CITATION: (2004) LPELR-SC.218/2000
1 Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472
2 (2004) 20 NSCQR 21
Nigerian Coat of Arms
In The Supreme Court of Nigeria
On Friday, the 17th day of December, 2004
Suit No: SC.218/2000
MR. MIKE OKOYE Respondents

The only substantive issue to be determined in this appeal is this: when a court is faced with contempt ex facie curiae and a challenge to its jurisdiction, which of them is the court bound to deal with first?

Before considering this issue, let me set out or recall briefly, the facts giving rise to this appeal.

The appellant was at the material time, the Managing Director of Nigerian Deposit Insurance Corporation (NDIC) a Federal Government Corporation involved with the implementation of the provisions of the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 as amended. One Clement Udemezue a Manager of African Continental Bank Nassarawa-Eggon Branch was arrested and detained under the Decree and while in detention, the said Udemezue died in a hospital in Jos. Thereafter, precisely on 30th June, 1998, the respondent who was counsel to the deceased Manager, wrote to the Lagos State Attorney-General requesting him to prosecute the appellant for the murder of the deceased whose medical care while in prison custody, according to the respondent, was carelessly taken by the Police and the appellant. The Attorney-General refused to respond and the respondent applied to the Lagos High Court for an order of mandamus to force the Attorney-General to prosecute the appellant for murder of Udemezue (deceased). The High Court heard the application and ruled in August 1998 that it had no powers to do so and dismissed the application.

The letter which the respondent wrote to the Attorney-General Lagos State somehow got into the hands of many news media in Nigeria who published it in their different daily papers. The appellant read these publications and found that the materials contained therein constituted libel on his person. He then instituted a libel action against the respondent in the High Court Abuja on 14th December, 1998.

On the 13th January, 1999 the respondent filed a notice of preliminary objection challenging the jurisdiction of the Abuja High court to entertain the libel action. On the 12th April, 1999 when the notice of preliminary objection was moved the learned trial Judge recorded on p.92 of the record of appeal thus:

"Plaintiff absent

Defendant in court

Emeka Ngige for the plaintiff

Defendant/applicant appear in person

Applicant counsel We have a preliminary objection dated 13/1/99. We seek to move same. Plaintiff counsel - We have a publication here from the defendant. Therefore it should be dealt with first.

Court: My attention has been drawn to the publication which expressly shows that the ruling on 11/12/98 was never given. Hence the editor, and the 2 lawyers involved should be summoned to show cause why they should not be committed for contempt of this court. The case is to be adjourned pending then.

Applicant Counsel: We have an objection on jurisdiction. The issue should be dealt with first See Okorodudu v. NDLEA.

Court: The court order stands. The case is adjourned to 4/5/99."

The respondent was not happy with this ruling and he appealed to the Court of Appeal. The Court of Appeal found merit in the appeal. It allowed it and "ordered the respondent to go back to the trial court and move his application filed on 13/1/99", which according to the Court of Appeal should have been heard first by the trial court.

Dissatisfied with this order, the appellant filed this appeal on two grounds and in his brief raised the following issues:

1. Was the Court of Appeal right when it held in effect that a court faced with an act of contempt in facie curiae and also an issue of jurisdiction is bound to deal first with the issue of jurisdiction?

2. Did the failure of the Court of Appeal to make a determinative ruling on issues regarding the correctness and applicability of an authority cited and relied upon by the appellant occasion a miscarriage of justice.

The respondent also filed a brief in reply in which he Formulated 2 issues thus:

I. Whether in the circumstances of this case, the Court of Appeal was right in setting aside the decision of the trial court refusing to entertain First, the preliminary objection challenging the jurisdiction before going into another issue raised before the court impromptu?

2. Did the failure of the Court of Appeal to make a determinative ruling on issues regarding the correctness and applicability of an authority cited and relied upon by the applicant occasion a miscarriage of justice?

The Supreme court held that the Court of Appeal was wrong in allowing the appeal to it and setting aside the orders of the trial court. It found merit in the appeal and allowed it. It set aside the judgment of the Court of Appeal and restored the ruling of the High Court. It ordered that the case be remitted to the trial High Court for continuation.

Uche Nwokedi, Esq.
C. Chuks-Nnadi, Esq.
For the Appelants
Respondent absent and unrepresented. For the Respondents