Newswatch Communications Limited v Atta (SC 101/2001) [2006] NGSC 10 (27 April 2006)

(2006) 1 All N.L.R. 211

Tobi, JSC (Delivered the Leading Judgment):- This appeal has so much to do with dates and all that. It is an appeal in which the appellant complains of denial of fair hearing on the ground that the learned trial Judge refused its application to arrest the judgment delivered on 9 May 1996. It is a case where the appellant, who was the defendant, had not the time to present its defence in court but finally had all the time in the world to file a motion to arrest the judgment delivered on 9 May 1996. Fair hearing is fair hearing when and if it is fair to both parties.

It is a case of libel. The respondent as plaintiff sued the defendant, the appellant, for libel. The plaintiff claimed N25,000,000 in damages for libel published by the defendant in Newswatch Magazine Vol. 19, No 11 of 14 March 1994 at page 7 under the story titled fruits of his labour. The plaintiff also needed a perpetual injunction and he asked for it. The plaintiff was a former Inspector-General of Police. The offending publication reads:-

"There is this little story about him making the rounds in Kam Salem House which we thought Ajudua would like to hear. He is said to be a very close friend of former I.G., Aliyu Atta. One day, the story goes, Atta was holding a meeting with top police officers when he was informed that a very important visitor had stormed the Police Headquarters. The I.G., not one to keep an important visitor waiting promptly (yes) called off the meeting. As the top police officers filed out of the I.G.'s office, they were shocked to find that Oga's very important visitor was, wait for it, Ajudua. Ajudua grumble, grumble. We hear some of the top Police Officers are still smarting over that incident."

The plaintiff's case as narrated by the learned trial Judge in the judgment is that the plaintiff was in breach of his oath of office, giving undue protection and respect to Chief Fred Ajudua, who was at all times material to the publication, suspected of having committed some criminal offences or that the said Chief Fred Ajudua is a personal friend of the plaintiff and was thereby immune to any arrest or questioning or any other police procedure that was necessary to determine his involvement in the commission of the offence. The plaintiff also averred that the words complained of in the article in their ordinary and natural meaning meant and were understood to mean:-

"(a) That the plaintiff was unfit to hold the office of the Inspector-General of Police by reason of favouritism, undue respect for members of the public over and above his official duties as Inspector-General and

neglect of Police procedure and protocol.

(b)    That by virtue of his friendship with Chief Fred Ajudua, the plaintiff was prepared to cancel or call off any important meeting with his subordinates in order to attend to mere personal visits.

(c)    That the plaintiff in breach of his Oath of Office gave undue preference and regard to a member of the public over his official duties as a Police Officer and in consequence of all these the plaintiff had been seriously injured in his character and reputation in respect of his profession and office as Inspector-General of Police and has been brought into public scandal, odium and contempt."

The defendant was duly served the Statement of Claim. Although the defendant was served with the Statement of Claim before the hearing of the case it did not file a Statement of Defence until after PW3 gave evidence. The defendant filed a Statement of Defence and a counter-claim. The defendant counter-claimed N30,000,000 from the plaintiff as damages for libel as well as an order of injunction. And so both slammed at the other a libel suit and an injunction to match. The defendant's claim was N5,000,000 more than that of the plaintiff in terms of damages.

The matter went for hearing. That was on 18 January 1995. Two witnesses were taken that day. The plaintiff was one. Alhaji Musa Maiyaki Ajayi was another. He was PW2 and the plaintiff was PW1. PW2 was not cross-examined because of the absence of Counsel for the appellant. The matter was adjourned to 21 February 1995 for continuation of hearing. Fresh hearing notices were ordered to be sent to the defendant. Come 21 February 1995, Counsel for the defendant was not in court. The Court took PW3 and adjourned the matter to 9 March 1995.

On 9 March 1995, Counsel for the defendant brought two motions, one for extension of time to file Statement of Defence and counter-claim out of time and the other for an order of court granting leave to the defendant to recall all the plaintiff's witnesses who had testified for cross-examination. The motion for extension of time to file Statement of Defence and counter-claim was not opposed and it was duly granted. The motion for recall of the witnesses was opposed. An adjournment was granted to Counsel for the plaintiff to prepare his submission in opposition to the motion. But before the matter was adjourned to 11 April 1995, the evidence of PW4 was taken.

On 11 April 1995, both Counsel addressed the court on the issue of recall of the witnesses of the plaintiff for cross-examination. The matter was adjourned to 24 April 1995 for ruling. In his ruling, the learned trial Judge reluctantly granted the motion for recall of the witnesses for cross-examination. In his ruling of 24 April 1995, the learned trial Judge, Gummi, J (as he then was) said, and I will quote him in extenso at pages 62 and 63 of the Record. The Judge made reference to his earlier ruling on 18 January 1995 when he said on that day:-

"In view of the foregoing it seems to me that the defendants and their Counsel are by their conduct deliberately trying to delay the take off of this matter and that I shall not permit."

Quoting the above in his ruling of 24 April 1995, and referring to same, the Judge continued:

"By that ruling, it is clear that the Court was not impressed by the conduct of the defendants/applicants at that stage. Even after that they again refused to appear at the next date of hearing when more witnesses were taken. If the defendants/applicants and or their Counsel had appeared on the occasions when the witnesses were taken, they would have cross-examined those witnesses. The defendants/applicants chose to stay away from the proceedings thus forfeiting their right to cross-examine. I am satisfied that as far back as 15 September 1994 the plaintiff/respondent's solicitors wrote a letter informing the defendant/applicant's solicitors that the matter had been adjourned to 28 and 29 September 1994 for hearing and also drawing their attention to the fact that they had not filed any statement of defence but it was only on 23 September 1994 some days to the hearing date that the defendants/applicant's solicitors wrote to the court praying for an adjournment proffering the absence from the country of the reporter who allegedly wrote the story and the ill health of Mr Awokoya as reasons for seeking for the adjournment and it was only on that date that they initiated the settlement moves. Despite, the fairly long adjournment given from September 1994 to January 1995, the defendant/applicant neither filed a statement of defence nor appeared in court on 18 January 1995, when hearing started . . . I dare say that going by the foregoing, the conduct of the defendant/applicant is a bit reprehensible and ordinarily I should refuse to exercise the discretion in their favour. However since there are no hard and fast rules about the exercise of such discretions, I weigh the need to allow for a cross-examination of the PWs against strict adherence to the rules of practice and procedure as I form the view that in the circumstances of the case the justice of the matter would be better served if I allow such cross-examination but on terms."

And so the learned trial Judge indulged the defendant by allowing Counsel to cross-examine the witnesses.

Although, the learned trial Judge made an order in his ruling of 24 April 1995 that the defendant should pay the sum of N45,000 into Court within two weeks as security for costs of recalling the four witnesses, the order was not complied with when the judgment was delivered on 9 May 1996. It should be noted here that the learned trial Judge said in his ruling that if the defendants/applicants defaulted to make the payment of N45,000 within two weeks as security for costs, the court "shall proceed with the continuation of the hearing of the remaining witnesses."

Without complying with the above order, Counsel for the defendant, in a motion dated 22 May 1995, prayed the court to strike out the suit, set aside the issuance and service of all the originating summons on the ground that the court lacked the jurisdiction to entertain the cause of action. On 24 July 1995 the learned trial Judge held that he had jurisdiction in the matter. He dismissed the motion.

After the 24 July 1995 ruling, the court went on vacation. On 14 September 1995 the matter was mentioned but both parties were absent. So too on 26 October 1995. Although the matter was adjourned to 22 November 1995, the Court did not sit. The Court sat on 28 November 1995. Only Counsel for the plaintiff was present. He drew attention of the Court to its order of 24 February 1995 on the payment of N45,000 as security for costs which was not complied with by the defendant. He sought for the discharge of the order, which the learned trial Judge granted as prayed.

The case for the plaintiff was closed. The matter was adjourned to 23 January 1996 for the case of the defendant. Come 23 January 1996, the defendant and Counsel were absent, although Counsel for the defendant had knowledge of the date. As two days were set for the matter, it was adjourned to the following day, 24 January 1996 but both defendant and Counsel were again absent.

Counsel for the plaintiff urged the Court to hold that the defendant was no longer interested in putting up a defence to the action. The learned trial Judge agreed with Counsel and "deemed that they had no defence to offer." He consequently adjourned the matter to 14 February 1996 to enable Counsel address him. On 14 February 1996, Counsel for the plaintiff addressed the court and the matter was adjourned to 20 March 1996 for judgment. As the judgment was not ready, the learned trial Judge adjourned again to 9 May 1996 for judgment. Before judgment and precisely on 25 March 1996, Counsel for the defendant filed a motion asking for the following two prayers:-

"(1)   An order arresting the judgment to be delivered in the suit. of the court granting leave to the defendants/applicants to adduce oral and documentary evidence and open its defence in the suit before judgment is entered."

Page 219 of (2006) 1 All N.L.R. 211

The learned trial Judge reacted to the motion at page 77 of the Record as follows:-

"The motion is supported by a 37-paragraph affidavit. I have carefully gone through those paragraphs and am of the opinion that most of them are outright falsehoods and are only crafted in order to waste the time of the court and are indeed an abuse of the court's process . . . These excuses are only such excesses and are no reasons for either arresting a judg-ment or reopening a case closed for lack of serious prosecution by the defendants. In my opinion the application to arrest the judgment of the Court is only a gimmick designed to forestall the delivery of the Judgment for as long as the defendants wish, I recognise it for the gimmick it is and that is why I refused to give any attention to it more so when the main reason why defendants want the judgment arrested is to enable them to provide oral and documentary evidence . . . For these and the larger reasons I stated earlier I do not think it is just or equitable to further waste time on applications such as the one in Motion No FCT/HC/M/184/96. The judgment will therefore not be arrested because there is no valid warrant for its arrest."

Not satisfied, the defendant as appellant appealed to the Court of Appeal. That Court dismissed the appeal. On the issue of arresting the judgment, the Court of Appeal said at pages 146 and 147 of the Record:-

"On the main issue of not listing the motion to arrest the judgment, I am of the view the motion was a mere ploy to delay the determination of the matter . . . In my view, the application to arrest the judgment after all the opportunities granted to the appellant which it deliberately refused to take was merely calculated to hinder the due administration of justice."

Dissatisfied, the appellant has come to the Supreme Court. Briefs were filed and exchanged. The appellant formulated two issues for determination:-

"4.1. Whether the Court of Appeal was right in upholding the trial Judge's refusal to hear the Appellant's application to arrest the judgment and defend the suit.

4.2.  Whether the refusal to hear the Appellant's application to arrest the judgment was a violation of the Appellant's fundamental right to fair hearing under section 33 of the 1979 Constitution as amended."

The respondent formulated the following single issue for determination:-

"Whether the Court of Appeal was right in holding that the learned trial Judge's consideration and dismissal of the Appellant's motion dated 25 March 1996 without taking arguments from Counsel to both parties was in the circumstances of the case not a violation of the Appellant's right to fair hearing."

Arguing the issues in his Brief of two pages together, learned Counsel for the appellant, Mr T.O.S. Fadahunsi, submitted that while a trial Judge has a discretion to grant or refuse an application, the discretion must be seen to be exercised judicially and judiciously? and a party aggrieved of the exercise of the discretion is at liberty to appeal. He cited Onyekwuluje v Animashaun (1996) 3 SCNJ 24 at 25. Citing Nalsa and Team Associate v NNPC (1991) 8 NWLR (Part 212) 652 at 660 and Otapo v Sunmonu (1987) 2 NWLR (Part 58) 587 SC, learned Counsel submitted that it is the duty of a court to hear every application properly brought before it. He submitted that the hearing cannot qualify as fair hearing under the audi alteram partem rule. He cited Olumesan v Ogundepo (1996) 2 SCNJ 172 at 174. The refusal of the learned trial Judge to hear the application properly before it was a fundamental one that goes to the root of the whole hearing and it is fatal to the proceedings and renders same a nullity. He cited Ekiyor v Bomor (1997) 7 SCNJ 479 at 480. He urged the court to allow the appeal.

Learned Counsel for the respondent, Mr O.A.R. Ogunde, raised a preliminary objection in his Brief. He submitted that the ground being a ground of fact or at best a ground of mixed law and fact, leave of either the Court of Appeal or the Supreme Court ought to have been first sought and obtained. As the appellant did not seek leave, the appeal should be struck out. He cited Obatoyinbo v Oshatoba (1996) 5 NWLR (Part 450) 531? Metal Construction (WA) v Migliore (1990) 1 NWLR (Part 126) 299 without the page number. Counsel pointed out that the appeal does not come within section 233(2)(b) or (c) of the 1999 Constitution. He said that the word "question" has often been interpreted to mean "issue for determination." He cited Olawoyin v COP (1961) 2 SCNLR 228 and argued that in considering whether or not a ground of appeal comes under section 233(2)(b) or (c), the question for determination must depend upon the interpretation of the appropriate constitutional provisions and a starting point in the consideration of such a ground is to consider whether or not it is such an issue for which a full court will be constituted. Counsel thereafter suddenly moved to another issue in section 234 of the Constitution on the number of Justices that can sit in a matter. He thereafter jumped to the issue of proliferation of cases relating to the application of section 33 which were decided by a panel of only five justices. Counsel cited some cases. I think I can stop here in the preliminary objection.

Frankly, I am thoroughly confused and the more I go on the submission on the objection, I will never get my bearing. Let me stop here. I will react to it later in the little way I understand it. That may not be the way Counsel understands it. He has not really helped the court in his submission.

Taking the only issue, learned Counsel submitted that the decision of the Court of Appeal affirming the dismissal of the appellant's motion filed on 25 March 1996 without taking arguments is unassailable. I thought that I have left the argument on the preliminary objection for good but I am in some mistake. Counsel roped it in once again when he argued the only issue by submitting that the appeal is incompetent as it is not against the decisions of the trial court or the Court of Appeal as their decisions relate to the motion dated 25 March 1996 and not the motion dated 24 April 1996. He urged the court to dismiss the appeal as totally frivolous.

Learned Counsel took the cases cited in the appellant's brief and submitted that they are not apposite to this appeal. Justifying the procedure adopted by the learned trial Judge, Counsel cited a number of cases. (Magner Maritime Services Ltd v Oteju (2005) 14 NWLR (Part 945) 517? Oyekan v Akinrinwa (1996) 7 NWLR (Part 459) 128? Onajobi v Olanipekun (1985) 4 SC (Part 2) 156? Ayisa v Akanju (1995) 7 NWLR (Part 406) 129 and Onogwu v The State (1995) 6 NWLR (Part 401) 276). It was the submission of learned Counsel that as the appellant had not less than ten opportunities to present its defence but failed to do so, there cannot be a valid complaint that the appellant's right to fair hearing was breached. To learned Counsel, that is not only a fallacious assumption but also a complete misconception. He urged the court to dismiss the appeal.

Let me first take the preliminary objection. It appears to be in two parts. While I understand the first part dealing with the issue of leave on alleged ground of law and fact, I do not think I understand properly the second one tied to the Constitution and ambitiously moving to the Supreme Court sitting in a panel of five and the court sitting in a panel of seven, which is the full court. I will not take the second leg of the objection not necessarily because I find it difficult to understand it, but essentially because it has no relevance to the live issues in this appeal.

The straightforward objection is that the appellant ought to have sought for leave to appeal on the alleged ground of mixed law and fact. A ground of law is said to be one of mixed law and fact, if the ground of appeal is neither exclusively law nor exclusively fact. It is like a mixed grill on the lunch table. It is a hybrid situation of some law and some facts. While the point is conceded that facts are the fountain head of law and that one can hardly perforate or separate law from its factual milieu, the dichotomy between law and fact in a ground of appeal is much more than the ordinary relationship between law and fact. In other words, the mere fact that facts are the fountain head of the law, does not, in my humble view, apply mutatis mutandis to the regime of both in the couching of grounds of law as it relates to obtaining leave. In dealing with grounds of law, the court must be satisfied that the content of law is inseparable from the content of facts as if they are siamese twins, so much so that seeking leave becomes a desideratum. I think our adjectival law anticipates such a situation and not because there is some taint of fact in the law. content of facts as if they are siamese twins, so much so that seeking leave becomes a desideratum. I think our adjectival law anticipates such a situation and not because there is some taint of fact in the law.

Putting the position nakedly, a question of mixed law and fact will prevail where the facts struggle with the law for first place in the ground of appeal? not because some infinitesimal facts edify the law. Let courts of law not over blow this aspect of our adjectival law which is really fluid and therefore difficult to apply in practice. A little grain of fact in the law should not tilt the position to straight mixed law and fact. That will leave our adjectival law in this area highly polarised and cannot be policed or handled effectively.

With the above, I now take the ground of appeal. It is on fair hearing. That is the complaint and Counsel for the appellant cited section 33 of the 1979 Constitution. In most cases, particulars of error give away the ground as one of facts. I have examined the particulars and the beef of the particulars relate to law. They repeat section 33 of the 1979 Constitution and stated that the Supreme Court has decided in a plethora of authorities on the section and finally stating that the proceedings were a nullity. In my view all these are issues of law, that is, section 33, the case law on the section and the nullity of the proceedings. In sum, I am satisfied that the only ground of appeal deals with law for which no leave is required. The preliminary objection fails.

The first issue is on the learned trial Judge's refusal to hear the appellant's application to arrest the judgment with a view to defending the suit. The state of the law is that a court must hear a motion or any process before it, however unmeritorious. A court should not ignore a motion or process before it and give a decision one way or the other without considering the motion or process. That is good and valid law.

Learned Counsel for the appellant, relying on the case of Onyekwuluje v Animashaun (1996) 3 NWLR (Part 439) at 637 called the attention of the decision of this Court to the effect that "the objection should not have been ignored." In that case, this Court held that it is a cardinal principle of the administration of justice to let a party know the fate of his application whether properly or improperly brought before the court. It will amount to unfair hearing to ignore an objection raised by a party or his Counsel against any slip in the proceedings. The court is duty bound to express in writing whether it agreed with the objection or not. Although the issue may be technical in nature, but where technicality touches a fundamental objective to fair hearing it cannot be ignored.

What are the relevant facts in Onyekwuluje (supra)? Counsel for the appellant raised an oral objection in the Court of Appeal to the competence of certain grounds of appeal filed by the respondents. The respondent's Counsel then objected, contending that the appellant's Counsel ought to have brought the objection by way of motion. The appeal was then argued. In its judgment, the Court of Appeal neither ruled on the appellant's objection on the said day nor considered same in its final judgment. It was in the above circumstances this Court allowed the appeal and ordered a retrial.

Are the circumstances the same in this appeal, I ask? The answer is, no. In this case, although the learned trial Judge did not rule on the motion when it was brought, he finally did so in his judgment. That is the alternative procedure this Court said in Onyekwuluje (supra), that is, the court should either rule on the motion on the day of the objection or on the day final judgment is delivered. In considering the motion in his final judgment, the learned trial Judge examined the motion when he said at page 77 of the Record, and I quote it at the expense of repetition or prolixity:-

"Before then and on 25 March 1996, the defendant's Counsel Mr Quadri filed a motion on notice brought pursuant to the inherent jurisdiction of the court praying for a date to enable him be heard for:-

(1)    An order arresting the Judgment to be delivered in the suit.

(2)    An order of the court granting leave to the defendants/applicants to adduce oral and documentary evidence and open its defence in the suit before judgment is entered.

The motion is supported by a 37-paragraph affidavit. I have carefully gone through those paragraphs and am of the opinion that most of them are outright falsehoods and are only crafted in order to waste the time of the Court and are indeed an abuse of Court's process . . . I took great pains to set down and highlight all that had taken place during the pendency and subsequent hearing of this matter and is my considered opinion that it is not enough and is certainly not just for the defendants to simply state as they did in paragraphs 20, 21 and 22 of the affidavit in support of the motion that they had received no hearing notice since 23 November 1995 or that a particular Counsel in the plaintiff's Chamber had been bereaved and had stayed away from office from November 1995 to January 1996 or that the defendants had tried to reach the Court's Registrar by phone in order to get hearing dates but could not get through. These excuses are only such - excuses and are no reasons for either arresting a judgment or reopening a case closed for lack of serious prosecution by the defendants. In my opinion the application to arrest the judgment of the Court is only a gimmick designed to forestall the delivery of the judgment for as long as the defendants wish."

The above is a most adequate consideration of the motion to arrest the judgment. In the circumstances, Onyekwuluje (supra) does not apply, and I so hold.

There still remains a point and it is the refusal of the learned trial Judge to hear Counsel move the motion. Can that vitiate or nullify the decision of the learned trial Judge? I think not. Although the learned trial Judge did not formally hear Counsel on the motion, he really considered it in the judgment and came to a conclusion that I cannot fault. In my view, there is no miscarriage of justice by not formally hearing the Counsel in the peculiar circumstance of this case, and the peculiar circumstance is that the learned trial Judge thoroughly considered the motion and gave a brilliant judgment which I cannot fault.

If what I have said above is not enough to justify the decision of the learned trial Judge, I will invoke the powers conferred on this Court by section 22 of the Supreme Court Act and the result of the invocation of the section is that I place myself in the position of the trial Judge and do what that court should have done. In that position of changing batons like athletes in a relay race, I come to the same conclusion as the learned trial Judge. In coming to the same conclusion, I have carefully read the affidavit in support of the motion and I do not see any merit. Has the appellant suffered any injustice in my action? I do not see any injustice. I say this because I have used the case law in his brief, a possible case law he should have used in the trial court. Looking at this issue from all possible angles, I am of the firm view that it must fail and it accordingly fails.

That takes me to the second issue. It is in respect of the alleged refusal of the learned trial Judge to hear the appellant's application to arrest the judgment. There is not much difference between the two issues except that the second issue is tied to the fair hearing principle in the Constitution. I will take the issue in the way Counsel formulated it.

Counsel, quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of the case before the court. Some resort to it as if it is a magic wand to cure all ills of the litigation. A good number of Counsel resort to the principle even when it is inapplicable in the case.

The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That would not be justice. That would be injustice.

It is the duty of the Court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the Court and Counsel must not instigate his client to accuse the court of denying him fair hearing.

A trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party. At that stage, the trial Judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his doorsteps by the trial Judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal.

The fair hearing principle formerly entrenched in section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even when such so-called wrongdoing is, as a matter of fact, propelled or instigated by the party, through his Counsel.

Counsel qua advocate as an expert of law has an unfettered right to advise his client on what line of action to take in the light of the applicable law. While there cannot be any argument on this right of Counsel, the owner of this big power, he is expected to exercise it only in the light of the enabling law in the matter. He should take into serious consideration that the client, the novice in law, will have no choice than to rely wholly and fully on the position of the law as given to him by Counsel.

I believe that the way Counsel conducted the matter was his way and the client, the novice in the law, had no choice than to follow him. He used all the delaying tactics that he knew and were available to him. They were not one, not two, not three but many. He thought that by using such tactics he will finally get his way and when the learned trial Judge adjourned for judgment, Counsel thought, and very wrongly for that matter, that he had caught the trial Judge in the trap or web. He thought, and again, wrongly for that matter, that the appellate courts will be with him when he dangles the fair hearing principle entrenched in the Constitution. He got it very wrong. He got it all wrong too. And so the