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 produces 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 pump,s 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

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