer of the bank. Mr. Udemezue suffered from a fracture of the thigh from an accident in the course of recovering the unauthorized debt. He was treated, but was arrested and detained before the fracture fully healed.
While in detention, a need arose which called for proper medical attention. The doctors serving with the Police Hospital, Lagos issued out at least three medical reports on Mr. Udemezue’s deteriorating health condition and suggested reference to an orthopaedic hospital for further surgery and treatment.
The appellant who happened to be the counsel retained by Mr. Udemezue wrote some letters to the authorities at the Nigeria Deposit Insurance Corporation (NDIC) attaching the Police Medical reports to plead for the release of Mr. Udemezue to seek medical attention as advised in the medical reports. Unfortunately, no prompt favourable response was received from the authorities. Eventually, a belated action was taken, but Mr. Udemezue died.
The appellant then as counsel to late Udemezue wrote to the Attorney General of Lagos State requesting the Attorney-General to prosecute the present respondent, the Managing Director, Nigeria Deposit Insurance Corporation. The Attorney-General of Lagos State did not take any action on the request. The appellant then went to Lagos State High Court and applied for an Order of Mandamus to compel the Attorney-General of Lagos State to charge the respondent for the murder of Mr. Udemezue.
In July 1998, the Lagos High Court granted the leave to the appellant to apply for the order of mandamus. In August 1998, the Lagos High Court ruled that it had no power to compel the Attorney-General of Lagos State to lay the charge. This aspect of the matter is now subject of appeal before the Court of Appeal, Lagos Division.
What followed next was the basis for this appeal. After the ruling of the Lagos State High Court, the respondent caused his Solicitors to institute an action for libel against the appellant. It is worth mentioning at this juncture that the application submitted to the Lagos State Attorney-General by the appellant, contained some materials which the respondent considered libelous of him. Somehow, copies of these papers found their way to the media and were extensively published by many national dailies.
It was on this basis that the respondent caused an action for libel to be instituted on his behalf against the appellant.
An application for leave to issue the writ of summons and serve same out of jurisdiction was heard and granted on 11/12/98 in the High Court of the Federal Capital Territory, Abuja.
The writ of summons to be served out of jurisdiction was filed on 14/12/98. The appellant entered a conditional appearance on 13/1/99. On the same 13/1/99, the appellant filed a notice of preliminary objection, challenging the jurisdiction of the Abuja High Court to entertain the claims before it filed by the respondent.
The actual proceeding giving rise to this appeal took place on 12/4/99. It is a short proceeding of one page. It went on thus: –
“Date: 12/4/99
Suit No: FCT/HC/M/999/98
Between:
Mr. John Ebhodaghe……………… Plaintiff
and
Mr. Mike Okoye ………………….. Defendant
Plaintiff absent.
Defendant in Court
Emeka Agige for the Plaintiff
Defendant/Applicant appears in person.
Applicant Counsel – We have a preliminary objection dated 13/1/99. We seek to move same.
Plaintiff Counsel – We have a publication here from the Defendant. Therefore it should be dealt with first.
Court – My attention has been drawn to the publication which expressedly show that the ruling on 11/12/98 was never given. Hence the editor, and the 2 Lawyers involved should be summoned to show cause why they should not be committed for contempt of this Court. The case is to be adjourned pending then.
Applicant Counsel – We have an objection on jurisdiction.
The issue should be dealt with 1st. See Okorodudu v. NDLEA (1997) 3 NWLR (Pt.492) 221.
Court – The Court order stands.
The case is adjourned to 4/5/99.”
Parties filed their briefs of argument. Based on the 5 grounds of appeal filed, the appellant identified two issues for determination in the appeal. While the respondent formulated one issue. Arising from the respondent’s brief, the appellant filed a reply to the respondent’s brief.
Before I discuss the submissions of learned counsel, it is proper at this junction to deal first with a preliminary objection to the appeal raised by the respondent. There are three grounds of objection, they are as follows:-
(1) That the parties affected by the said Order of the lower Court are not the appellants in this appeal.
(2) That the appellant himself has not been adversely affected by the order of the trial Judge.
(3) That Grounds 2, 3, 4 and 5 of the Notice of Appeal do not flow from the decision complained of thereby making them premature and misconceived.
In moving the preliminary objection, the learned counsel for respondent submitted that the appellant is not one of the parties the trial Court specifically referred to in its order to appear and show cause, the persons referred to in the order are “The Editor and the 2 Lawyers involved.” That these are the proper parties to appeal against the order.
The counsel relied on the provision of Section 222(a) of the 1979 Constitution (The proceedings in question were conducted on 4/5/99. The relevant portion of the Section provides as follows:-
“222. Any right to the Court of Appeal from the decision of a High Court conferred by this Constitution –
(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the High Court or the Court of Appeal at the instance of any other person having an interest in the matter…”.
It is also the submission of the counsel that the appellant was not affected in any way by the order made by the Court.
In answer to the preliminary objection, the appellant relied on the provisions of Section 243(a) of the 1999 Constitution.
I want to observe that the provision of Section 222 of the 1979 Constitution relied upon by the respondent is in pari materia with the provision of Section 243(a) of the 1999 Constitution.
Be that as it may, it is clear from the primed record that the law firm of the appellant is in charge of this matter professionally. The 2 lawyers referred to in the order of the Court are from the same law firm.
The learned trial Judge in making his order did not mention any particular counsel’s name, he merely referred to “the Editor and the 2 lawyers involved.” Since the 2 lawyers, who ever they are, are from the law firm, then the law firm is definitely an interested party and by implication the appellant; as a principal in the law firm. Consequently, the appellant is covered by the provisions of Section 222(a) of the 1979 Constitution. Grounds (1) and (2) of the preliminary objection have no merit and are accordingly dismissed.
The other ground of objection relates to the competence of grounds 2, 3, 4, and 5. It is the contention of the respondent that the grounds are premature, because the substance of the complaints therein did not arise from the decision of the trial Court during the proceedings of 4/5/99.
The appellant on his part maintained that the trial Court had taken a decision by refusing to take the notice of preliminary objection filed by him since 13/1/99. The learned counsel submitted that, that refusal in itself amounted to a decision on its own, and is appealable. He relied on the authority of Western Steel Works Ltd. v. Iron and Steel Workers Union (1986) 3 NWLR (Pt. 30) 617, which laid down the legal proposition that, “a refusal to hear an application amounts to a refusal of the application”.
Learned counsel maintained that since the issue he raised in his notice of preliminary objection is centred on the jurisdiction of the Court to entertain the matter and since the application has been refused by the trial Court by refusing to take it, then he is entitled to make it a ground of appeal. Perhaps, it will be of assistance if I set out grounds 2, 3, 4, & 5 for ease of reference. They are as follows:-
“ii. Error of Law
The learned Trial Judge erred in law when he entertained the Respondent’s action and exercised his judicial powers by granting various orders when the action is incompetent, not properly constituted and the court has not jurisdiction to entertain it.
Particulars of Error for Grounds I & II
a. The ‘Writ of Summons and Statement of Claim showed that the action concerned an alleged libel by counsel and the plaintiff for Words written in the course of proceedings in a Court of Law.
The Appellant has absolute privilege in law and is immune from any legal action which is grounded on anything done in the course of proceedings in court and cannot be confronted with any such libel action.
iii. Error in Law
The Learned Trial Judge erred in law when he made the orders of 12 April, 1999 when there was no jurisdiction in him to make such orders and the Appellant by his Notice of Preliminary Objection challenged the jurisdiction of the court.
Particulars of Error
a. Once the issue of jurisdiction was apparently raised on the Appellant’s Notice of Preliminary Objection, the Learned Trial Judge ought to have resolved that first.
b. The Learned Trial Judge could not make any order on the Appellant and his counsel until the apparent issue of jurisdiction is resolved.
iv. Error of Law
The Learned Trial Judge erred in law by ordering the Appellant’s counsel to show cause why they should not be committed to prison for contempt of court.
Particulars of Error
a. The Appellant and his counsel were never served with Forms 48 or 49 of the Sheriff’s and Civil Process Act, before they were adjudged to have condemned or disobeyed the court.
v. Error of Law
The Learned Trial Judge has no jurisdiction as at 12 April, 1999 to order the Appellant’s counsel to appear before him and show cause why they should not be committed to prison for contempt of court.
Particulars of Error
a. There is nothing in the said order that indicates what contempt the Appellant’s counsel were being cited for.
b. The alleged contempt, if any, was not committed in the face of the court.”
Clearly, the contents of grounds 2, 3, 4 and 5 involve issue much more than the mere refusal by the trial court to hear the appellant’s preliminary objection first, before taking another issue of contempt. It is my view that the decision in the case of Western Steel Works Ltd (supra) is a good law for the facts and circumstances of that case. It is hardly applicable to the facts of this case.
In any case, ground 1 of the grounds of appeal which the respondent conceded is a valid ground deals squarely with the relevant issue for determination in this appeal.
In the circumstances, I am of the view that the contents of grounds 2, 3, 4 and 5 read together expanded the real issue for determination in this appeal far beyond the parameter of this appeal. It will not be possible to determine clearly the validity of some of the issues raised in these grounds of appeal, without the benefit of clear decision of the trial court on them. Any attempt to decide in this appeal the issues raised in these grounds of appeal will amount to speculating what the trial court would have decided. This to say the least is not desirable. I therefore, agree with the counsel for respondent that the issues raised in grounds 2, 3, 4 and 5 are accordingly struck out.
I shall now consider the remaining valid ground that is ground 1. I observed that the appellant did not formulate an issue strictly addressed to ground 1, but mixed it with other grounds particularly ground 2 which was earlier on struck out.
However, the respondent in his brief formulated an issue relatively on this ground. It reads as follows:-
“Whether the learned trial Judge had the power to deal first with matters of contempt in his court before dealing with a pending Notice of Preliminary Objection challenging his jurisdiction.”
Now, because of the way the appellant approached the formulation of his issues for determination of the appeal, the presentation of his arguments followed the same pattern. The result of this is that it is difficult to separate his submissions specifically relating to ground 1. Substantial parts of the submissions are centred on the issue of jurisdiction of the trial court to hear and determine the contempt proceedings as well as the substantive suit which clearly is a premature exercise. However, at the tail end of the brief of argument the appellant submitted that, the issue of jurisdiction having been first raised, the trial court was duty bound to first decide whether it had jurisdiction to entertain the action before proceeding to make further orders. He cited the cases of NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221; and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 in support.
At the hearing of the appeal, the appellant urged the Court to exercise its powers under the provisions of Section 16 Court of Appeal Act Cap. 75 Laws of the Federation of Nigeria 1990 to hear the application not heard by the trial court and strike out the entire suit. He cited the cases of Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15 at 45, and Akpan v. Otong (1996) 10 NWLR (Pt. 476) 108 at 123-124 in support. He finally urged the Court to allow the appeal and deal with the application on jurisdiction.
The learned counsel for respondent contended that the Court should not use its powers under Section 16 of the Court of Appeal Act because the applicability of this Section was not raised either in the grounds of appeal or in the briefs of argument filed by the applicant. In the circumstance the authorities relied upon by the appellant are not in support of his arguments, even if the Court has inclination to apply the provision of the Section.
I think the appropriate place to deal with the applicability or otherwise of Section 16 of the Court of Appeal Act will be at the end. I shall therefore leave the decision on it until then. Now to go back to the core issue of the appeal, that is whether the learned trial Judge erred by refusing to hear and determine first, the notice of preliminary objection filed on 13/1/99. Challenging the jurisdiction of the Court, before going into another issue raised before the Court impromptu on 12/4/99.
It is indeed settled law that issue of jurisdiction is a fundamental matter which can be raised at any stage of the proceedings even up to the final determination of an appeal by the highest Court of the land. See Gov. Anambra State v. Anah (1995) 8 NWLR (Pt. 412) 213; Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt. 199) 550; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 at 420; Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259 at 293.
It is also settled law that, whenever the Court is faced with an objection to its jurisdiction, it has a duty to settle that issue one way or the other before it proceeds to hear the case. The reason being that jurisdiction is a radical and crucial question of competence. See A.G. Lagos State v. Dasunmu (1989) 3 NWLR (Pt. 111) 552 at 566; Fumudoh v. Aboro (1991) 9 NWLR (Pt. 214) 210; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
It is again well settled principle of law that once the jurisdiction of the Court is challenged, it has to be decided first. The Court whose jurisdiction is challenged shall first of all assume jurisdiction to decide whether it has or lacks jurisdiction. See Briggs v. Bob-Manuel (1995) 7 NWLR (Pt. 409) 559; Osadebay v. A.G Bendel State (1991) 1 NWLR (Pt. 169) 525; Barclays Bank of Nigeria Ltd. v. CBN (1976) 1 All NLR 409.
Now applying the settled law to the situation of this appeal, there is hardly any doubt that the appellant stood on good ground for complaining about the manner the learned trial Judge treated his application filed since 13/1/99. When the court resumed sitting on 12/4/99, the record clearly showed that, at the earliest opportunity, the appellant informed the Court that they have a preliminary objection dated 13/1/99 and they wished to move it.
It was after this when the counsel for respondent informed the Court about a publication made by the appellant and that the issue of the publication should be dealt with first.
The learned trial Judge then ruled that his attention had been drawn to the publication and ordered that the Editor and two lawyers involved should appear and show cause why they should not be committed for contempt.
Again, the appellant drew the Court’s attention that they had an objection on jurisdiction and requested that it should be dealt with first. The Court however, ignored him and adjourned the matter to 4/5/99 to comply with its earlier order.
It is clear to me that what the learned trial Judge did went against all the grains of the settled legal principles set out above. A more judicious approach would have persuaded the learned trial Judge to listen to the application challenging his jurisdiction filed as far back as 13/1/99. Since the learned trial Judge did not do that, I cannot find my way in supporting the method he followed.
In any case, issue of contempt has always been a very complicated matter. It should always be borne in mind that dealing with it is like dealing with an offence which is purely sui generis; and a Judge in such proceeding must not put himself in a position of a prosecutor and at the end of it all prospecting to find a person guilty of an offence not described or formulated and dealt with as provided by law, see Deduwa v. The State (1975) 1 All NLR 1.
I hold the view that if the learned trial Judge had adverted his mind to this delicate situation of the law, he would have obliged himself to first deal with the application filed in his Court on 13/1/99 and resolved the all important issue of jurisdiction.
In the circumstances, I find merit in the appeal and accordingly allow it. However, in the circumstances of this appeal, I find myself unable to accede to the request of the appellant to apply the provision of Section 16 of the Court of Appeal Act to treat his application and grant it. The situation of this case does not warrant me to take that step.
In the circumstances, the appropriate consequential order I make is that the appellant should go back to the trial court and move his application filed on 13/1/99.
I make no order as to costs.
Other Citations: (1999)LCN/0547(CA)
