ALHAJI ALIKO DANGOTE v. AFRICAN PETROLEUM PLC & ORS
(2018)LCN/12339(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of June, 2012
CA/L/785/2010
RATIO
COURT AND PROCEDURE: THE DISCRETION OF THE COURT
“…His Lordship held inter alia at page 490 -491: “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.” Kutigi JSC (as he then was) was of the view that inspite of the general rule that jurisdiction should be dealt with expeditiously before other matters are resolved, cases involving contempt of court should be left largely to the discretion of the Court before whom the contempt was committed moreso because circumstances differ from one form of contempt to the other…”PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
ALHAJI ALIKO DANGOTE Appellant(s)
AND
1. AFRICAN PETROLEUM PLC (Suing through and by the 2nd -15th Plaintiffs)
2. NWOSU SUNDAY NNAMDI
3. ADELEKE ADEBAYO ADETUNJI
4. SOFOLAHAN MARY JOKE
5. OBARINDE ISAAC OBATOSHO
6. SOARES AKINOLA
7. AJANI WAHAB ABIDOYE
8. IGBRUDE OKEOGHENE MOSES
9. KUDAISI AYODELE SARAT
10. NWOSU KENNETH NNABUIKE
11. OMOJOLA ANTHONY OMONIYI
12. OSADINIZU CHUKS NWOSA
13. ODUKALE ABIMBOLA ADEBOYE
14. AMIOLEMEH OMODIALE ANGUS
15. ADEFUYE MICHAEL OLORUNTELE
16. MR. FEMI OTEDOLA
17. MR. TUNDE FALASINU
18. MR. OSA OSUNDE
19. REV. LAYI BOLEDEOKU
20. MRS. GRACE EKPEYONG
21. MR. SEBASTINE ADIGWE
22. MR. SEGUN SEBANJO
23. MR. STANLEY LAWSON
24. MR. CLEMENT AVIONWH
25. MR. CHRISTOPHER ADEYENI
26. NOVA FINANCE & SECURITIES LTD
27. THE NIGERIAN STOCK EXCHANGE LTD/GTE
28. SECURITIES & EXCHANGE COMMISSION
29. PROF. NDI OKEREKE-ONYIUKE
30. MRS. JOSEPHINE IGBINOSUN Respondent(s)
a) A declaration that the counof theStock Exchange Ltd/GTE, the 13th Defendant herein (hereinafter referred to as “the NSE”) cannot competently entertain, hear and/or purport to determine the complaint of the 1st Plaintiff company herein (hereinafter referred to as “the company”) on the manipulation of the company’s share prices against the 11th Defendant herein, Alhaji Aliko Dangote and the 12th Defendant herein, Nova Finance & Securities Ltd whilst the 11th Defendant, Aliko Dangote remained at all material time relevant thereof the Vice President and 2nd most ranking official of the council of the NSE.
Along with the originating summons the Plaintiffs filed a motion ex parte and a motion on notice for interlocutory injunction. The Appellants filed a preliminary objection respectively to each application. On 4th August, 2009 the Federal High Court per Liman J adjourned the Appellant’s preliminary objection and the Plaintiff’s motion for interlocutory injunction to 11th August, 2009 while it ordered parties to maintain status quo pending the hearing and determination of the application.
In the circumstances, this appeal is liable to be allowed ex debito justicae since there appears to be no foundation for the order to maintain status quo. You cannot put something on nothing and expect it to stand.
a) That the decision of the trial Federal High Court sitting at Lagos delivered in this suit No. FHC/L/CS/798/2009 – African Petroleum Plc & Ors v. Mr. Femi Otedola & Ors, per Tsoho J., on the 22nd day of July, 2010 purportedly being appealed against by the Appellant is an interlocutory decision rather than a final decision of the lower court; and, the same was in the exercise of that court’s judicial discretion.b) That no leave of either the trial Federal High Court or the Court of Appeal was first sought nor obtained prior to the filing of the Appellant’s said notice of appeal and the grounds thereof.
c) That whilst grounds 1, 2, 3, 5, 6 and 7 of the Appellant’s said notice of appeal alleges both an error in law and a misdirection in each of the said grounds, the same together with grounds 4, 8 and 9 and the particulars thereof are not only grounds of fact and/or mixed law and fact but are suffused with arguments and/or narratives.
d) That the entirety of the grounds contained in the Appellant’s said notice of appeal particularly grounds 1, 2, 4, 6, 7, 8 and 9 and the particulars thereof are wholly speculative, vague and general in terms; and the same discloses no reasonable ground of appeal and/or did not arise or emanate from the decision of the trial Federal High Court delivered in this suit on the 22nd July, 2010, per Tsoho J., purportedly being appealed against by the Appellant.
From these grounds of objection learned counsel formulated two issues for determination as follows:
1) Whether the Appellant could competently appeal on any of the said grounds of his appeal and the particulars thereof as are endorsed on their said notice of appeal in the absence of any leave of either the lower court or of this court first sought and obtained
2) Whether the grounds of appeal were not suffused with arguments and the allegations speculative and not disclosing any ground of appeal having not emanated from the ruling of the trial court.
The 1st – 15th Respondents’ counsel argued on the objection that the grant or refusal of an application is purely within the province of the discretionary powers of the trial court. He cited Catcoa Corp. Organised v. African Reinsurance Corp (2010) 15 WRN Pg. 153 at 173. Counsel also submitted that a ground challenging the discretion of the court is at best a ground of fact or mixed fact and law since the appellate court is bound to look at the facts to determine whether the trial court exercised its discretion judiciously and leave must be obtained before filing the appeal. Counsel also submitted that the complaint of misdisection is one for which leave of court needs to be first sought and obtained. Further, counsel is of the view that the contents of the grounds of appeal are incompetent since they do not relate to the decision appealed against.
Counsel also insisted that since the 29th & 30th Respondents names had been struck out in the substantive suit and the contempt proceedings, they were not parties to be sued in this appeal. He cited AG Anambra v. Okeke (2002) 36 WRN 16 at 48.
In reply, the learned senior counsel for the Appellant argued that the only issue for determination is whether the notice of appeal is competent and the appeal allowed to be determined on its merit. Senior counsel argued that section 241 (1) (d) and (f) (i) of the 1999 Constitution allow an aggrieved person to appeal as of right when the issue of his personal liberty is at stake.
Counsel cited UBN Plc v. Sogunro (2006) 16 NWLR Pt. 1006 Pg. 506 at Pg. 525 – 526; Okoyekwu v. Okoye (2009) 6 NWLR Pt. 1137 Pg. 350 at 380; Abiola v. FRN (1995) 1 NWLR Pt. 370 Pg. 155 at 172.
Counsel submitted that having established that the ruling and order of the trial court made on 22nd July, 2010 for the issuance of warrant of arrest against the Appellant affects his liberty, the leave of the trial court or of this Honourable court is not required for bringing this appeal.
I have considered the incisive arguments of both learned counsel. Section 241(1) (d) and (f) (i) of the 1999 Constitution states as follows:
“241(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person.
241(f)(i) where the liberty of a person or the custody of an infant is concerned.
The impact of this provision had been settled in UBN v. Sogunro supra where the Supreme Court held as follows on page 525-526:
“By virtue of the provision of section 241 (1) (d) (f) (i) of the 1999 Constitution, a party can appeal as right to the Court of Appeal against the decision of a High Court Civil or Criminal proceedings on question as to whether any provisions of chapter iv of the Constitution has been, is being or is likely to be contravened in relation to any person and in decisions given by the High Court where the liberty of a person or the custody of a infant is concerned. However, the right of appeal under section 241 (1) (d) and (f) (i) of the 1999 Constitution is reserved for an appellant who is in pursuant of the exercise of his fundamental rights under chapter iv of the Constitution or whose personal liberty is in issue in the decision of the High Court being appealed against to the Court of Appeal.” (underlining ours for emphasis.)
I am in agreement with the senior counsel for the Appellant that given the fact that the ruling of the learned trial judge include the issuance of a warrant for his arrest and presence on the return date, his liberty is in issue in that decision and the Appellant need not seek leave to appeal to this court. Thus the question of whether the grounds are of mixed law and facts or in the exercise of the discretion of the trial court is irrelevant as long as the liberty of the Appellant is an issue in the proceedings being appealed against.
Let us recollect that contempt proceedings are quasi criminal in nature and the issuance of warrant of arrest against the Appellant is likely to affect his liberty as this might lead to subsequent restraints on his freedom of movement.
In the circumstances, I do not see any merit in the preliminary objection to the hearing of this appeal and the objection by the 1st – 15th Respondents is hereby overruled. Please note that at the hearing of the appeal, the 15th -26th Respondents’ notice of objection had been withdrawn.
In the appeal itself, the Appellant identified four issues for determination as follows:
i) Whether having regard to the nature of the alleged contempt against the Appellant in this case, the ratio decidendi in the case of Ebhodaghe v. Okoye (2004) 18 NWLR Pt. 905 Pg. 472 and the entire circumstances of this case, the application challenging the jurisdiction of the court to hear and determine the main suit should not have priority over the contempt proceedings (grounds 1, 3 and 4).
ii) Whether the twin Cardinal Principles of fair hearing, i.e. hear both sides and not to be a judge in one’s own cause, will not be violated in this suit when the same judge determines the substantive suit as well as the contempt proceedings which emanated from the substantive suit thereof. (Ground 5).
iii) Whether the trial court was right when in its ruling on priority of applications (challenging the jurisdiction of court to hear the main suit and the contempt proceedings) proceeded to make an order for the issuance of bench warrant of arrest against the appellant (Grounds 6, 7 and 9).
iv) Whether the trial court, in the circumstances of this case, has jurisdiction to hear and determine the contempt proceedings (Grounds 2 and 8.)
The 1st – 15th Respondents identified two issues for determination as follows:
Whether given the Supreme Court’s decision in Ebhodaghe v. Okoye (2005) 1 MJSC 156 and the particular circumstances of this case, the learned trial judge was not right in holding that the court is entitled to first decide the issue of contempt? (grounds 1, 2, 3, 4and 5.)”
Issue No. (ii)
Whether having determined on the priority of the contempt proceedings, in the particular circumstances of this case, the learned trial judge was not right in making the consequential order thereto? (Grounds 6, 7, 8 and 9.)
The 16th – 25th Respondent identified 4 issues for determination as follows:
Whether considering the law, the circumstances of the case and the need to preserve the dignity of the court, the lower court was right in its decision to entertain the contempt proceedings and giving priority to the said contempt proceedings over other applications before the court (Grounds 1, 3 and 4).
The 28th Respondent on his part distilled just one issue for determination thus:
Whether the lower court was right when it held that the issue of contempt which in the instant case was in facie curae should take priority over the various applications challenging its jurisdictional competence to hear the substantive suit (Grounds 1, 2, 3, 4 and 8.)
A consideration of the record of appeal and the grounds of appeal shows that the salient issues for determination is couched by me are as follows:
(1) Whether having regard to the nature of the alleged contempt against the Appellant in this case, the ratio decidendi in the case of Ebhodaghe v. Okoye (2004) 18 NWLR Pt. 905 Pg.472 is applicable and the application challenging the jurisdiction of the trial Court to hear and determine the main suit should not have priority over the contempt proceedings.
(2) Whether the trial Court was right in the circumstances to issue a bench warrant for the arrest of the Appellant.
ISSUE ONE
Learned senior counsel for the Appellant argued this issue extensively and urged on us the view that even though the general rule is that where the contempt proceedings involves contempt in facie curiae, then the contempt proceedings must be taken first. However where the contempt occurred ex facie curiae and it must be tried by a different Court, moreso where there has been a pending challenge by way of applications to the jurisdiction of that Court.
Counsel argued that the order of 12th March, 2010 nullyfing the election of the Appellant as President of the Nigerian Stock Exchange should never have been made. He submitted that the order is intrinsic to the substantive suit such that a determination of the issue of jurisdiction would affect the said order and by virtue of this, the issue of jurisdiction of the Court to try the substantive suit should have been dealt with before the contempt proceedings.
Learned Appellant’s counsel cited copiously the case of Ebhodaghe v. Okoye supra to support his propositions.
Learned senior counsel also argued that a Court be it a trial or appellate Court has a duty to put an end to any proceeding before it once it discovers that it lacks jurisdiction to entertain and/ or determine the suit otherwise it will be a nullity Whatever the merit of the case may be, that once a challenge to jurisdiction is raised and there are other pending applications, as a general rule, the application challenging the jurisdiction must be taken first.
He submitted that it was wrong of the learned trial judge to rely on the obiter of Pats Acholonu JSC to the effect that ex facie contempt proceedings should enjoy priority over the application challenging the jurisdiction of the Court and that the opinion of Pats Acholonu was at variance with the opinion of the lead judgment on that point.
Learned senior counsel for the Appellant argued that the application challenging jurisdiction was filed on 4th of August, 2009 and pending when the Plaintiffs/Respondents’ application dated 7th of August, 2009 which led to the ruling of 12th March, 2010, the subject matter of the contempt proceedings was heard and granted.  Moreso when the application challenging the jurisdiction of the Court as a general rule enjoyed priority over the application of 7th of August, 2009 since it is not a contempt proceedings.
The trial Court ought to have resolved the issue of jurisdiction before taking the application whose order lead to the alleged contempt in the circumstances of the suit. Senior counsel reminded us that besides the Appellant’s application of 4th August, 2009, challenging the jurisdiction of the Court to hear the substantive suit, the Appellant had also filed another Notice of Preliminary Objection dated 20th July, 2010 challenging the contempt proceedings which had not been determined before the trial Court assumed jurisdiction over the contempt proceedings.
Thus, the ruling or order of 12th of March, 2010 ought not to have been made in the first instance, let alone the commencement of the contempt proceedings thereto.
He cited the following cases RASTICO LTD VS. S. G. S. (1990) 6 NWLR (PT.158) CA 608 AT 616 PARAS. E – F; HUANG VS. BELLO (1990) 6 NWLR (PT.159) CA 671 AT 678 PARAS. E – G; GLOBESTAR ENG. LTD VS. MALLE HOLDING LTD (1990) 10 NWLR (PT.622) CA. 270 AT 284 PARAS. D – F; MOBIL OIL VS ASSAN (SUPRA) AT PG. 145 PARA. G & PG. 149 PARAS. A – C; ODOGWU VS. ODOGWU (1992) 2 NWLR (PT.225) SC 539 AT 554 PARAS. F – G and F. A. T. B. VS. EZEGBU (1992) 9 NWLR (PT.264) SC 132 AT 146 PARAS. E – F; GROUP DANOE & ANOR. VS. VOLTIC (NIG.) LTD. (2008) 3 – 4 SC 32 AT 51.
Learned counsel for the 1st – 15th Respondents argued that whilst it is the settled law that when an issue of jurisdiction is raised by a party, the Court ought generally to take it first, where, however, due to a combination of factors, as in the instant case, an act which would impinge on the majesty of a Court and likely to bring the Court to odium and disrespect, is done, it is not only desirable but essential for the Court to first look into the matter of contempt before proceeding to the issue of jurisdiction.
Counsel argued that on 22/7/10 the trial Court was concerned with the question of whether the Court’s jurisdiction in the substantive suit does not have priority over the issue of contempt proceedings. Counsel argued that the Appellant did not move the application objecting to the committal proceedings and the Court had inherent powers before the application to show cause is moved to order for a bench warrant to be issued against a defaulting party for his arrest and production in Court on a afresh date fixed for hearing. He cited Best Western Co. Ltd. & Anr. (2001) 35 WRN 153 at Pg. 170; Odu v. Jolaosho (2002) 37 WRN 115.
Learned counsel for the 16th – 25th Respondent replied in argument that the general principle with regards to contempt proceedings is that an alleged contemnor is not entitled to be heard in the cause or matter unless and until he purges himself of the contempt. He conceded however the exceptions to this general rule, which are cases where the order disobeyed was made without jurisdiction and where the party in disobedience of the order is genuinely challenging the validity of the order made. He cited Military Governor, Lagos State v. Ojukwu (1986) 2 NWLR (Pt. 18) 621.
He contended that the facts and circumstances of the present appeal do not fall within the bracket of the above stated exceptions to the rule regarding contempt proceedings. In the first place the issue of the jurisdiction of the court is yet to be decided and secondly the appellant was not genuinely challenging the order made as it is on record that he had withdrawn the application before the Court of Appeal. He referred the court to page 803 of the records of appeal Vol. III, where the learned Senior Advocate for the Appellant informed the lower court that the appeal before the Court of Appeal has been withdrawn and struck out. Thus as at the date the order of the Court being challenged by the present appeal was made there was no pending appeal challenging the order of the court made from where the contempt proceedings originated.
Learned counsel argued further that the issue of contempt of court is of primary importance to the maintenance of the dignity of court and as such is usually accorded the highest priority over and above any other issue or application before the court.He relied on the case of Ebhodaghe v. Okoye (2004) supra which was also relied upon by the lower court in its ruling.
Counsel further emphasized the dicta in Ebhodaghe v. Okoye supra and Omoijahe v. Umaru supra to support his view and convince us that the rationale of this principle to determine contempt first is apt as a court whose orders are violated and disregarded ought to restore its authority and dignity as a Court of Law first before taking further proceedings. It is one of the recognized exceptions to determining the issue of jurisdiction first.
The 28th Respondent’s supported the stand of the Appellant. His brief challenged the judgment of the trial court without filing a cross appeal. The Respondents cannot attack the judgment of the trial court. In the circumstances, the 28th Respondent’s brief will be ignored in the consideration of this appeal as it is incompetent.
At the hearing of the appeal, there was service on the 26th, 29th and 30th who were absent and unrepresented in Court.
All the counsel on this case relied for their propositions and submissions on the case of Ebhodaghe v. Okoye supra.
The grouse of the Appellant under this issue is that the lower Court was in serious error to have in order of priority ranked higher the hearing of the contempt proceedings before the determination of the issue of whether it has the requisite jurisdiction to entertain the substantive suit especially where the contempt in the instant case is one of contempt in facie curae.
The trial Court had in its ruling of 22nd July, 2010 given priority to the hearing of the contempt proceedings initiated by 1st to 15th Respondents over the various Notices of Preliminary Objection challenging its jurisdiction to hear and determine the substantive suit.
The basis upon which the decision of the lower Court hinged for holding that the contempt proceedings should be given priority over the various Notices of Preliminary Objection challenging its jurisdiction to hear the substantive suit was the Supreme Court decision in the case of Ebhodaghe Vs. Okoye supra.
I want to explain what happened in Ebhodaghe v. Okoye supra and relate them to the circumstances of this case. In Ebhodaghe v. Okoye, the trial Court was trying a case of libel brought by the Appellant. When the suit came up on a certain date for hearing, the Respondent’s counsel wanted to argue the Respondent’s Preliminary Objection to the jurisdiction of the Court. The Appellant’s counsel however informed the Court that its ruling of a particular date was reported as if it had not been given. In other words, the newspaper misrepresented the proceedings of the trial Court on a certain date. The trial Court then adjourned the case and summoned the Editor and the two lawyers involved to show cause why they should not be committed for contempt of Court. This was inspite of the insistence of the Respondent’s counsel that his motion of preliminary objection should have priority. The Court of appeal agreed with him while the Supreme Court held inter alia that the trial Court was right in the circumstances to have taken the issue of the contempt to its proceedings first and allowed the appeal. In the lead judgment of Kalgo JSC at Pg. 488 of the NWLR Report his Lordship opined that the Supreme Court accepts the general proposition of the law that jurisdiction is a threshold issue which should be determined first when raised. His Lordship then held that in that case the contempt was not in the face of the court and one which the court must investigate into before action can be taken.
His Lordship held inter alia at page 490 -491:
“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.”
Kutigi JSC (as he then was) was of the view that inspite of the general rule that jurisdiction should be dealt with expeditiously before other matters are resolved, cases involving contempt of court should be left largely to the discretion of the Court before whom the contempt was committed moreso because circumstances differ from one form of contempt to the other. His lordship then concluded at Pg. 493 – 494 of the NWLR as follows:-
“I think the Court of Appeal was in grave error. The application challenging the jurisdiction of the trial High Court was with respect to the libel suit. It is important to point out here that the learned trial Judge whose jurisdiction had been challenged, did not leave the resolution of that challenge and proceed to entertain the substantive libel suit.
The offence of contempt of court is a class by itself. Put simply, it is sui generis. It is ex-trinsic to the substantive libel suit. Now at the stage the attention of the learned trial Judge was drawn to the alleged office of contempt of his court, and he consequently made up his mind to dispose of that first, two distinct and separate matters were before him. The learned trial Judge was perfectly right when he chose to first deal with the issue of the contempt of his court. The issue of jurisdiction of the court with regard to the libel suit would be taken when that suit comes on for hearing. In the light of this it can be seen clearly that the decision of the Court of appeal was flawed.”
On his own part Pats – Acholonu JSC expressed this strong view at Pg. 493-494 of the NWLR as follows:-
“It will be preposterous and asinine for a person to seek to purge himself of contempt by stating that the court has no jurisdiction in a particular suit, where the court is one of general jurisdiction and the suit is one within the scope of the court’s general jurisdiction.”
His lordship in a slight departure from the views expressed in the lead judgment accepted and approved the view expressed by the Supreme Court of the United States of America in the case of United States v. United Mine Workers of America. The view is to the effect that even though an order of a court having no jurisdiction would eventually be vacated, until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition, even as the trial Court was bound to refrain from further proceedings until the same time. The view of the Supreme Court of the United States does seem to synchronise with the views of our Supreme Court on this point. The Supreme Court seems to me to be of the view that the general inherent jurisdiction of the court superimposes on the question of its specific jurisdiction.
The unanimous view of the court seems to be that where there are two separate applications, one to challenge jurisdiction and another to initiate contempt proceedings, the trial court is at liberty to choose which of the application to hear first. A court possesses the power to discipline anyone who brings it into disrepute. However, Oguntade JSC in his own contribution seem to depart slightly in the matter thus at Pg. 500 and 501 respectively of the NWLR.
“However, the statement that a court cannot make a valid order in a case in which it has no jurisdiction is not an abstract one to be invoked mechanically. When an order is being challenged on the ground that it was made by a court without jurisdiction it is still necessary to consider the nature or purpose sought to be achieved by the order being challenged and whether there is jurisdiction under the general law to make the order under attack. There are orders, which are intrinsic to the substantive suit such that a decision that a court has no jurisdiction necessarily and without further ado impairs such orders. On the other hand there may be orders which are extrinsic to the substantive suit with the result that no matter what view one takes of the jurisdiction of the court to hear the substantive suit, the orders remain valid and binding.
The court below in my view failed to draw a distinction between orders which are intrinsic and woven up with the substantive suit and orders which are extrinsic to the substantive suit. In the former, where the court is found to have no jurisdiction, the orders made by the court are nullities. It is only in such a case that objection as to the court’s jurisdiction ought to be determined first. In the latter into which category this appeal on hand falls, the order of the trial court to investigate the complaint of contempt is extrinsic to the substantive suit. The order from this perspective has nothing to do with whether or not the trial court has jurisdiction to hear the substantive suit.”
It appears to me that only Oguntade JSC in the case of Ebhodaghe Vs. Okoye was of the view that where the contempt alleged is intrinsic and touched on the cause of action, it would be expedient to decide the issue of jurisdiction first in order to avoid a situation in which the court would be forced to vacate its orders made to protect its dignity because it had no specific jurisdiction to try the suit. Learned Appellant’s counsel tried to persuade us to this view and to accept this distinction.
It is to be noted that the lead judgment of Kalgo JSC which is binding on us and the opinion of other Justices did not make this distinction between orders intrinsic to the cause of action and orders extrinsic to it. They only made the point that application challenging jurisdiction is different from contempt proceedings and both can be taken distinctly and determined separately and that the order of determining them should be left to the discretion of the trial court.
I would resolve this issue in favour of the Respondents and hold fast to the view that the learned trial judge had absolute discretion as dominis litis in his court to choose which application to take first and it was not in error to have taken the application to commit for contempt first.
The answer to that question does not aid the Respondents in this case. As I said earlier, this whole matter has been rendered nugatory by the finding in CA/L/13/10 that the order to maintain status quo had no basis in law or fact and should never have been made. This court having held that the order for maintenance of status quo had no foundation, the subsequent contempt proceedings must collapse. This makes an attempt to resolve the second issue superfluous in the circumstances. Of course the resolution of this appeal is without prejudice to all pending applications and the merit of the substantive suit at the trial court. Having allowed the appeal in CA/L/13/10, this appeal inspite of the merit found in the Respondents’ position, must also be allowed.
This appeal is allowed.
No order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have just been afforded in draft, the lead judgment of my learned brother Hon. Justice Helen Moronkeji Ogunwumiju, JCA.
I agree entirely with opinion expressed therein and the conclusions arrived at.
The Appeal is allowed by me.
I abide by the consequential made in the lead judgment, that there shall be no order as to costs.
M. A. DANJUMA, J.C.A.: I agree completely with the lead judgment, most lucidly but comprehensively articulated by my, Lord OGUNWUMIJU, JCA, that this appeal be allowed.
The epicenter of this case on appeal is as to whether a contempt proceedings should be proceeded with in spite of the Appellant’s challenge to the jurisdiction of the court or tribunal to proceed with the main suit from whence the complaint relating to contempt arose. This is the basis of and fulcrum of this appeal. Ordinarily, the power to punish for contempt is an inherent power in all superior courts of record and tribunals. It is for the preservation of its dignity and for the preservation of the sanctity of the law.
In this wise, the power annures and is exercisable where the contempt is committed in-facie curie i.e. before the court, whether the court has jurisdiction to try the substantive case i.e. has jurisdiction in the matter or not.
However, where the contempt is committed ex-facie curie, i.e. outside the face of the court, it cannot be tried brevimanue; thus, this constitutes an exception where the court would need to first determine and decide on whether it has jurisdiction or not. This would have to be done first before it assumes jurisdiction to try for contempt. Aside contempt in facie curie the law is that is that once jurisdiction is raised in challenge, the court has a duty to determine that issue first before proceeding. In this case on appeal, the Appellant has not fallen foul of any contemptuous act, as the order of status quo antebellum was held to be baseless, premature the Appellant cannot be adjudged to have been contemptuous of the Federal High Court hearing the matter.
There was, therefore, no longer any situation calling for an election or an activating menu by the trial court for the exercise of the judicial process.
That being the scenario, the challenge, to the jurisdiction of the Federal (Trial) High Court, by the Appellant, as timeously raised ought be determine first before any order of injunction or preservative order. The Appellant having from inception entered a conditional appearance means that he was protesting the jurisdiction of the Federal High Court in the matter. His appeal against the non consideration and determination of the issue of jurisdiction was justified.
The challenge to the contempt proceedings sought to be taken by the Respondents against the Appellant is well taken.
Just as the order for the maintenance of the status quo antebellum which translates in essence, to the grant of an interim order of injunction, which was earlier on refused by the trial court was wrong, so also an order to try for contempt or an application to try for contempt cannot be correct without first resolving the issue of challenge to jurisdiction.
The Appeal against the Ruling in suit No.FHC/L/CS/788/2009 delivered on 22nd July, 2010 giving priority to the hearing of the 1st – 15th Respondent’s application for contempt proceedings against the Appellant without first hearing and determining the Appellants’ 27th and 28th Respondents Notices of Preliminary objection on jurisdiction to determine the substantive suit which Notice of Preliminary Objection had been pending before the issue of contempt arose has a strong area terra for success as the contempt proceedings cannot be initiated and determined when: The order to maintain status quo had been held to be baseless. There was no valid order that was violated to warrant, the contempt proceedings.
The proceedings, in any case never can have priority over the determination of the jurisdiction challenge raised.
The hearing of the application for mandatory injunction culminating into the contempt proceedings application triggered the chain of the virus that have infested the proceedings, which had filed therein, an Appellant’s application challenging jurisdiction and 1st – 15th Respondents motion for interlocutory injunction.
The determination of the jurisdiction question ranked in priority to the contempt proceedings wrongfully sought to be conducted first.
Furthermore, the alleged contempt is intrinsically tied to and arose from the act that the Appellant challenges that the trial court had no jurisdiction in respect thereto.
The court can do or order for nothing let alone take an action that would impinge on the rights of any of the parties, be it liberty from prosecution or indictment or arrest for a crime of contempt or not, without first resolving the jurisdiction issue. A court should not make an order in vain. A court should, be expected to act reasonably; will it not insult common sense to commit for contempt, arrest, try to punish for same and at the end of the proceedings discover that the court had no jurisdiction to try the matter in the first place?
Will a precipitate decision not likely occasion irreparable harm or damage to one party? What harm would have been occasioned in determining jurisdiction first?
Every order sought and leading to the contempt complaint or proceedings sought arise from and is tied to the substantive suit, no doubt. There is no doubt that contempt proceedings just like other interlocutory applications may be taken together with the question of jurisdiction as stated in EBHODAGHE V. OKOYE (2004) 18 NWLR Pt.905, page 472 and the discretion of trying them should be left to the trial court. It is my firm view and respectfully to, however, that, that discretion may only be in respect of contempt that a court is entitled to try brevimanu. That means the option of which to first try is there as stated by the apex court.
The alleged contempt in this proceedings, certainly, is not contempt in facie curie. There was no room for exercise of discretion if the right of fair hearing by an impartial arbiter must be adhered to. The judge should be one other than the one that heard or is seized of the substantive proceedings. That being the case, I think the complaint that it should not have been given priority of trial by the trial judge against the jurisdictional challenge is in order.
In join by voice in subscribing to the lead judgment that this appeal should be allowed. The hanger in this appeal is
JURISDICTION.
The two issues formulate by the Appellant as set out in the lead judgment must be resolved in his favour.
Appeal is allowed. I subscribed to the lead judgment and the order relating to costs.
Appearances
RICKEY TARFA SAN WITH HIM FOLA SOWEMIMO (MRS.), A. MAIGWI, M. A. ADEWOPO, N. NGONADI (MRS.), G. GBADAMOSI, M. BAMIDELE, GRANT ONWUKA, E. ADEDOKUN For Appellant
AND
I. O. ANIAKOR WITH HIM PAMELA (MISS) – FOR THE 1ST – 15TH RESPONDENTS
C. V. C. IHEKWEAZU WITH HIM A. C. EZE, GANI AYUBA, I. A. ONYEBUCHI – FOR THE 16TH – 25TH RESPONDENTS
CHINEDU EJIABOR – FOR THE 27TH RESPONDENT
UCHE V. OBI WITH HIM, A. C. UWAKWE, H. C. NWAFOR – FOR THE 28TH RESPONDENT
