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3PLR/1990/20  (CA)



3 NWLR (Pt. 178) 245 




GEORGE ADESOLA OGUNTADE, J.C.A. (Read the Leading Ruling)




APPEAL – Stay of execution pending appeal – General guiding principles.

CONSTITUTIONAL LAW – Right to free speech – Need to allow exercise of without impediment.

TORT – DEFAMATION- Defences -Justification – Efficacy of.

INJUNCTION- Publication of on unpublished work- When court will rest­rain.

JUDGMENT AND ORDER – Stay of execution – Relevant considerations for grant of.

PRACTICE AND PROCEDURE – Stay of execution – Relevant considera­tions for grant of.

PRACTICE AND PROCEDURE – Stay of execution – Special and excep­tional circumstances for grant of – What constitute.



Chief Chuks Muoma (with him, T.W. Owhonda-Wopara and K.C. Nwufo) – for the Applicants.


Wole Olufon (with him, Anene Nzelu) -for the Respondents.



OGUNTADE, J.C.A. (Delivering the Leading Judgment): The applicant herein had on 26 September, 1990 sought from this court the following:


(1)     Leave to appeal to the Supreme Court from a judgment of this court deli­vered on 11 July, 1990 on grounds other than those of law and


(2)     Stay of execution of the terms of judgment delivered by this court pending the de­termination of the appeal to the Supreme Court. The first leg of the applica­tion was not opposed and as we saw that the same was meritorious, we granted it on the said 26 September, 1990. We however adjourned the ruling on the second leg of the application in order to respond adequately to the de­licate issues involved and the arguments of counsel. I now give the ruling.


The prayer for stay of execution is in these words:


“granting the plaintiff/applicant a stay of execution of the judg­ment of this honourable court aforesaid so as to further restrain the defendants/appellants/respondents from publishing, market­ing, selling or circulating their book title SEARCHLIGHT ON ROSICRUCIAN ORDER, AMORC (BEDFELLOW WITH SATANIC SECRET CULT)” written by the first defendant/ap­pellant/respondent or any other libelous or defamatory mate­rial, books, articles and publications about and concerning the plaintiff/applicant pending the determination by the Supreme Court of the appeal against the said judgment of this Honourable Court dated the 11th day of July, 1990 aforesaid.”


The applicants by their Secretary, Mr. Christian Anene Okongwu de­posed to an affidavit in support of the application. Paragraghs 10, 11, 12, 13 and 14 of the affidavit read as follows:­


“10.   That the plaintiff/applicant is advised by its Counsel, Chief Chuks Muoma, which said advice the plaintiff/applicant verily believes that unless the defendants/appellants/respondents are restrained from publishing, marketing, selling or circulating their book titled, “SEARCHLIGHT ON ROSICRUCIAN ORDER, AMORC (BEDFELLOW WITH SATANIC SECRET CULT?)” written by the first defendant/appellant/respondent or any other libelous or defamatory material, books, articles and publications about and concerning the plaintiff/applicant, pend­ing the determination by the Supreme Court of the appeal aforesaid, the consequential damage to the plaintiff/applicant will be irreparable and the said appeal, if successful, will be rendered nugatory.


  1. That the plaintiff/applicant’s application for a stay of execution of the said judgment of this Honourable Court of Appeal dated the 11th July, 1990 is not in respect of any monetary compensa­tion.


12      That if the defendants/appellants/respondents are not so re­strained, as prayed by the plaintiff/applicant, the former intend to release to the general public or publish further and more defa­mation against the latter.


  1. That copies of the said book, “SEARCHLIGHT ON ROSIC­RUCIAN ORDER, AMORC (BEDFELLOW WITH SATANIC SECRET CULT?)” and other publications of the de­fendants/appellants/respondents are now ready to be released and published to millions of readership, nationwide and worldwide, by the defendants/appellants/ respondents, unless they are restrained from doing so by this Honourable Court.


  1. That with the said judgment of this Honourable Court of Appeal in their favour the defendants/appellants/respondent are now more determined to further damage the image and reputation of the plaintiff/applicant.”


The respondents by the litigation clerk in the office of their counsel de­posed to a counter-affidavit paragraphs 3, 4, 5, 6, 7, 8, and 9, of the counter­-affidavit of the said clerk – Mr. Olusola G.H. Ogunmekan read as follows: 3. That I am informed by Wole Olufon Esq., of Counsel, of the firm of Wole Olufon & Co., Respondents’ Solicitors and verily be­lieve him that the respondents by virtue of their calling as Chris­tian Writers, Journalists, Publishers and Printers respectively, wholly earn their livelihood by continuously teaching, writing, publishing Christian articles and books.


  1. That I am informed by Wole Olufon Esq., of counsel and verily believe him that the respondents will be greatly prejudiced and unduly hindered in earning their livelihood if the applicant’s prayer for stay of execution is granted.


  1. That I am informed by Counsel to the respondents and verily be­lieve that the respondents will be greatly prejudiced and hin­dered in their legitimate defence of the Christian faith and their constitutional right to impart information if the applicant’s prayer for Stay of Execution is granted.


  1. That I am informed by Counsel to the respondents and verily be­lieve that the respondents have been prevented since 1984 from publishing many articles and books by an Order of Injunction of the trial thus preventing them from legitimately earning their livelihood and that to grant the Order for Stay of Execution is to further compound the respondents’ predicament.


  1. That I am informed by Counsel to the respondents and verily be­lieve that the giant of the applicant’s prayer for stay of execution will unfairly deny the respondents the fruits of their judgment in the Court of Appeal, moreso when there is every likelihood that the applicant’s appeal to the Supreme Court may take years to prosecute.


  1. That I am informed by Counsel to the respondents and verily that the applicant’s prayer for Stay of Execution is beyond the relief claimed by the applicant in the substantive action at the court of first instance.


  1. That I am informed by Counsel and verily believe him that the applicant’s organization will suffer no damage whatsoever if and when the respondents publish the book “SEARCHLIGHT ON ROSICRUCIAN ORDER, AMORC (BEDFELLOW WITH SATANIC SECRET CULT)” as it contains only the truth about the applicant.”


It is easy to see from the contents of the counter-affidavit that the re­spondents wish to take a full advantage of the judgment in their favour by publishing the material which the applicant considers to be defamatory of it.


The relevant history leading to this application may be briefly stated thus:


The applicants as plaintiffs at the Calabar High Court claimed from the respondents (as defendants) a sum of N8,000,000.00 as special damages and N2,000,000.00 as general damages for alleged defamatory articles pub­lished of and concerning them in the March/April, May/June and July/Au­gust, all of 1984 Issues of a Magazine called “Todays Challenge.” The case was heard by Kooffrey, C.J. who on 23-5-88 delivered a judgment wherein he awarded to the applicants a sum of N1,000,000.00 as general damages for libel and further sums of N405.00 and N500.00 as out-of-pocket expenses and cost respectively.


In particular, the learned Chief Judge granted an injunction restraining the respondents in these words:


“The defendants and each one of them are restrained by a per­petual injunction by themselves or by their servants or agents from further writing, printing or circulating or causing to be writ­ten, printed or circulated or otherwise publishing of the plaintiff the said or any similar libel.”


The respondents appealed to this court against the judgment of Koof­frey, C.J. and this court coram Kutigi, Katsina-Alu and Uwaifo, JJ.C.A. In a majority judgment (with Kutigi, J.C.A. dissenting) allowed the respon­dent’s appeal. The monetary awards made by Kooffrey, C.J. were set aside. The order of perpetual injunction was set aside and the plaintiffs/appellants’ suit was dismissed.


The plaintiffs/applicants were aggrieved by the majority judgment of this court and have obtained our leave to lodge an appeal against it to the Supreme Court. But in the interim, they want us to restrain the respondents from publishing concerning them a book titled “SEARCHLIGHT ON ROSICRUCIAN ORDER, AMORC (BEDFELLOW WITH SATANIC CULT)”


In the consideration of this application, I bear in mind the observation of the Supreme Court per Coker, J. S. C. in Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C.77 at pp.81-82 that:


“…When an order or judgment of the lower court is not man­ifestly illegal or wrong, it is right for a Court of Appeal to pre­sume that the order of judgment appealed against is correctly or rightly made until the contrary is proved or established and for this reason the Court of Appeal and indeed any court will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances (see in this connection the observations of Bowen, L.J. in the Annot Lyle (1886) 11 P.D.114 at 116.


What are the circumstances that may be regarded as special or excep­tional as to justify a stay of execution pending an appeal? The Supreme Court re-stated these in Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257 at 269 thus:


“But where there is an appeal pending, the special circumstances which have received this court’s judicial approval are when exe­cuted would:


(1)     destroy the subject-matter of the proceedings,


(2)     foist upon the court, especially the Court of Appeal a situa­tion of complete helplessness or,


(3)     render nugatory any order or orders of the Court of Ap­peal,


(4)     paralyze, in one way or the other the exercise by the litigant of his constitutional right of appeal; or


(5)     generally provide a situation in which whatever happens to the case and in particular, even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.”


It would seem that where the case on appeal involves substantial points of law in an area in which the law is to some extent recondite and where either party may have a decision in his favour, this also may qualify as special circumstances on the authority of Balogun v. Balogun (1969) 1 All N.L.R.349. Following the decision in Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129, it is now necessary for a court to examine the fairness and equity of granting a stay of execution to both parties even where the case on appeal involves substantial issues of law.


In the light of the principles of law involved in the grant of a stay of execution highlighted above, am I able to say that there are special cir­cumstances justifying a stay in the instant case? In answering this question I must consider the possible result which the applicant may obtain in its appeal to the Supreme Court and then see if there are circumstances which may re­nder such result nugatory or hollow if the respondents are not restrained in the interim.


The applicant at the highest may win in its appeal to the Supreme Court. In that event, it may be re-awarded judgment on the same terms as was done by the High Court. But in the interim, the appellant will have suffered the in­convenience of watching the respondents publish material which applicant considers defamatory of it. It is to prevent this inconvenience that the applicant seeks an injunction from us. But it is not to be doubted that the applicant will have in its favour a new cause of action to recover damages for any de­famatory material that may have been published concerning it by the applic­ant between now and the determination of the appeal by the Supreme Court. If the applicant can have this relief at some later stage, why is it asking us now to restrain the respondents? On the other side of the coin, if the re­spondents are restrained now and they succeed on appeal, how are they to be compensated for the denial to them in the interim of their constitutional right to publish information to the public?


A litigant who has fought a case and lost must expect a measure of in­convenience to attend upon his loss. This, in fact, is the mark that distin­guished the loser from the winner. It does not seem to me right, that I should in this case clamp an injunction upon the respondents who have fought and won the case before us. If there is a likelihood that the subject-matter of the appeal will disappear between now and the judgment of the Supreme Court with the result that applicant will not be able to get compensation even if they win, I would be willing to grant the injunction sought. Indeed, I have a duty to do so in such a situation. See Kigo Nig. Ltd. v. Holman Bros. (Nig) Ltd. & Anor. (1980) 5-7 S.C.60 and Sodeinde & Ors. v. Ahmadiya Move­ment-in-Islam (1980) 1-2 S.C. 163.


Indeed, in Okafor v. Attorney-General of Anambra State & Ors. (1988) 2 NWLR (Pt.79) 736, this Honourable Court intervened by stopping a litig­ant who had won the suit at the High Court from having a full value of his judgment when it was clear that the subject-matter of the suit would be de­stroyed by allowing him to do so and thus render the result on the appeal to the Court of Appeal nugatory.


I have read closely the grounds of appeal filed by the applicant. They raise substantial issues of law. But the equity and fairness in this case are such that I must not-withstanding these grounds still refuse to grant a stay of execution. In doing so, I bear in mind the observations of Eso, J.S.C. in Okafor v. Nnaife (supra) at page 138 thus:


“A stay of execution is never to be used as a substitute for obtain­ing the judgment which the trial court has denied a party. A party who has succeeded in a litigation is fully entitled to the fruits of the litigation and to these he would be entitled until the judgment in his favour has been set aside. When stay is granted therefore, the main principles must be fairness and equity. And that is, if the successful party is not restrained temporarily from taking full value of the judgment there would be serious detriment not only to the applicant but to the ultimate result which he would get were he to succeed later in the appeal he had lodged against the decision of the lower court. It may be that the property would have been destroyed thus rendering the success of the appeal hollow and nugatory or that the applicant would suffer untold hardship which could be justly avoided without damage to the successful party in the interim.”


There is in this case not a chance that the applicant can be protected from suffering the inconvenience attendant upon the respondents publish­ing the material in question without doing an even weightier damage to the respondents.


That aside, there is an even more fundamental reason why the injunc­tion sought by the applicant cannot be granted. In tracing the history of the events leading to this application, I observed that the applicant had founded their claim for damages in defamation on some articles published by the re­spondents in March/April, May/June and July/August, 1984 Issues of a Magazine called “Today’s Challenge.” The trial court read the alleged publi­cations or copies of them before deciding that they were defamatory of the applicant; and before restraining the respondents by a perpetual injunction from further publishing the same. If the judgment of the High Court stood unreversed, it would be easy to commit the respondents for contempt if they breached the order of injunction because the defamatory nature of the pub­lication had been established to the satisfaction of the High Court. In the in­stant application, I am asked to restrain the respondents from publishing a book which I have never seen nor read. I do not know if indeed it contains material defamatory of the applicant. I would be right to restrain the respon­dents only from publishing a defamatory book; conversely I would be wrong in restraining the respondents from publishing a book not defamatory. There is an inherent error of principle in asking the court to restrain a pub­lisher from publishing an article that has not yet been pronounced to be de­famatory of another. If I grant the order and the same is flouted, I would be disabled from punishing for contempt without first ascertaining if the book published is defamatory. That will be a situation of putting the cart before the horse – a mockery of procedure as I know it. The principle involved is `the court does nothing in vain “or” the court does not make an order that it can­not enforce’.


The situation is best typified by the case of Liverpool Household Stores Association v. Smith (1888) 37Ch.D 170 at182-183 where Cotton, L.J. said:


“In my opinion, it would be very dangerous to grant an inter­locutory injunction with reference to future publication unless we could lay down definitely some lines which would include only the publication of what would be libelous. In my opinion it would be very unadvisable to grant any injunction which would restrain fair discussion in the newspapers of matters of im­portance like the probable success or failure of a public company. Of course if anything libelous is published in the newspaper there will be a right of action against the proprietors and they will be answerable; but I feel that there would be the greatest danger in granting an interlocutory injunction such as is now asked for …………………. In no case do I find an injunction granted such as is asked for here, an injunction as regards future publication of statements coming under such an indefinite description. Suppos­ing we were to grant an injunction-against ‘libelous’ letters then it would have to be decided on a motion to commit whether what was published was libelous or not; and that would be a most in­convenient course to be adopted.”


And lastly but equally as important for consideration is the deposition in the counter-affidavit of the respondents in paragraph 9 which for em­phasis I. reproduce hereunder:


“9.     That I am informed by counsel and verily believe him that the applicant’s organization will suffer no damage whatsoever if and when the respondents publish the book “SEARCHLIGHT ON ROSICRUCIAN ORDER, AMORC (BEDFELLOW WITH SATANIC SECRET CULT)” as it contains only the truth about the applicant.

It has never been the practice of the court to stop a writer or publisher from publishing the truth. If what the respondents say is the truth turns out to be a falsehood defamatory of the respondents, they will only have them­selves to blame. Lord Denning, M.R. made this point in Fraser v. Evans (1969) 1 Q.B.349 at 360-361 thus:


“…In so far as the article will be damnatory of Mr. Fraser, it is clear he cannot get an injunction. The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he want to justify it or to make a fair comment on a matter of public interest. That has been established for many years ever since Bonnard v. Perryman (1891) 2 Ch.269 C.A. The reason sometimes given is that the defences of justification and fair comment are for the jury which is the constitutional tribunal and not for a Judge. But a better reason is the importance in the public interest that the truth should (be) out. As the court said in that case:


“The right of free speech is one which it is for the public in­terest that individuals should possess, and indeed that they should exercise without impediment, so long as no wrong­ful act is done.”


“There is no wrong done if it is true or if it is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication.”


The conclusion I have come to is to refuse this application for three reasons:


(1)     It is not in anyway directed at protecting the subject-matter of the dispute between the parties pending appeal and it will most un­fairly do a great damage to the respondents who by the judgment of this court are the winners.


(2)     It will put us into the indefensible position of deciding in advance that a material yet to be published and which we have not ourse­lves read is defamatory of the applicant.


(3)     It will deny to the respondents their constitutional right to freely inform the public at large.


The application fails and is dismissed with N150.00 cost in favour of the respondents.


KUTIGI, J.C.A.: I read in draft the ruling of my learned brother, Ogun­tade, J.C.A. just delivered. I agree with his conclusions. The application is really impressive but we cannot grant stay of execution of a judgment which we did not pronounce or pronounced by the lower court. The application is dismissed with costs as assessed.


UWAIFO, J.C.A.: I agree fully with it. I have no doubt that the request of the applicant for an injunction to restrain the respondents from publishing their book in any form is fraught with difficulties.


The said book was not brought to the attention of this Court by the applicant either by tendering it as an exhibit or revealing extracts from it in order to establish that it contains libelous matters of and concerning the applicant. Even if it had done this, there is no answer at the moment to the respondents’ deposition that the book contains only the truth about the applicant.


Justification is a complete bar to any relief sought by a party who com­plains of defamation. It is then regarded as damnum absque injuria: see Mcpherson v. Daniel (1829) 10 B & C 263 at 272. If, however, when the book is published it libels the applicant, it gives it a cause of action. If it is then sought to put a stop to further publication, an action must be filed and an in­terlocutory injunction applied for. But, even in that situation, the court will have to exercise extreme caution because “until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed”: see Bon­nard v. Perryman (1891) 2 Ch.269 at 284.


Another aspect of this particular application as it relates to this particu­lar case is that the applicant secured an injunction in the court in cir­cumstances which this court felt was unjustified and therefore discharged the injunction. The applicant want this same court to restore the injunction (in whatever form) while testing on appeal the correctness of our decision. In other words, that we should do as if our decision should have no consequ­ence (in the meantime) but that that of the lower court should. This to me is peculiarly awkward.


For the above reasons and the fuller ones given by Oguntade, J.C.A. I too dismiss the application for stay of execution or for injunction as totally lacking in merit with N150.00 cost.


Appeal dismissed.


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