Alhaji Ibrahim Coomassie V. Tell Communications Ltd & Ors (2002)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

In the High Court of Justice of the Federal Capital Territory, Abuja, and in suit No. FCT/HC/CV/33/99, Alhaji Ibrahim Coomassie, the erstwhile Inspector General of Police, as the plaintiff claimed against the defendants, damages for libel. The offending statement was said to have been published in Tell Magazine issue of No. 52 dated December 28th, 1998. The first defendant is the publisher of the Magazine, the 2nd defendant and the third defendant are the reporter and the Editor-in-Chief of the said Magazine, while the 4th defendant was the person, who made the alleged offending statement in an interview which was published as aforesaid. The defendants were all said to be resident at Lagos outside the jurisdiction of the court.

The action was said to be instituted against the defendants on the 5th day of February, 1999 and by an ex-parte application of that date, the plaintiff obtained leave to issue and serve the writ outside the jurisdiction of the court. The ex-parte order was made on the 10th day of February, 1999. Another ex-parte order was made to serve the 4th defendant by substituted means on the 25th February, 1999.

On the 3rd day of May, 1999, the 1st, 2nd and 3rd defendants filed an application praying the court for an order to dismiss the suit for want of jurisdiction in the alternative to set aside the issuance and service of the writ of summons. The reasons given by the applicants, among other reasons, were that the writ of summons was purportedly issued on the 5th of February, before the leave to issue and serve the writ outside the jurisdiction of the court was given. Similarly, the 4th defendant also filed an application praying the court to inter-alia, strike out, the suit on the grounds of jurisdiction. In the counter affidavit the plaintiff caused to be filed, it was stated that the then Registrar of the court, one Mrs. Zainab Aliyu, admitted that she made a mistake in that, though she issued the Writ of Summons on the 11/2/99, after the necessary leave was obtained, she dated some copies of the writ of summons on 5th of February, 1999, because the writ of summons was earlier assessed for payment on the 5th of February.

When the matter came up on the 24th of May, 1999, Mr. Adegboruwa of counsel for the 1st, 2nd and 3rd defendants argued the motion aforesaid. The motion filed by the 4th defendant was also argued by Mr. Tokumbo Onagoruwa of counsel. The learned Counsel for the plaintiff in his arguments against the motions, it is recorded at page 43 of the record of proceedings thus, “plaintiff counsel applies that the writ and services of the writ and or any other writ in this matter should be set aside as prayed by counsel for the defendants”. When counsel for the plaintiff, requested the court to rule on his application to set aside the writ of summons, the court without making a Ruling on the issue recorded at page 43 B “case is adjourned to the 7/7/99 for continuation”. That was on the 24/5/99.

At the resumed hearing on the 7/7/99, the learned Counsel for the plaintiff informed the court that he had filed a notice of discontinuance under the provisions of Order 29 rule 2(1) of the (Civil Procedure) Rules of the court. Learned Counsel for the defendants objected to the competency of the notice to discontinue and urged the court to make a ruling on their arguments in respect of the motions filed by them. The learned trial Judge adjourned the matter to 12/10/99 for ruling. The court delivered its ruling on the 12/10/99 by holding that the plaintiff was entitled to discontinue and held that it was unnecessary to rule on the motions filed by the two set of defendants. Perhaps to understand the reasons for the appeal, it is convenient to record in full what transpired in the court as recorded on page 47 of the record of proceedings after the delivery of the ruling aforesaid:

“The ruling is read. The court grants the plaintiff/applicant’s prayer to discontinue. The case is struck out.

“Counsel to the 4th defendant”

The defendant has been made to come to defend case that is incurably defective. The plaintiff did not withdraw at the earliest possible time, that is 3rd of May, 1999. He made both the court and the learned Counsel for the (sic) onerous rigors and cumbersome hard-work of arguing and recording motions. The counsel for the 4th defendant has been coming from Lagos as senior member of the bar. Documents were filed. The counsel for the 4th defendant asks for N250,000.00 for our appearances” Ebun-Olu Adegboruwa appears late apologises for coming late for the 1st to 3rd defendants, apologies for coming late and requests for N500,000 costs.

Court – Costs usually are not awarded punitively, but in the circumstances that the defendants are based in Lagos and so also is their counsel. The plaintiff had the earliest opportunity to withdraw but he failed to do so.

Costs to the four defendants is assessed at N100,000.00 per defendant. The cost to be paid before any similar suit can be brought against them again; plaintiff counsel is asking for leave to appeal against the issue of costs.

Leave is granted accordingly.”

The plaintiff hereinafter called the appellant has appealed to this court against the order for costs. The amended notice of appeal contains five grounds of appeal. Distilled from the grounds of appeal, the learned Counsel has submitted three issues for the determination of the appeal. The issues are:

1. Was there breach of the appellant’s fundamental right to fair hearing on the issue of costs?
2. Assuming, but not conceding that, there was no breach of the appellant’s right to fair hearing on the issue of costs, did the learned trial Judge exercise his discretion to award the costs judicially and judiciously before awarding the total costs of N400,000.00 (that is N100,00.00 per respondent) to all the respondents.

The learned Counsel for the 1st to 3rd respondents adopted the same issues for determination. The learned Counsel for the 4th respondent did not file any brief and indeed did not appear at the hearing of the appeal even though it was evident that he had been served with all the appeal processes.