Sylvester Udemezue
A breaking news in Nigeria on Monday, January 07, 2019, has it
that a Federal High Court sitting in Port Harcourt, Rivers State,
Nigeria, presided over by Hon Justice Kolawole
Omotosho, on Monday nullified the direct and indirect
primary elections allegedly conducted by two factions of the All
Progressives Congress (APC) in Rivers State.
An online news medium, TheNigerialawyer,
reports that the court order followed a suit filed by an APC
governorship aspirant in Rivers State, Senator Magnus Abe.
According to the presiding judge, both factions of the APC had
acted in disrespect of a pending suit before a Port Harcourt High
Court by purporting to have produced candidates for governorship,
national and state assembly polls, while the suit was still
pending. The judge accordingly declared that “both the direct and
indirect primaries purportedly held by the APC in Rivers State are
illegal and cannot stand in the face of the law.”
The natural implication of this judgment is that APC is now
barred from presenting any candidates in the upcoming 2019 general
elections in Rivers State, as a result of the party’s disrespect
for rule of law and the doctrine of lis pendens. In my humble
opinion, the party in Rivers had constituted itself into a grave
threat to both Democracy, Constitutionalism, Due Process and Rule
of Law when it proceeded in spite of a pending Court case/order to
conduct party congresses and primaries in Rivers. One is therefore
not shocked that the Federal High Court had to make this
disciplinary order, which by the way would now serve as a deterrent
to other politicians, political parties and institutions, who might
in future contemplate disregard or disrespect for court
proceedings. Besides, no one person or institution is above the law
and none should think himself or itself as such. Furthermore, the
judgment accords with the universal principle of rule of law, which
demands that once a party to a suit has been duly served with an
application or a notice of suit seeking to restrain him from doing
an act or from taking a particular step, such a party/person would
be in contempt of court and in violation of rule of law if he or
she goes ahead and takes any further steps in respect of the
subject matter of the suit/application. This principle was
emphasized and enforced in the famous case of Military
Government of Lagos State V Emeka
Odumegwu-Ojukwu (1986) 1 NWLR (Pt.18) 621, (2001);
(2001) FWLR (Part 50) 1779 at 1800, where the Supreme Court stated
as follows:
“After a defendant has been notified with the pendency of a
suit seeking an injunction against him, even though a temporary
injunction be not granted, he (the defendant) acts at his own peril
and subject to the power of the court to restore the status wholly
irrespective of the merits as may be ultimately decided…. They
[parties] have no right to take the matter into their own hands
once the court was seised of it.”
In the United States of America case of Porter v. Lee, 328 U.S.
246, at page 251, 66 S.Ct. 1096, at page 1099, 90 L. Ed. 1199, the
court had declared that “where a defendant with notice in
an injunction proceeding completes the acts sought to be enjoined
the court may be mandatory injunction restore the status
quo.” See also Darnell Garcia v. John C. Lawn C.A.9 (Cal.)
1986. In Turney v. Shriver, 269 Ill. 164, 109 N.E. 708, the court
framed the rule thus:
“Where a bill for an injunction has been filed, and the
court has acquired jurisdiction of both the person and the
subject-matter of the suit, and the defendant does any act which
the bill seeks to enjoin, such party acts at his peril and subject
to the power of the court to compel a restoration of the status quo
ante, or to grant such other relief as may be proper under the
particular circumstances of the case.’ 269 Ill. at page 172, 109
N.E. at page 711.”
Back here again in Nigeria, in the case of Bello v.
Attorney-General of Lagos State (2007) 2 NWLR
(Pt.1017) pg.115, while the matter was still pending in court, the
appellant did a publication in a newspaper in respect of the
subject matter of the suit, the lower court held that the appellant
(as applicant/plaintiff in the court below) was in contempt of
court. The Court of Appeal in affirming the decision of the lower
court, then stated thus:
“…. It is crystal clear from the publication set out above
that a suit was pending. It transpired from the publication that an
application for interlocutory injunction was equally pending. The
publication was made to coincide with the date the application for
interlocutory injunction was fixed for hearing, 18th September,
2001. The last paragraph had the effrontery of anticipating the
relief sought in the motion on notice. In other words, learned
counsel for appellant arrogated or ascribed to himself the power to
grant the interlocutory injunction, This respectfully does not only
constitute interference with the judicial proceedings, in suit
ID/564M/2001 pending before Lagos Slate High Court but also amounts
to usurpation of the proper function of the court, a court of
record. It also has the effect of inciting people against the
constituted authority; in addition to bringing the court into
contempt and ridicule…. The crux of the matter is that the learned
counsel for appellants and the purveyor of the publication
respectfully seems to have prejudged the issues in both the suit
and the pending application before the learned trial judge, ………The
publication in my humble opinion had greatly prejudiced the fair
trial of the action. By advising and warning the public not to obey
an enacted law was in no doubt inviting chaos and a state of
anarchy. ….. When a party to a suit or counsel on his behalf take
steps outside the court designed to affect the outcome of a pending
suit or application, that person would be acting in contempt of the
proceedings. The lower court was right in the step it took and I
wish more courts would be alert to their responsibility to protect
the integrity of the proceedings in those courts…… See paragraph 26
of the Halsbury’s Laws of England, Fourth Edition, which states as
follows: “26. Prejudging Issues. Comments on pending legal
proceedings which purports to prejudge the issues which are to be
tried by the court is intrinsically objectionable as being
usurpation of the proper function of the court. This it seems may
be punished or restrained as contempt irrespective of the effect or
likely effect on the particular proceedings in question.”
In Bukola v. Oshundahunsi (2012) 5
iLAW/CA/IL/35/2011, one major issue for determination was the
effect of a subsequent action of a defendant who has been
previously notified of the pendency of a suit seeking an injunction
against him. The 2nd and 3rd respondents had issued a Certificate
of Occupancy (C of O) in respect of the land in dispute, three days
after the suit was filed and after they (the 2nd and 3rd
respondents) had been served with the originating processes. On
that ground, the court set aside the said C of O. In that case, 2nd
and 3rd Respondents had issued the purported Right of Occupancy on
3rd of August, 2005, during the pendency of the suit. The court
condemned “this kind of arbitrary conduct which has the tendency to
demean and diminish the authority of the Court was condemned by the
Supreme Court long time ago and that any such act is liable to
being nullified.” Further, In Elf Marketing (Nigeria)
Limited v. J. L. Oyeneyin And Sons Limited [1995] 7
NWLR (pt. 407) 371, the plaintiff in an application/suit had sought
the following relief, among others:
“an order restraining the defendant, their agents or
servants or otherwise howsoever from removing from the jurisdiction
of this Honourable Court the following equipment illegally removed
by the defendant from the Petrol Filling Station of the plaintiff
along Kilometer 5 Okitipupa-Ore Road, Okitipupa, viz: (i) 4
dispensing petrol pumps, and (ii) lister generating set; both in
the lawful custody of the police, Nigeria Police Station,
Okitipupa.”
While the matter was still pending in court, and when the order
had not been granted, the defendant/respondent went ahead and
removed the four dispensing petrol pumps from jurisdiction. In
reaction, the lower court held that: “as to the four dispensing,
petrol pumps, it is hereby ordered that the defendants should
return them to Okitipupa Judicial Division within 14 days of the
date of this order until the final determination of the substantive
action.” While upholding the order of the lower court, the Court of
Appeal stated as follows:
“In the first place, it was while the process for an
interlocutory injunction was pending in court that the applicant
removed the four dispensing petrol pumps from the police custody in
Okitipupa within the jurisdiction of the court. The removal, for
all intents and purposes, was illegal and in defiance of the
process of the court. In order to maintain the status quo the
learned trial Judge had to order that the pumps be returned to the
jurisdiction of his court from where they were removed. After
considering the application before him the learned trial Judge held
that a case for an interlocutory injunction had been made out.
Whether the injunction is mandatory or prohibitive is immaterial
provided the justice of the case was met and especially as the new
situation was caused by the illegal act of the applicant by
removing the pumps with a full knowledge of a court process to
prevent it from removing them. The applicant company cannot be
allowed to hide under its illegal act….. In this application before
this court the applicant with full knowledge of a motion for
injunction against it pending in court removed the four pumps from
police custody and took them away to its office in Lagos. It does
not lie in its mouth to complain of a mandatory injunction ordering
the applicant to return the pumps….. On the whole I refuse to
exercise my discretion to aid an applicant who has no respect for
the rule of law….. If anything, it is the lack of respect for the
law on the part of the applicant, by removing the pumps while
proceeding for injunction were pending in the court against the
applicant and its defiance of an order of the court, that will have
the effect of foisting on this court a situation of complete
helplessness.”
A similar incident had played out in Osogbo, Osun State in 2010.
The Plaintiffs (Alhaji Nasiru Oyeniyi, head of Gbaemu compound and
Pa Claudious Fayoyiwa, head of Olu-Awooba compound, on behalf of
Sogbo ruling House of Osogbo against the Oyetunji and the
kingmakers) had filed both a Motion Ex Parte and a Motion on
Notion, praying the Honourable High Court for an order of
injunction, restraining all the defendants, including the then
Governor of Osun State, from appointing anybody as the Ataoja of
Osogbo pending the hearing and determination of the substantive
suit. However, while the case was adjourned to September 8, 2010
for hearing of the Motion on Notice, before the said adjourned
date, and after having been duly served with all the processes, the
Osun State Government went ahead and presented the Staff of office
to Alhaji Jimoh Olanipekun, thereby installing him as the 16th
Ataoja of Osogbo, in spite of the pending suit. On 18 February
2011, exactly five months and a week on the throne, the trial court
presided over by His Lordship, Honourable Justice Yinka Aderibigbe,
of an Osogbo High Court, brought down the curtain on the reign of
the Oba Jimoh Olanipekun as the Ataoja of Osogbo, ordering him to
vacate the throne immediately. Said the Court:
“All the processes leading to the nomination of Jimoh
Olanipekun to fill the vacant stool of the Ataoja of Osogbo through
the purported Larooye royal house of Osogbo during the pendency of
the suit and the motion for interlocutory injunction is hereby set
aside. The selection of Olanipekun to fill the vacant stool of
Ataoja of Osogbo by the kingmakers in the suit during the pendency
of the suit and the motion for interlocutory injunction is hereby
set aside. The approval and issuance of the instrument of office to
Olanipekun as the Ataoja of Osogbo in September 2010 by Governor
Oyinlola during the pendency of the suit and the motion for
interlocutory injunction is hereby set aside,” (vanguardngr.com,
2011).
In such cases of disregard for pending proceedings, what the
courts will do and have always done is to undo what the defendant
or respondent has proceeded to do in the meantime irrespective of
the merits of the matter; an order of disciplinary injunction is
granted to revert preemptive action already taken by one of the
parties, and this is done without the court considering the merits
of the case. See Ezegbu v. First African Trust Bank
Limited(CA4) (1992) 1 NWLR (Pt. 220) 699; Vaswani Trading
Co. v. Savalakh & Co. (1972) 1 All NLR 283. In this regards, the
Supreme Court of Nigeria has issued a strong warning against any
action, conduct or omission by any persons, persons, or institution
calculated to perpetrate illegality or to distort due process. Thus
,in Peter Obi v. INEC (SC No:2) [2007]
Vol. 9 M.J.S.C 1, where the Independent National Electoral
Commission (INEC) had proceeded to conduct elections into the
office of the Governor of Anambra State, in spite of the suit filed
by Governor Peter Obi of Anambra State (still pending), seeking an
injunction to restrain the electoral body, the Supreme Court while
nullifying the election, had declared as follows:
“The 1st respondent (INEC) was aware at that time that the
appellant was in court pursuing his legal rights. A body that has
respect for the rule of law, which the Independent National
Electoral Commission ought to be, would have waited for the outcome
of the court proceedings; particularly when it was aware of it…. As
at 14th April 2007 when the 1st respondent (Independent National
Electoral Commission) was conducting gubernatorial election in
Anambra State, the seat of the governor of that State was not
vacant. That election was a wasteful and unnecessary exercise. The
1st respondent (INEC) was aware at that time that the appellant was
in court pursuing his legal rights. A body that has respect for the
rule of law, which the Independent National Electoral Commission
ought to be, would have waited for the outcome of the court
proceedings; particularly when it was aware of it.”
In Whyte v. Kwande (APPEAL
NO.CA/PH/161/99), in a judgment delivered on January 4, 2007, the
Court of Appeal, Port-Harcourt Division (per IBRAHIM MOHAMMED MUSA
SAULAWA, JCA) put the situation this way:
“I should have thought that fairness, even handedness and
above all respect for rule of law would characterize the behaviour
and standards of such men who found themselves in public
offices”
The Supreme Court of Nigeria also in Chibuike
Amaechi v. INEC (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt.
1080) 227 (per PIUS OLAYIWOLA ADEREMI, JSC), had voiced its anger
against lawlessness
“The decision to substitute Celestine Omehia for Rotimi
Chibuike Amaechi by the 3rd Respondent (P.D.P) during the period of
pending suit on the gubernatorial election represents a display of
very grave display of political rascality and an irresponsible and
wanton disrespect for rule of law. No responsible person or group
of persons who parade themselves as having respect for rule of law
and due process, can be credited with such a dastardly act. The 1st
Respondent, by acceding to the request of the 3rd Respondent for
the substitution, has painted a picture of itself as a spineless
body whose pre-occupation is dissemination of injustice. It (1st
Respondent) has forgotten or it has thrown into the winds the
position carved for it by the Constitution of the land -An unbiased
umpire. Finally, on this point, I wish to say that in all countries
of the world which operate under the rule of law, politics are
always adapted to the laws of the land and not the laws to
politics. Let our political operators allow this time-honoured
principle to sink well into their heads and hearts.”
A final lesson one must take away from all these is that
litigants and their lawyers alike who are involved in proceedings
before courts of law must imbibe the appropriate manner of dealing
with pending courts proceedings, court orders and the judiciary as
a whole, bearing in mind what negative or disastrous consequences
their contemptuous and disdainful conducts towards judicial
officers and their orders may have on the litigants themselves, and
on administration of justice and rule of law, without which
democracy cannot survive. The Nigerian Constitution is founded on
the rule of law, the primary meaning of which is that everything
must be done according to law. Nigeria, being one of the countries
in the world which profess loudly to follow the rule of law, there
is no room for the rule of self-help by force to operate
(Military Governor of Lagos State vs.
Ojukwu (supra). Additionally, courts of law do not
take lightly any disrespect for their orders or contemptuous act or
omission against proceedings before them. Every such transgression
and disobedience receives a just recompense of reward. The APC in
Rivers State has learnt the hard way. I now implore all Nigerians
to learn from this APC’s grisly experience and respect our courts.
The judiciary occupies a pride of place in society, as the temple
of justice, the last hope of the common man, and a bastion of hope
for sustenance of true democracy, rule of law and due
administration of justice.
God Bless Nigeria.
Respectfully,
Sylvester UDEMEZUE
(January 07, 2019)