Honourable S.o. Ajileye V Honourable E.O. Fakayode & Anor (1990)

LawGlobal-Hub Lead Judgment Report

SULU-GAMBARI, J.C.A.

In this case, the plaintiff/appellant had sued the 1st defendant (Hon. Justice E.O. Fakayode, Rtd.) and the New Nigerian Newspapers Limited as the 2nd defendant in the High Court of Justice, holden at Ibadan, before Hon. Justice Akin. Apara for libel contained in an article in the New Nigerian Newspaper published by the 2nd defendant in the following terms:

“The former Chief Judge said that he first heard of the case in 1982 at a time he was about to determine the appointment of some new Judges and discovered one of those to be considered was involved and as such he raised objection. There Mr. Justice Fakayode further told the New Nigerian that he discovered in the file that the D.P.P., Chief Ajileye, whose name was among those to be screened for the appointments was the very officer who signed the papers of advice to the Governor in the case.

He added that Chief Ajileye admitted that as D.P.P. he did not know if an appellant has such right. He explained that as a result he did not approve the appointment of Chief Ajileye as a Judge but Chief Bola Ige as the then Governor of Oyo State however overruled him and appointed Chief Ajileye as a Judge. By the said words the defendants meant and were understood to mean that: (i) The plaintiff was an incompetent Lawyer. (ii) The plaintiff had given wrong advice to the Governor of Oyo State with the result that persons convicted of murder but who had appealed had been wrongfully executed before their appeal was determined.

(iii) The plaintiff was not competent as D.P.P. of Oyo State. (iv) The plaintiff was not a fit and proper person to be appointed a High Court Judge.’ The plaintiff then claimed for N2,000,000.00K against the defendants jointly and severally as damages for the libel. The plaintiff is Hon. Justice S.O. Ajileye, a retired Judge of the High Court of Oyo State.

He later filed p and served a statement of claim on the defendants. The 1st defendant entered appearance for himself while the 2nd defendant who was represented by a counsel also entered a conditional appearance. On the 14th day of December, 1988, the plaintiff applied under Order 6 Rule l(6)(b) of the High Court Civil Procedure Rules of Oyo State seeking to set aside the conditional appearance made by the 2nd defendant and to enter judgment against it for failing to enter an appearance.

The application was fixed for 23rd of January, 1989. On the 23rd of January, 1989, the plaintiff was present and so was his counsel but none of the defendants was  present nor represented in court. At that stage, the learned trial Judge raised an issue suo motu as contained in his observation which reads as follows:- ‘There is no doubt that under the law, this Court has jurisdiction to adjudicate over this matter. However, considering the special circumstances of this case, particularly the past positions held in this judiciary by the plaintiff and the 1st defendant, and the very nature of the case itself, will it be in the interest of justice for this court, or any other court for that matter in the Judiciary of Oyo State to adjudicate over this matter? That is the question posed. Counsel will address the court on this question.’

The case was adjourned till 31st of January, 1989 for address by counsel for all the parties. On the adjourned date, a letter written by counsel for the plaintiff was produced through the Court Registrar suggesting that the court should refer the matter to the Chief Judge for re-assignment to another Judge. The learned trial Judge directed counsel from the chambers of Chief G.O.K. Ajayi, S.A.N., from where the letter emanated to read out the said letter in court.

The Judge then noted the absence of the 1st defendant while ascertaining that the 2nd defendant was represented by a counsel, Mr. Odutola. Mr. Odutola, learned counsel for the 2nd respondent, submitted that he saw no reason why the court should not continue to adjudicate over the matter and pointed out that the whole matter rested on the discretion of the court.

The court then embarked upon a consideration of the question the learned trial Judge posed earlier on as to whether he as the trial Judge could take the matter at all. He stated as follows:- ‘As the required assistance from the bar is not forth-coming, the court will have to fall back on its own resources.’ At the end, the learned trial Judge came to the following conclusion:-

“The long and short of all this is that in law I have jurisdiction to adjudicate over this matter, but considering the past positions held in this judiciary by the plaintiff and the 1st defendant and particulary the valedictory speech made about the plaintiff by the Hon. Chief Judge, and the fact that I must consider the equal rights to justice of the parties before me, will the ends of justice be served if I adjudicate over this matter. I therefore hold that in the interest of justice, I should not adjudicate over this matter. That is so far as the positions held by the two parties in this case affect this case.

If neither I nor any other court in this State Judiciary will not (sic) take this matter because of the reasons I have adduced, will the door of justice be closed against the plaintiff to seek redress in the court as he has every right to do? The case he has brought is one of libel. The 2nd defendant is the New Nigerian Newspaper, a newspaper which has a very wide circulation in Nigeria.

Anywhere this newspaper, which contained the publication complained of, has been read in the country would be proper venue and the High Court in that State will have jurisdiction to entertain this suit. So, the door to justice in this instance is not being closed against the plaintiff with a dreadful finality. He can take his action to any other State in Nigeria where the New Nigerian Newspaper carrying the publication in question has been read, so that the litigants can have the benefit of a fresh mind applied to the matter.

On all the foregoing, the case of the plaintiff is struck out so that he can institute a fresh action in any other State of the Federation, if he so desires.’ Learned counsel for the appellant filed a brief of argument. Learned counsel for the 2nd respondent also filed a brief of argument. No brief was filed for the 1st respondent. At the hearing of the appeal before us, the 1st respondent was conspicuously absent and no counsel represented him. In short, he did not contest this appeal.

Learned counsel for the appellant postulated only one issue for the determination of the appeal thus:- ‘Whether the fact that the Plaintiff and the first Defendant herein were former members of Oyo State Judiciary deprives the High Court of Oyo State jurisdiction in this case especially having regard to the fact that the learned trial Judge was positive on the question of the courts jurisdiction.’

In his brief, the learned counsel for the 2nd respondent agreed substantially with the content of the submissions of the appellant. I shall have cause  to refer to the submissions of the counsel for the 2nd respondent later on in this judgment. In his submission, learned senior advocate for the appellant challenged the decision of the learned trial Judge striking out the case and directing that the case be prosecuted in another State where the newspaper containing the publication complained against had also been circulated.

He submitted that nobody asked the learned trial Judge for an order striking out the case and parties were not even heard as to whether the suit could be struck out. He further submitted that the learned trial Judge erred in law in failing to try the case having recognized and pronounced that the court had jurisdiction over the matter. He pointed out that the learned trial Judge by referring to the encomiums lavished on the plaintiff at his valedictory send-off and by considering whether there was conflict between the law and justice (which fc does not form part of the issues before the court) has engaged in a self imposed adventure and has thereby created for himself imponderable problems. Learned Senior Advocate further submitted that the learned trial Judge by failing to adjudicate upon the matter before him has thereby abdicated his responsibility.

He ought to have considered the case dispassionately always bearing in mind that the law is no respecter of an individual. The fact that the two parties who were before him had served in the same judiciary before their retirement should not impair their right of action before the court which right is sacrosanctly enshrined in the Constitution, The judicial powers of the court as contained in Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979 shall – ‘extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to his civil rights and obligations of that person.’.. (Emphasis supplied) He then concluded by submitting that it is only in matters where the High court has no jurisdiction that the judicial powers of the court will not be invoked.

Learned senior advocate commented further that though in certain circumstances, certain persons are immune from legal action by reason of their office – see the provision of Section 267(1), (2) & (3) of the 1979 Constitution, the plaintiff and the 1st defendant cannot be said to be covered by such provision. Learned counsel for the 2nd respondent simply endorsed and associated himself with the arguments canvassed by the learned counsel for the appellant in his brief of argument filed in this appeal. He too agreed that the learned trial Judge had abdicated his responsibility by refusing to hear the case properly filed in court.

The 1st defendant at the trial court as has been pointed out before has not participated in this appeal and would obviously abide with whatever decision is arrived at this appeal.

I don’t think I need to consider the issue of immunity or whether the parties are or not immune simply because the learned trial Judge did not say anything concerning immunity of parties and it will be unnecessary to go at any detail or at all on the consideration of the applicability of Section 267(1), (2) & (3) of the 1979 Constitution. The simple answer here is that the parties are not in any way immune to these proceedings. The cardinal point in this case is whether the learned trial Judge having held that the court had jurisdiction was right in deciding that he was personally disqualified to hear the case?

It is noteworthy that the learned counsel for the appellant in a letter said to have emanated from his chambers suggested that by the practice of court and the requirement of fairness, the learned trial Judge ought to have sent the case back to the Chief Judge who by virtue of Order 32 Rule 3 of the High Court (Civil Procedure) Rules of Oyo State may reassign the case to another Judge in view of the fact that the learned trial Judge had taken an impossible position. He submitted also that the learned trial Judge was wrong to have disqualified his brother Judges in Oyo State from hearing the case when he could have referred the matter to the learned Chief Judge for direction and in doing so had thereby encroached upon the functions of the learned Chief Judge of Oyo State. Almost all the complaints levied against the action of the learned trial Judge are valid.

Once the learned trial Judge has determined that the court has jurisdiction unless he is otherwise disqualified, he cannot decline to take the matter other than as by law provided and at least not for the reason he advanced. He might have been motivated by the desire to promote peace and reconciliation among his former colleagues, but the steps he had taken in abdicating his responsibility to adjudicate on the matter and striking out the appellants case (without being asked to do so) are unknown to any accepted legal procedure and practice.

Any person bringing an action shall not be deprived of his right so to do once it is ascertained that the court has jurisdiction in the subject matter of the suit unless the trial Judge is legally disqualified from taking the matter; and in which case, the case will be reassigned to another Judge. A Judge is an impartial umpire between the parties; his function is to n adjudicate between two or more disputants as an arbiter. This he may do in a variety of ways.

His cardinal function is that he must keep an open mind and must give each of the disputants equal and fair opportunity to present his case instead of wrongly preventing a disputant from bringing forth his case. He must not venture into unnecessary and untenable technicality so as to close the avenue of redressing the grievance sought by the disputants.

Having recognised that the court had jurisdiction, the Judge should not have embarked upon a search for a way out to avoid hearing the case. He should not have created for himself a dilemma by ignoring the law and delving into jurisprudential realms or pontificating on impossible or irrelevant permutations, or pondering on imaginary or non-existing conflict between law, justice and morality in an obvious attempt to evade the responsibilities imposed upon him by law.

He ought not to have shrunk from such responsibilities, simply because he had great reverence for the judiciary and its functionaries current or retired. His obvious attempt to pass the buck, so to say, is uncalled for and it is in fact outside his province to indicate alternative venue in any other State where the action could be properly instituted. The order the learned trial Judge made striking out the action ought to be set aside.

The appeal in the main succeeds and it is allowed. The order is hereby set aside. I order that the case be remitted to Oyo State Chief Judge who may give appropriate direction to facilitate the hearing of the suit de novo by a Judge of the High Court preferably the Chief Judge – if he so decides or any Judge other than the Judge in question. I make no order as to costs.

---

Other Citation: (1990) LCN/2411(SC)