HON. JUSTICE SOTONYE DENTON WEST V. HON. NIMI WALSON JACK & ORS.

HON. JUSTICE SOTONYE DENTON WEST V. HON. NIMI WALSON JACK & ORS.

coat_of_arms_compressed

In The Supreme Court of Nigeria

On Friday, the 24th day of May, 2013

Suit No: SC.15/2009

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN        – Justice of the Supreme Court

MOHAMMAD SAIFULLAH MUNTAKA-COOMASSIE     -Justice of the Supreme Court

NWALI SYLVESTER NGWUTA    – Justice of the Supreme Court

OLUKAYODE ARIWOOLA               – Justice of the Supreme Court

MUSA DATTIJO MUHAMMAD     – Justice of the Supreme Court

 

Between

HON. JUSTICE SOTONYE DENTON WEST        -Appellant

And

1. HON. NIMI WALSON JACK

2. THE CHIEF REGISTRAR

3. THE HON. ATTORNEY GENERAL, RIVER STATE RIVERS STATE JUDICIARY         – Respondents

 

 

COUNSEL:

Frank A. Chukuka           – For Appellant

Sonny O. Wagu Esq, with C. P. Egwuatu (Mrs)          – For the 1st Respondent.

Mr. Worgu Boms Esq., A-G Rivers State, with Mrs. N. C. Wroegbu,    – For the 2nd and 3rd Respondents

JUDGEMENT:

MUNTAKA COOMASSIE, J.S.C.: (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal Port-Harcourt Division. The 1st Respondent had earlier filed an Ex-parte Motion dated 22/11/1997 for leave to apply for enforcement of his fundamental human rights. The trial court by its ruling dated 25/11/97 granted the reliefs contained in the said motion ex-parte and adjourned the matter to 9/12/97 for the hearing of the substantive application which never had an opportunity of being heard because the appellant filed a preliminary objection. The lower court dismissed the said motion. The appellant being aggrieved against the decision of the lower court as a result appealed to this court on a Notice of Appeal containing six (6) grounds of appeal.

GROUND 1

The learned justices of the Court below erred in law, when they affirmed the decision of the trial judge, when she assumed jurisdiction to entertain the 1st respondent's application for leave, inter alia, to quash the proceedings pending before the appellant sitting as a judge of the Rivers State High Court, a Court of coordinate jurisdiction, in suit No.PHC/891/95.

GROUND 2

The learned justices of the Court of Appeal erred and misdirected themselves in law, when they decided the substance of the issue before the trial court when the appeal before them was on an interlocutory matter.

GROUND 3

The learned justices of the Court of Appeal erred in law when they held that the appellant, a judge of a State High Court failed to avail herself of the protection provided by judicial immunity as a judicial officer in respect of acts done by her in the course of her duty as such judicial officer, has a duty to satisfy the trial Court, a Court of coordinate jurisdiction, that she reasonably believed that she had jurisdiction over the acts complained of by the1st respondent and to further satisfy the trial court that she did the said acts in good faith.

GROUND 4

The learned justices of Court of Appeal with due respect erred in law when they held that the issue of jurisdiction raised by the appellant is premature.

GROUND 5

The learned justices of Court of Appeal with due respect erred in law when they held that appellant failed to meet the requirements stipulated by section 55 of the High Court Law, Laws of Eastern Nigeria Vol.4 (Cap.61) 1963.

GROUND 6

Learned justices of Court of Appeal with due respect erred in law when they held that the trial judge acted within the limits of its jurisdiction when she heard the application by the 1st respondent for enforcement of his fundamental rights.

In order to fully appreciate the nature of this case it is necessary to briefly set out the facts of the case. The appellant, then a judge of the Rivers State High Court of Justice was presiding over a case involving Mrs. Baby B. Amadi Woko v. Mrs. Catherine Acle and others. In the course of hearing he ordered for the issuance and service of civil subpoena on the 1st respondent at his own instance without the application of any of the parties to the case. When the 1st respondent failed to appear, he ordered a bench warrant to be issued for the arrest of the 1st respondent who was not a party to the case. As a result, the 1st respondent filed an application for the enforcement of his fundamental human right via a motion ex-parte at the River State High Court of Justice presided by Mary Odili, (as he then was) where he sought the following reliefs:

1. That the issue and service of civil subpoena on the application by the Hon. Justice (Ms) Sotonye Denton-West in civil suit No. PHC/891/95 between Ms. Baby B-Amadi Woko and Mrs. Catherine Akor and Ors in which the application is not a party and not required to give evidence by either the plaintiff or the defendants is a denial of right to fair hearing, a threat to the liberty of the applicant and threat to his freedom of movement;

2. Setting aside the subpoena on the ground that it is unconstitutional, illegal and a breach of the applicant's fundamental rights."

3. Injunction restraining the respondent by themselves, their servants and agents from compelling the attendance of the application in response to the civil subpoena.

4. Declaring that the applicant cannot be compelled to discuss the source of his information published at pages 6 and 7 in vol. 5 No. 19 0f the Lawfair Journal of July/August 1997".

The learned judge granted the ex-parte application and adjourned the motion on Notice for hearing. Before the hearing of the motion on Notice, the appellant filed a preliminary objection in which it was contended that the trial Court has no jurisdiction to entertain the action. The trial Court dismissed the preliminary objection. The appellant dissatisfied with the ruling appealed to the Court of Appeal Port-Harcourt Division. The Court of Appeal, now lower Court, dismissed the appeal. In conclusion the Court held as follows:-

"In the end result, this appeal is unmeritorious and it is accordingly dismissed. I hereby affirm the ruling of the lower Court dismissing the appellant's preliminary objection as being premature. The case which was hitherto stalled as a result of the appeal is hereby remitted to the Hon. Chief Judge of River State for assignment to another Judge for hearing forthwith".

It is against this decision that the appellant has again appealed to this Court. The parties have, through their respective counsel, filed and adopted their briefs of argument.

The appellant formulated three issues for determination as follows:-

i. Whether the issue of jurisdiction raised by the appellant can be determined on the face of the Proceedings.

ii. Whether the court of Appeal rightly interpreted Section 55 (1) of the High Court law, laws of Eastern Nigeria Vol. 4 (cap. 61), 1963, in favour of 1st respondent.

iii. Whether the Court of Appeal was right, when the said Court held that the trial Court acted within the limit of its jurisdiction, when the said Court heard the 1st respondent's application for enforcement of his fundamental rights.

The appellants counsel urged this Court to allow the appeal on the ground that there is an obvious miscarriage of justice at the lower Court. The appellant urged this Court to set aside the decision of the lower court.

Under issue one, counsel for the appellant submitted that it was erroneous for the justices of the Court of Appeal to hold that the appellant did not place enough materials before the learned trial judge to enable the said Judge determine the issue of jurisdiction raised before the said judge by the appellant.

It was the position of the Appellant that the appellant is covered with immunity as 1st respondent's cause of action at the trial court relates to an act done by the appellant in the performance of its judicial function. Learned counsel continued and submitted that it was erroneous for the court below to hold that the appellant did not place enough materials before the trial court to enable the trial court resolve the issue of jurisdiction raised by the appellant. That being the case, learned counsel urged this court to resolve the 1st issue in favour of the appellant as the appellant has placed enough and sufficient materials before the trial court. He therefore urged this court to hold that the appeal succeeds and same be allowed.

Arguing issue No. 2 which says that:

"Whether the Court of Appeal rightly interpreted section 55(1) of the High Court Laws of Eastern Nigeria Vol. 4 (Cap 61), 1963, in favour of 1st respondent."

The appellant contended that a judge is fully immuned from any act done or ordered to be done by him in the discharge of his judicial duty when he acts within his jurisdiction. Learned counsel clearly submitted that even if a judge acts in bad faith or improper motive in the dispensation of his official duty such act can never be held against him. That being the case, the learned appellant's counsel contended that once the judge thinks he was acting within his jurisdiction he is fully protected. He urged this court to hold that the court below wrongly interpreted section 55 (1) of the High Court Law, Laws of Eastern Region which is in pari material with section 88 (1) of the High Court Law of Lagos State, laws of the High Court Eastern Region does not protect the appellant. In view of this submission, Appellant's counsel asked this court not to apply the decision enunciated in the case of Candide-Johnson v. Edigi (1990) 1 NWLR (Pt.129) p.659. Learned counsel vehemently contended that the judgment of this Court in Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) p.549 is preferred.

The appellant should therefore be taken as having full immunity of what it did. The act of appellant was done in good faith. Learned counsel heavily relied on the decision of this court in the case of Egbe v. Adefarasin (supra) at p.567 by Karibi- Whyte, JSC (as he then was):

"It is of considerable interest to the administration of justice and the stability of our society and constitution that the thin and fragile fabric of our judicial wall should be protected from the wanton attacks of irate litigants whose only grievance is that they have lost their cause or falsely believe that they are persecuted. However, even where the grievance is right, where the effect is aimed at creating a destabilising effect in the administration of justice the greater interest of the public in society and in the maintenance of uninhibited administration of justice must prevail. The claim of the appellant falls within the category of cases where public policy put its weight behind the administration of justice to protect the judge from wanton attack".

The learned appellant's counsel urged this court to resolve this issue in favour of the appellant and to hold that by virtue of the Egbe v. Adefarasin (supra) the appellant is protected with judicial immunity as provided in section 55 (1) High Court Law, Laws of Eastern Nigeria and to then allow the appeal.

On the 3rd issue it was the contention of the appellant's counsel that there was a competent order made by the appellant while presiding at the High Court No. 3, Port-Harcourt. The 1st respondent, counsel continued, ought to have exercised his constitutional right of appeal as provided in 1979 Constitution, instead of applying to a court of coordinate jurisdiction to set aside a competent order. He then submitted that a judge is a public officer. In the discharge of his judicial duties, consistent with his oath of office to do justice to all manner of people without fear or favour, and without affection or ill, his conduct is exposed daily to criticism by persons who are affected by his decision. He then submitted that this issue be resolved against the respondents and appeal be allowed. The learned counsel contended that the lower Court erroneously exercised its discretion in favour of the 1st respondent. He submitted that this is a situation where this court should interfere with the judgment of the lower court.

The 1st respondent, Hon. Nimi Walson-Jack filed a Notice of Preliminary objection in which two issues were distilled thus:-

i. Whether this appeal is competent having regard to the failure of the appellant to comply with the provisions of Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 and Order 8 Rule 2 (3) and (4) of the Supreme Court Rules.

ii. whether the appellant's appeal can be pivoted on points conceded by the appellant before the lower court.

The gravamen of this objection as contended by the 1st respondent relates to grounds 1 – 5 of the grounds of appeal are of mixed law and facts and not purely grounds of law. If that is so, the appellant required the leave of the lower court or of this court before the appeal can be sustained.

According to the appellant, since no leave was obtained by the appellant, the appeal may be declared incompetent by virtue of Section 233 (3) of the 1999 Constitution as amended. He relies also on Opulyo v. Omoniwari (2007) 16 NWLR (pt.1060) p.415 at p.431.

The 1st respondent, under this issue, submitted that the appellant has woefully failed to fault the said finding or show any error on the face of the record occasioning a miscarriage of justice. He therefore urged this court to resolve issue No. 1 in their favour and dismiss the appeal.

It was also contended by the 1st respondent that the learned justices of the lower court rightly held that the appellant failed to meet the requirements stipulated by section 55 (1) of the High Court Law, Laws of Eastern Nigeria Volume 4 (cap.1) 1963, because of the importance of the law Section 55 (1) thereof the learned counsel to the 1st respondent reproduced it as follows:-

''No judge or person appointed under the provisions of section 7 of this law to act as a judge shall be liable for any act done or thing said by him in the course of any proceedings before him, provided that at the time he, in good faith, believed himself to have jurisdiction in such proceeding".

The learned counsel contended that in the case at hand, the learned justices of the Court of Appeal were faced with affidavit evidence before them showing that:-

a). 1st respondent was served with a civil subpoena No. 09202 issued by the appellant, wherein the 1st respondent was commanded to appear before the appellant in respect of suit No. PHC/891/95 (Mrs. Baby Beatrice Amadi Woko v. Mrs. CatherineAkor and Ors).

(Italics supplied)

b). The 1st respondent was not a party to the said suit and did not know the facts of the case. Furthermore, neither the plaintiffs nor the defendants in the said suit applied to the court presided over by the appellant to have the 1st respondent testify on their behalf.

c). The issuance of the civil subpoena was sequel to the news story which the 1st respondent (the publisher of LAWFAIR Magazine) published about the appellant in Vol. No. 19 of July/August 1997 edition of LAWFAIR Magazine.

d). The appellant proceeded to order that a bench warrant be issued for the arrest of the 1st respondent for failing to appear in court in response to the said Civil subpoena.

e). Learned counsel further contended that all attempts made by the 1st respondent's counsel to obtain a certified true copy of the proceedings relating to the order issuing the said subpoena and the order for the 1st respondent's arrest and detention failed because the appellant deliberately refused to release the court record book and the case file relating to the subject matter. (Counsel referred to pages 26 to 28 of the record).

Learned counsel then submitted that the position of the law is that trial judge cannot call a witness not called by the parties in civil cases except with the consent of the parties. He cites in support the case of Eric Ordor v. James Nwosu & Anor (1974) All NWLR page 95 at 963.

Learned counsel contended that based on the aforesaid facts before them and the position of the law, the learned justices of the Court of Appeal rightly held that there was no discernible good faith in the general conduct and the action of the appellant in issuing a civil subpoena and subsequently a bench warrant against the 1st respondent on account of a news publication; and that the appellant failed to meet the requirements stipulated by section 55 of the High Court Law.

Consequently, learned counsel further submitted that the claim to judicial immunity by the appellant cannot be sustained, without more, to dispossess the lower Court of its jurisdiction. He referred to pages 133 – 134 of the record.

I think it was clear from the other similar case, that unlike the other case, in the instant case, there was no application by any of the parties before the appellant for the issuance of a witness subpoena or issuing bench warrant. The 1st respondent was not a party to the suit before her and the aforesaid processes were not in any way relevant or related to the determination of same. Comparatively, while the acts of the Honourable Judge in Egbe's case was coram judge (a judicial function) the acts of the appellant herein were clearly coram non judice.

Learned counsel then submitted that there is absolutely nothing judicial about the appellant "procuring" a witness subpoena that none of the parties before her asked for, all in a bid to actualize her threat that the 1st respondent must tell her how he, 1st respondent got the letter which formed the basis of his publication. He urged this court to hold that the action of the appellant had gone beyond the purview of judicial function to the pursuit of a personal vendetta the case SIRROS v. MOORE (1994) 3 All E.R.776 was cited with approval in the case of Egbe v. Adefarasin (supra) where Buckley L.J at p.787 – 788 has said:-

"In determining whether a judge is liable for some act which he purports to have done In his judicial capacity, the sole question may, I think, be said to be where it was an act coram non judice. If he were then not performing a judicial function, the act was not coram judice and the Judge has no protection" It was therefore the submission of the learned counsel to the respondent that on the basis of the peculiar facts of this case and position of the law that the finding of the lower Court that the appellant failed to meet the requirements stipulated by section 55 (1) of the High Court law remains impeccable and has not been faulted by the appellant. He then urged the court to resolve issue No. 2 in favour of the 1st respondent and to dismiss the appeal.

Briefly, issue No.3; it was submitted that the learned justices of the Court of Appeal rightly held that the trial court acted within the limit of its jurisdiction when it heard the application by the 1st respondent for the enforcement of his fundamental human right.

The brief summary of the total submission of the learned counsel under this issue is that where the violation of the fundamental rights of an individual is carried on by a Judge of the High Court albeit outside the purview of a judicial function, that individual has no redress in law. He cannot seek redress from a High court for that would mean judges of the same degree that is of co-ordinate jurisdiction making contradictory and inconsistent orders" it must be borne in mind that he cannot go to the Appellate Courts for those Courts have no original jurisdiction over such matters. He is therefore left to watch helplessly as his fundamental rights are trodden upon. With respect, this does not represent the position of the law.

In the final analysis, it is submitted that the Court of Appeal was right in holding that the infringement of the 1st respondent's fundamental rights arising from the acts or omissions of the appellant was not exempted from redress because the appellant was presiding over a Court of coordinate jurisdiction. He then urged this Court to resolve this third (3) issue in favour of the 1st respondent. He also urges Court to dismiss the appeal as devoid of merits, and uphold the judgment of the lower Court.

All said and done, learned counsel for the 2nd and 3rd respondents submitted that the appellant is not protected by section 55 (1) of the High Court Law, Laws of the Eastern Nigeria or the principles enunciated by the Honourable justices of this court when it deliberately went outside the purview of the circumstances created by the said law.

My lords, I have thoroughly considered all the live issues presented to us for consideration of this appeal, in all the parties briefs of argument and I hold that it goes without saying that the rule of law and access to justice must be maintained always.

The trial court in exercise of its judicial function acted within the law and procedure and its action is commendable. The Court of Appeal in my view rightly held that the trial Court acted within the limit of its jurisdiction when the trial Court heard the 1st respondent's application for enforcement of his fundamental rights as depicted on pages 135 lines 21 – 24 of the record.

This Court, times without number declared that this Court will not interfere with the concurrent findings, decision of the trial Court and the Court of Appeal where the said findings are reasonably justified and supported by evidence as in the instant case.

(i) Awoyoola v. Aro (2006) All FWLR (pt.308) p.1319,

(ii) Oyebanji v Lawanson (2008) All FWLR (pt.438) 236 and

(iii) Otanma v. Youdubagha (2006) All FWLR (pt.300) p.1579.

I have therefore finally come to the conclusion that this appeal lacks merit. I cannot see any reasons why the preliminary objection shall be sustained.

The preliminary objection is therefore struck out.

The appellant failed, unfortunately to meet the requirements for judicial immunity as provided under section 55(1) of the High Court law, laws of the Eastern Nigeria vol. 4 "Cap.61" 1963. I uphold the judgment of the lower Court which is correct and proper in law. I am therefore bound by the decision of Egbe v. Adefarasin supra. Appeal deserves to be dismissed which is hereby dismissed by me. I make no order as to costs.

 

 

ONNOGHEN, J.S.C.: I have had the benefit of reading in draft, the lead judgment of my learned brother, MUNTAKACOOMASSIE, JSC just delivered.

I agree with his reasoning and conclusion that both the preliminary objection appeal has no merit and should be overruled and dismissed respectively.

I therefore order accordingly and abide by the consequential orders made in the said lead judgment including the order as to costs. Preliminary objection overruled and appeal dismissed.

 

 

NGWUTA, J.S.C.: I had the honour of reading in draft the lead judgment of My Lord, Muntaka-Coomassie, JSC and I entirely agree that the appellant, as a Judicial officer, stepped outside the warm embrace and protection of Section 55 (1) of the High Court Law Cap 1 Volume 4, Laws of Eastern Nigeria 1963.

It provides:

"S.55(1): No judge or person appointed under the provision of Section 7 of this Law to act as a judge shall be liable for any act done or thing said by him in the course of any proceedings before him, Provided that at the time he, in good faith, believed himself to have jurisdiction in such proceedings." Parties to suits choose who to call as their witnesses and may pray the Court to issue civil subpoena to secure the attendance in Court of such witnesses where the need arises. The Judge has no personal stake in the matter before him. He cannot fish for a witness against whom to issue civil subpoena to testify in the case.

On the facts of this case, it is clear that the issuance of civil subpoena and consequent bench warrant on the 1st Respondent was in pursuant of personal vendetta in connection with a matter extraneous to the proceedings before His Lordship.

The action of the Judge borders on abuse of process of Court in that the civil subpoena and the bench warrant, both processes of Court, had not been issued bona fide and property. See Central Bank of Nigeria v. Saidu H. Ahmed & Ors (2001) 5 SC (Pt.11) 146; Edjerode v. Ikime (2001) 12 SC (Pt.11) 125. If anything, the abuse assumes an alarming dimension when it is committed by the judex, as in this case. It is also an abuse of judicial process. See FRN v. Abiola (1997) 7 NWLR (Pt.448) 444; MV Scheep v. MV S Araz (2001) FWLR 551.

In my view, the civil subpoena and the bench warrant issued subsequently were issued to achieve ends other than those for which the power to issue the processes were donated to the Honourable judge.

Issue 3 in the appellant's brief questions the jurisdiction of the trial Court to hear the 1st Respondent's application for enforcement of his fundamental rights. Section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for special jurisdiction of the High Court in the following terms:

"S.46 (1) Any Person who alleges that any of the provisions of the Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress."

It makes no difference where the contravention or threat of contravention is coming from. No person or body of persons, natural or legal, or institution is exempt from the above provision. The High Court does not lose its special jurisdiction to deal with enforcement of fundamental rights because the hunter happened to become the hunted.

Based on the above and the fuller reasons in the lead judgment, I also dismiss the appeal as devoid of merit.

 

 

ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Muntaka Coomassie, JSC and I am in agreement with the conclusion that the appeal deserves to be dismissed for being devoid of merit and substance.

Accordingly, I too dismiss the appeal and make no order as to costs.

 

 

MUHAMMAD, J.S.C.: I had a preview of the lead judgment of my learned brother Muntaka-Coomassie JSC, just delivered and agree with his lordship's reasoning and conclusion that the appeal lacks merit. I adopt the judgment as mine in dismissing the unmeritorious appeal. I also abide by the consequential orders made in the lead judgment.