Mr. V. Onocha V. Attorney-general Delta State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment)

This is an appeal by one Mr. Onocha against the Ruling of Hon. Justice T.O. Uloho of the High Court of Justice Orerokpe, Delta State delivered on 13th of April, 2011 in which the Appellant Mr. V. Onocha (a Director in the Delta State Ministry of Environment) was sentenced to (21) twenty-one days imprisonment for contempt of the court.

The summary of the facts in the appeal is as follows:

The Appellant was not a party in the substantive suit at the lower court.

MTN Nigeria Communications Ltd (MTN) as claimant instituted the action in Suit No. HOR/39/2010 at the Orerokpe High Court, Delta State by an originating summons for the determination of some questions which includes:

Whether or not the rights enuring to the claimant by the provision of section 19 of the Nigeria Communications Commission Act CAP N94 Laws of the Federation of Nigeria, 2004 can be taken away by the provision of the Ecology Law of Delta State, 2006?

Whether or not the erection of telecommunication masts and base stations is prohibited by the Ecology Law of Delta State and as such requires the application of permit by the claimant. If the answer to the above question is in the affirmative, whether or not the tariff imposed by item 43 of the Delta State Ministry of Environment Revised Ecology Tariff has legal basis. SEE PAGES 1 TO 25 OF THE RECORD OF APPEAL.

The 1st and 2nd defendants were the Governor of Delta State and the Attorney-General of Delta State. The 3rd defendant was the Ministry of Environment Delta State. SEE PAGES 26 TO 48 OF THE RECORD OF APPEAL.

In the course of proceedings, the 3rd Defendant filed a motion dated 8/3/2011 praying the Honourable Judge to disqualify himself from hearing the case and transfer same to the Chief Judge of Delta State for re-assignment. The claimant filed a counter- affidavit and a written address in support to the 3rd Defendants motion for transfer of this suit. The 1st and 2nd defendants also filed a counter affidavit. SEE PAGES 71 TO 87 OF THE RECORD OF APPEAL.

On the 29/3/2011, counsel for the respective parties adopted their written addresses in respect of the 3rd defendant’s application dated 8/3/2011 and the court adjourned to the 13th day of April 2011 for ruling. On the said date, whilst going through the affidavit in support of the motion for transfer deposed to by Mr. V. Onocha, a Director of Ecology in the Ministry of Environment, the court discovered that some paragraphs of the affidavit are quite scandalous and offensive to the court. Thus learned counsel for the 3rd defendant was call upon to withdraw the offensive paragraphs and he bluntly refused insisting that he was relying on them as they are the substratum of his application.

Sequel to the above, Mr. V. Onocha was called upon to enter the witness box and explain why he should not be contempted by the court. He informed court that whatever decisions reached in the affidavit was based on the decision reached by the Ministry (3rd defendant) which the court discovered was contrary to his earlier posture in the affidavit he deposed to wherein he stated that because of his vast experience in the Public Service he has knowledge of what obtains in other Ministries.

The court eventually found the paragraphs quite offensive and because Mr. V. Onocha failed to explain to the court why he should not be contempted, he was sentenced to 21 days imprisonment for contempt and transferred this suit to High Court 3, Effurun for hearing and determination.

Dissatisfied with the sentence passed on him by the learned trial Judge, the Appellant appealed against the above said ruling to the Court of Appeal vide Notice of Appeal dated the 27th day of April, 2011.

THE PROPER RESPONDENT IN THIS APPEAL