John Ebhodaghe Vs Mr. Mike Okoye (2004)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

The only substantive issue to be determined in this appeal is this: when a court is faced with contempt ex facie curiae and a challenge to its jurisdiction, which of them is the court bound to deal with first

Before considering this issue, let me set out or recall briefly, the facts giving rise to this appeal.

The appellant was at the material time, the Managing Director of Nigerian Deposit Insurance Corporation (NDIC) a Federal Government Corporation involved with the implementation of the provisions of the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 as amended. One Clement Udemezue a Manager of African Continental Bank Nassarawa-Eggon Branch was arrested and detained under the Decree and while in detention, the said Udemezue died in a hospital in Jos. Thereafter, precisely on 30th June, 1998, the respondent who was counsel to the deceased Manager, wrote to the Lagos State Attorney-General requesting him to prosecute the appellant for the murder of the deceased whose medical care while in prison custody, according to the respondent, was carelessly taken by the Police and the appellant. The Attorney-General refused to respond and the respondent applied to the Lagos High Court for an order of mandamus to force the Attorney-General to prosecute the appellant for murder of Udemezue (deceased). The High Court heard the application and ruled in August 1998 that it had no powers to do so and dismissed the application.

The letter which the respondent wrote to the Attorney-General Lagos State somehow got into the hands of many news media in Nigeria who published it in their different daily papers. The appellant read these publications and found that the materials contained therein constituted libel on his person. He then instituted a libel action against the respondent in the High Court Abuja on 14th December, 1998.

On the 13th January, 1999 the respondent filed a notice of preliminary objection challenging the jurisdiction of the Abuja High court to entertain the libel action. On the 12th April, 1999 when the notice of preliminary objection was moved the learned trial Judge recorded on p.92 of the record of appeal thus:

“Plaintiff absent

Defendant in court

Emeka Ngige for the plaintiff

Defendant/applicant appear 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 expressly shows 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 first See Okorodudu v. NDLEA.

Court: The court order stands. The case is adjourned to 4/5/99.”

The respondent was not happy with this ruling and he appealed to the Court of Appeal. The Court of Appeal found merit in the appeal. It allowed it and “ordered the respondent to go back to the trial court and move his application filed on 13/1/99”, which according to the Court of Appeal should have been heard first by the trial court.

Dissatisfied with this order, the appellant filed this appeal on two grounds and in his brief raised the following issues:

1. Was the Court of Appeal right when it held in effect that a court faced with an act of contempt in facie curiae and also an issue of jurisdiction is bound to deal first with the issue of jurisdiction
2. Did the failure of the Court of Appeal to make a determinative ruling on issues regarding the correctness and applicability of an authority cited and relied upon by the appellant occasion a miscarriage of justice.

The respondent also filed a brief in reply in which he Formulated 2 issues thus:

I. Whether in the circumstances of this case, the Court of Appeal was right in setting aside the decision of the trial court refusing to entertain First, the preliminary objection challenging the jurisdiction before going into another issue raised before the court impromptu

2. Did the failure of the Court of Appeal to make a determinative ruling on issues regarding the correctness and applicability of an authority cited and relied upon by the applicant occasion a miscarriage of justice

The parties’ briefs after filing, were also exchanged between them, and at the hearing, counsel for both parties adopted and relied upon their respective briefs.

Looking at the 2 issues raised by each counsel in his brief, it appears to me very clearly that the issues are in effect the same in all respects. I am also satisfied that those issues properly, arose from the grounds of appeal in the appellant’s notice of appeal. I shall therefore consider the appellant’s issues as set out in his brief.

As I stated at the beginning of this judgment, the main issue here is issue I which deals with the issue of contempt of court and jurisdiction of the court -which one first.

It is not in dispute that both learned counsel for the parties agree with the general principle that jurisdiction is a central issue to any case before any court and once it is challenged, the court concerned is duty bound to determine whether it has jurisdiction first before proceeding to entertain the case. See Ndaeyo v. Ogunnaya (1977) 1 SC. 111; Oscroft v. Benabo (1967) 2 All ER 548.

This is so, because any act, orders or proceedings made by a court without jurisdiction is a nullity and remains so for all purposes. See Funduk Engineering Ltd. v. McArthur (1995) 4 NWLR (Pt. 392) 640 at 651; Alao v. C.O.P. (1987) 4 NWLR (Pt. 64) 199; Alhaji Rufai v. Alhaji Olugbeja (1986) 5 NWLR (Pt. 40) 162. It is also trite law that jurisdiction can be raised at any time even on appeal. See African Newspapers of Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137 at 161; National Bank of Nigeria Lt. v. Shoyoye & Anr (1977) 5 SC 181 at 180; Onyeama & Ors v. Oputa & Anr (1987) 3 NWLR (Pt. 60) 259 at 293.

It is common ground that the issue of contempt of court had arisen in the course of the proceedings before the trial court. This arose on 12th April, 1999, when the trial court’s attention was drawn to the publication affecting the ruling of the court given on 11th December, 1998. Prior to this, precisely on the 13th of January, 1999, the respondent had filed an application in the trial court challenging the jurisdiction of the court to entertain the substantive case.

There is no doubt that, in the first place, the challenge to the jurisdiction of the court was the first in time. In the second place the contempt alleged by the court was not one in the face of the court but one which must be investigated or inquired into before any action is taken and that is why the court ordered that “the editor and the 2 lawyers involved should be summoned to show cause why they should not be committed for contempt.”

I wish to repeat here the proceedings of the trial court on the 12th of April, 1999. It reads:

“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 expressly shows 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 first. See Okorodudu v. NDLEA.

Court: The court order stands. The case is adjourned to 4/5/99.”

(Italics mine)

The notice of preliminary objection which was filed by the respondent and which has nothing to do with the issue of contempt of court was on 4 grounds to wit:

“1. That this Honourable Court lacks jurisdiction to entertain the plaintiff’s claim as presently constituted.

2. That the defendant, a legal practitioner acting in his cause and/or in the cause of another has absolute immunity from the action as presently constituted, hence the action against the defendant cannot be maintained in law.
3. That this suit as presently constituted is an abuse of the proceedings before the Court of Appeal Lagos Division in appeal No. CA/L/457/98 between Mike Okoye v. Attorney-General of Lagos State.
4. That the cause of action did not arise within the Federal Capital Territory, Abuja, therefore this Honourable Court lacks jurisdiction to entertain the suit as presently constituted.”

The preliminary objection on the above grounds is clearly challenging the jurisdiction of the trial court; but the question to ask here is, for what reason or reasons did the learned trial Judge refuse to hear and determine the challenge to his jurisdiction before treating the contempt issue. As I said earlier in this judgment, the challenge to the jurisdiction came first. The contempt issue in fact arose in the cause of moving the preliminary objection on the jurisdiction, and the contempt here by its nature is not one in the face of the court. Investigation must be conducted by it or carried out before any action could be taken on it by the trial court. It may turn out to be one which must be tried by another court not the trial court itself. Furthermore, from the proceedings of 12th of April, 1999, when the trial Judge refused to proceed with the jurisdiction issue, the learned counsel for the applicant (now respondent) had taken the trouble to remind the court that the issue of jurisdiction should be taken first and cited a case in support (without reference details) but still the court ignored him and insisted on postponing the hearing to another date pending the contempt investigations.

The learned counsel for the appellant in his brief submitted that in all the legal authorities cited by the Court of Appeal on challenge to jurisdiction of a court, in none of them was the issue of contempt raised as a central issue or becomes the focus of the proceedings in court. These authorities can therefore be distinguished as they are not on all fours with the instant case. He further argued that an act of contempt goes to the root of a judicial system and the power of the court to deal with it summarily is by statute, intended to protect the integrity, dignity and authority of the court of law and enables the court to administer justice effectively and without any intimidation. He cited in support the case of Mobil v. Assan (1995) 8 NWLR (Pt. 412) 129 at 143. He then stated on page 10 of his brief “In the present case, the facts show that once the publication was brought to the attention of the court, the court felt compelled to construe or determine whether its very publication portrayed the proceedings before it in bad light or whether it was done with a view to fetter or intimidate or otherwise bring into disrepute the proceedings in court”.

With respect to the learned counsel for the appellant the above quoted words did not at all support what happened in the trial court. The record on that date in question merely showed that the court ordered summonses to be issued to the persons concerned with the publications to show cause and the matter was adjourned. There was no suggestion at that stage that the alleged publication portrayed the proceedings of the court in bad light. In fact, at that stage the learned trial Judge did not find anything contemptuous; all he did therefore was to order an investigation so as to find out whether there was contempt of court or not. So there was nothing at that stage to intimidate the court or bring its proceedings into disrepute. There was therefore no proof, in my respectful view, to the effect that contempt of court at that stage was central issue or becomes the focus of proceedings in that court. In fact the trial court merely ordered for investigation into the alleged publication to see if it amounts to contempt.

There is no doubt in my mind that the challenge to the jurisdiction of the court in this case goes to the substantive issue before the court; that is publication of offensive falsehood against the appellant in various Newspapers in Nigeria which the appellant alleged had injured his credit and reputation. However in the proceedings of 12th April, 1999, the trial Judge was only dealing with “the publication which expressly show that the ruling on 11/12/98 was never given”. This was a different matter altogether, and had nothing to do with the substantive case of libel. It is very clear therefore that the challenge to jurisdiction in the substantive case, has virtually nothing to do with the alleged contempt. The contempt case is sui generis and can be taken on its own and the challenge to jurisdiction which is already before the court can also be taken separately. And adjourning them to another date by the learned trial Judge was not in my view, giving priority to either of them. Therefore in the circumstances of this case, the learned trial Judge was not bound to deal with the issue of jurisdiction first. This means that the procedure adopted by the learned trial Judge was not wrong although it would involve some delay which the case has already suffered as a result of this appeal. I answer issue 1 in the negative.

Having resolved issue I in favour of the appellant, I do not find it necessary to consider issue 2 which deals with the failure of the Court of Appeal to act on the legal authority cited to it and relied upon by the appellant in his submissions to it before judgment. It appears to me to be an academic exercise, since in any case, it would not affect the decision in this case one way or the other. Suffice it however to say, that failure to consider any relevant authority by a court would not ipso facto, constitute any miscarriage of justice, in my view, since the situation may be corrected if necessary, on appeal.

In the result, I find that the Court of Appeal was wrong in allowing the appeal to it and setting aside the orders of the trial court. I therefore find merit in this appeal which I allow and accordingly set aside the judgment of the Court of Appeal and restore the ruling of the High Court. I order that the case be remitted to the trial High Court for continuation. I make no order as to costs.

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SC.218/2000