Although the Judiciary never ceases to amuse Nigerians with its controversial positions on important national issues, the decision by Justice Valentine Ashi of the Abuja High Court to hold former President Olusegun Obasanjo guilty of contempt for flouting his orders restraining him from publishing his autobiography, My Watch, was a breath-taking display of arrogant impertinence and self-aggrandizing recklessness. This latest instance of judicial activism, clearly intended to embarrass the former President and hold him to public contempt and ridicule, is a joke taken too far. Justice Ashi’s action ridicules Nigeria in the comity of nations as a country with deeply dysfunctional institutions where bizarre things can happen. Suffice to say the main issue for determination which constitutes the plaintiff’s grievance against Obasanjo is nebulous, objectionable, unconvincing and lacks credibility.
In the ruling, Justice Ashi gave Obasanjo 21 days to show cause why he should not be punished for contempt for going ahead to publish the book in spite of the interim order issued against it. The judge restrained him from further publishing, printing or offering for sale the book, which content touches on the subject matter before the court. Ashi had initially granted ex-parte interim orders restraining Obasanjo from proceeding with plans to publish the book or having it published for him. In defiance of that order, however, Obasanjo made a public presentation of the book in Lagos, arguing that the book had been published before the court was misled into making the orders.
In his ruling, Justice Ashi held that it was wrong for Obasanjo to have proceeded to publish the book despite the fact that a libel suit, which subject matter formed part of the content of the book, was still pending before the court and that the orders he made on December 5 was still pending. He held that it was immaterial that the book was published before the interim orders were made, stating that Obasanjo should not have published the book because he was aware of the part-heard libel suit relating to the letter he wrote to President Jonathan alleging that a chieftain of the Peoples Democratic Party (PDP), Buruji Kashamu, was a fugitive wanted in the United States. He further ordered that the enrolled orders of the court be served on all media houses in the country and on the defendant by publication in two national dailies.
Without prejudice to the offence alleged to have been committed by the former president, Justice Ashi’s fiat to the Inspector-General of Police (IGP), the Director-General of the Department of State Services (DSS) and the Comptroller of Customs to recover the published book from all book stands, sales agents, vendors, the sea and airports and deposit them with his court’s registrar pending the determination of the substantive suit, is a clear demonstration of how far activist judges are willing to travel to seek political relevance. Justice Ashi’s ruling raises fundamental issues of law and ethics in governance, and constitutes an avoidable pressure on the already over-heated polity.
According to Justice Ashi, since Kashamu claimed he came to court on the fear that Obasanjo was to publish a book that touches on the issue already before the court, it was the duty of the defendant, in whose custody the material was, to show the court that the plaintiff’s fear was misplaced. This ridiculous assertion is contrary to the rules of natural justice as consecrated in Section 36 of the Nigerian Constitution. To begin with, the plaintiff failed to produce the book to show that it actually contained the alleged libelous materials. Any injunction based on “fear” no matter how reasonable, should not have arisen in the first place, hence the interim orders were wrongly made; the Judge acted ultra vires!
Secondly, on the preponderance of evidence based on fear and suspicion, the plaintiff cannot be said to have satisfied the conditions and/or prove the ingredients necessary to sustain a claim for libel and defamation – whether Obasanjo in the offending publication stating that Kashamu was a fugitive from justice in America, amounts to ridiculing and denigrating the plaintiff; and for which he is entitled, in the circumstances of this case, to benefit from any relief and remedies? Thirdly, Justice Ashi was wrong in law when he gave credence to the assumption that reproduction of the letter, which formed the subject of the libel case before the court, will do further damage to the reputation of the plaintiff; and that Obasanjo’s failure to supply the court the book to convince it that nothing relating to the subject of the pending libel case was contained in it suggested that he was hiding something. The arguments and the sentiments behind them are devoid of merit and so perverse as to occasion a miscarriage of justice.
Furthermore, the plaintiff in this suit is yet to discharge the burden of proof placed on him in establishing that the defendant libeled and defamed him to justify the injunction granted by the court. For Justice Ashi to therefore hold that the plaintiff was entitled to succeed on his claim for damages for libel, is clearly beyond commonsense and stands logic on its head. There is really nothing to make the ruling compelling if not for the ego of Justice Ashi and his insatiable penchant for controversy. Beyond the grandstanding, the contention of contempt of court against the former President is non sequitur. It is obvious that Obasanjo will not get a fair hearing, which is a constitutional right, guaranteed to every Nigerian. No one but a Daniel will go to a lion’s den without expecting to be devoured.
It is worth noting that libel is a civil matter, and in a civil case, the claim of the plaintiff is won and lost first on the pleadings and secondly on the evidence in support of averments in the statement of claim. Equally, the defence of the defendant is based on the facts averred in his statement of defence and evidence in support thereof. It is important to state further that a suspicion or fear can never be substituted for evidence required in proof of facts pleaded, even subject to an admission by the other party. Justice Ashi drew a wrong inference and conclusion from the established facts. It may be true that Kashamu knew of Obasanjo’s book before it was published. But the view of Justice Ashi that the book ought not to have been published without his permission and consent is far-fetched from the evidence on the issue before him. It is a conjecture which is not supported by evidence since Kashamu failed to prove publication of the libel.
It is settled law that he who avers must proof. Justice Ashi extrapolated evidence on facts not pleaded. There was no evidence on record that the plaintiff suffered any special damage after the libel action was instituted; and whether he would suffer any additional damages with the reproduction of the same information is arguable since the libel pre-existed the publication. In fact, Kashamu’s pleadings go to no issue and should be dismissed. As Lord Denning said you can’t place something on nothing and expect it to stand.
