MR. V. ONOCHA V. ATTORNEY-GENERAL DELTA STATE
(2013)LCN/6050(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2013
CA/B/153/2011
RATIO
CONTEMPT: WHAT CONSTITUTES CONTEMPT IN THE FACE OF THE COURT
The Supreme Court in the case of Joseph A. Agbachom V. The State (1970) 1 ALL NLR 69, added its voice to the power of contempt to be used sparingly. The court stated:
“It is not possible to particularize the acts which can or cannot constitute contempt in the face of the court. This summary power of punishment for contempt should be used sparingly and only in serious cases. It is a power which a court must of necessity possess but its usefulness depends on the wisdom and restraint with which it is exercised.”PER SIDI DAUDA BAGE, J.C.A
CONTEMPT: NATURE
The Supreme Court, in Ene Ene Oku V. The State (1970) 1 ALL NLR 60 emphasized on this point as follows:-
“A charge of contempt is a serious one and it is necessary, not only for the protection of the courts of justice but also for the preservation of justice and the administration of it in this country. That acts or conduct which tend to invade those concepts should be very sternly dealt with and in good time as well. But it is implicit in the protection of justice that the means by which it is protected should be fairly administered.”PER SIDI DAUDA BAGE, J.C.A
CONTEMPT: THE POWER TO COMMIT: PURPOSE OF THE POWER AND THE NATURE OF THE POWER
Again, the Supreme Court in the case of A.U. Deduwa & Ors V. The State (1975) 1 ALL NLR (Pt. 1) 1 at 16 stated as follows:
“The power to commit is not retained for personal aggrandizement of a judge or whoever mans the court; the powers are created, maintained and retained for the purpose of preserving the honour and the dignity of the court and so the Judge holds the power on behalf of the court and by tradition of his office he should eschew any type of temperamental outburst as would let him lose his own control of the situation and his own appreciation of the correct method of procedure.”PER SIDI DAUDA BAGE, J.C.A
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
MR. V. ONOCHA Appellant(s)
AND
ATTORNEY-GENERAL DELTA STATE
MTN NIGERIA COMMUNICATIONS LTD.(CLAIMANT)
AND
1) THE GOVERNOR DELTA STATE
2) ATTORNEY-GENERAL OF DELTA STATE
3) MINISTRY OF ENVIRONMENT, DELTA STATE (RESPONDENTS)
In Re: Contempt Proceedings Respondent(s)
SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): This is an appeal by one Mr. Onocha against the Ruling of Hon. Justice T.O. Uloho of the High Court of Justice Orerokpe, Delta State delivered on 13th of April, 2011 in which the Appellant Mr. V. Onocha (a Director in the Delta State Ministry of Environment) was sentenced to (21) twenty-one days imprisonment for contempt of the court.
The summary of the facts in the appeal is as follows:
The Appellant was not a party in the substantive suit at the lower court.
MTN Nigeria Communications Ltd (MTN) as claimant instituted the action in Suit No. HOR/39/2010 at the Orerokpe High Court, Delta State by an originating summons for the determination of some questions which includes:
Whether or not the rights enuring to the claimant by the provision of section 19 of the Nigeria Communications Commission Act CAP N94 Laws of the Federation of Nigeria, 2004 can be taken away by the provision of the Ecology Law of Delta State, 2006?
Whether or not the erection of telecommunication masts and base stations is prohibited by the Ecology Law of Delta State and as such requires the application of permit by the claimant. If the answer to the above question is in the affirmative, whether or not the tariff imposed by item 43 of the Delta State Ministry of Environment Revised Ecology Tariff has legal basis. SEE PAGES 1 TO 25 OF THE RECORD OF APPEAL.
The 1st and 2nd defendants were the Governor of Delta State and the Attorney-General of Delta State. The 3rd defendant was the Ministry of Environment Delta State. SEE PAGES 26 TO 48 OF THE RECORD OF APPEAL.
In the course of proceedings, the 3rd Defendant filed a motion dated 8/3/2011 praying the Honourable Judge to disqualify himself from hearing the case and transfer same to the Chief Judge of Delta State for re-assignment. The claimant filed a counter- affidavit and a written address in support to the 3rd Defendants motion for transfer of this suit. The 1st and 2nd defendants also filed a counter affidavit. SEE PAGES 71 TO 87 OF THE RECORD OF APPEAL.
On the 29/3/2011, counsel for the respective parties adopted their written addresses in respect of the 3rd defendant’s application dated 8/3/2011 and the court adjourned to the 13th day of April 2011 for ruling. On the said date, whilst going through the affidavit in support of the motion for transfer deposed to by Mr. V. Onocha, a Director of Ecology in the Ministry of Environment, the court discovered that some paragraphs of the affidavit are quite scandalous and offensive to the court. Thus learned counsel for the 3rd defendant was call upon to withdraw the offensive paragraphs and he bluntly refused insisting that he was relying on them as they are the substratum of his application.
Sequel to the above, Mr. V. Onocha was called upon to enter the witness box and explain why he should not be contempted by the court. He informed court that whatever decisions reached in the affidavit was based on the decision reached by the Ministry (3rd defendant) which the court discovered was contrary to his earlier posture in the affidavit he deposed to wherein he stated that because of his vast experience in the Public Service he has knowledge of what obtains in other Ministries.
The court eventually found the paragraphs quite offensive and because Mr. V. Onocha failed to explain to the court why he should not be contempted, he was sentenced to 21 days imprisonment for contempt and transferred this suit to High Court 3, Effurun for hearing and determination.
Dissatisfied with the sentence passed on him by the learned trial Judge, the Appellant appealed against the above said ruling to the Court of Appeal vide Notice of Appeal dated the 27th day of April, 2011.
THE PROPER RESPONDENT IN THIS APPEAL
The Notice of Appeal in this appeal was served on all the parties to the Suit in the court below. The names of the parties to the Suit below were also indicated on the face of the Notice of Appeal. Given the nature of the proceedings that led to the sentence of the Appellant, it is submitted that the Attorney-General of Delta State is the only Competent Respondent in this appeal. However, to err on the side of caution, the Record of Appeal in this matter and the Appellant’s Brief will be served all the parties to Suit No. HOR/89/2010. This appeal was entered on 14/6/2011.
ISSUES FOR DETERMINATION
Based on the Grounds of Appeal contained in the Notice of Appeal, the Appellant formulated from Grounds 4, 6, 7 and 10 of the Grounds of Appeal the following issues for determination :-
(i) Given the clear provision of Section 36 (II) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, whether or not the entire proceedings conducted by the learned trial Judge and the sentence of the Appellant is a nullity (Ground 4 of Appeal).
(ii) Given the facts and circumstances of this case, whether the Appellant was given fair hearing by the learned trial Judge (Ground 6 of Appeal).
(iii) Whether the court below was right in sentencing the Appellant to 21 days imprisonment without being charged, found guilty and convicted of an offence whose punishment is prescribed by written law (Ground 7 of the Appeal).
(iv) Given the entire circumstances of the case, whether or not the decision to sentence the Appellant to 21 days imprisonment was motivated by the desire to preserve and protect the dignity and integrity of the court (Ground 10 of the Appeal).
On the other hand, the Respondent formulated a lone issue for determination to wit:- “Whether the learned trial Judge was right in committing the Appellant to prison for contempt having regard to the approach he adopted and the materials before him”.
It is noteworthy to state here that the Respondents filed a Notice of Preliminary Objection to the hearing of the appeal, and as the Applicants, they shall by way of Preliminary Objection urge this court to strike out/dismiss this appeal for being incompetent.
NOTICE OF PRELIMINARY OBJECTION BROUGHT PURSUANT TO ORDER 10 RULE 1 COURT OF APPEAL RULES 2011 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
TAKE NOTICE, that on or before the hearing of this appeal, the Respondent/Applicant shall by way of Preliminary Objection urge this Honourable Court to strike out/dismiss this appeal for being incompetent.
GROUNDS OF OBJECTION
1) The Appellant/Respondent was not a named party in the Suit at the trial court.
2) The Appellant/Respondent as an interested or aggrieved party did not seek the leave of the lower court or that of the Court of Appeal to appeal against the Ruling of the trial court.
3) By the provisions of Section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria, the Appellant/Respondent does not have a right of appeal.
Dated the 2nd day of January, 2012.
In arguing the Preliminary Objection, the learned counsel to the Respondents, submitted that, the objection seeks for an order of this court, to strike out this appeal instituted by the Appellant for being incompetent on the sole ground that the Appellant not being a party to this Suit at the lower court failed and refused to seek leave of the lower court or of this court before instituting this appeal. The person who may appeal to the Court of Appeal is provided in Section 243 (a) of the Constitution of the Federal Republic of Nigeria 1999.
Learned counsel submitted further that, any person to an action (i.e. persons named in the Record of Proceedings at the lower court), is a ripe person who may appeal and do not need the leave of court to do so. But persons who are not parties in the proceedings but who contend that they have an interest in the matter requires leave of the lower court which decided the case or in appropriate case, leave of the Court of Appeal to institute an appeal at the Court of Appeal.
Learned counsel further submitted that the Appellant in this case was not a party to this Suit at the lower court. He only deposed to an affidavit in support of a motion for transfer of this case to the Chief Judge for reassignment to another court in his capacity as a Director in the Ministry of Environment. The lower court found his depositions in the aforesaid affidavit offensive and scandalous and invited counsel for the Ministry of Environment to withdraw same and he bluntly refused. When the Appellant was called upon by the court to give reasons why he should not be contempted, he gave reasons that were contrary to the depositions in the said affidavit and he was subsequently sentenced to 21 days imprisonment.
See pages 97 – 102 of the Records of Appeal.
Learned counsel further submitted that, it is trite that an interested or aggrieved party in a suit or action who did not take part in the proceedings in the lower court but dissatisfied with the decision or order of the trial court and wishes to appeal to the Court of Appeal must first seek the leave of the lower court which gave the decision or the leave of an Appellate Court to appeal as an interested party. In the instant case, the Appellant was not a party to this Suit at the lower court. Consequently, the Appellant ought to have first sought and obtained the leave of the trial court or the Court of Appeal to appeal against the decision of the trial court sentencing him to 21 days imprisonment. This, the Appellant failed, refused and neglected to do before instituting this appeal. See:-
Re: Eke (1993) 4 NWLR 176 at 190 Paras D – E Ratio 8; Sanusi V. Modu (1994) 5 NWLR (pt. 347) 732 at 739 Para D, Ratio 4. On Section 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria on failure to obtain leave, see:- Interocean Oil Corporation Nigeria Unlimited V. Fadeyi (2008) All FWLR (pt. 403) 1381 at 1396 Paras D – E; Okoyekwu V. Okoye (2009) 6 NWLR (pt. 1137) 350 at 375 Paras C-D.
Learned counsel further submitted that where an appeal can only be filed with the leave of court, it is that leave that confers jurisdiction on the court and therefore, it is very vital and fundamental that leave be obtained before the appeal is filed. The leave is a condition precedent. In the absence of such leave, the appeal is rendered incompetent. See:- Okon v. Ekanem (2002) 15 NWLR (pt. 789) 106 at 125 – 126 paras F – C; A.O.R. v. Nimba (1994) 1 NWLR (Pt. 320) 368 at 374 paras A – B; Otu V. A.C.B. International Bank Plc (2008) 3 NWLR (Pt. 1073) 179 at 200 paras C – D. We urge this court to strike out this appeal for being incompetent.
In reply to the Respondents’ arguments above, the Appellant in his Reply Brief filed 21/9/12 submitted that, the Appellant herein who was sentenced to 21 days imprisonment by the court below for an offence cannot in law or in fact be regarded as an interested party in the proceedings from which he was sent to prison to warrant him seek the leave of either the court below or this court before he can exercise his right of appeal.
Learned counsel further submitted that, the objection of the Respondent is purportedly anchored on Section 234 (a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. It is to be noted that there are two limbs to that provision. The first deals with appeal from Civil Proceedings, while the second is concerned with Criminal Appeal. The following points must be addressed:
(1) Is the proceedings leading to the sentencing of the Appellant for 21 days Civil or Criminal Proceedings?
(2) Is the Appellant who was sentenced to prison for 21 days an interested party to the proceedings?
Learned counsel submitted further that from the nature and incidence of the contempt proceedings, which is sui generis and extrinsic to the substantive matter, which gave rise to this appeal is separate and distinct from the Civil proceedings before the lower court. See: Ebhodaghe V. Okoye (2005) 4 WRN 1 at 15.
Learned counsel further submitted that contempt is an offence of a criminal character, whether infacie or exfacie curiae. See: – Ifekwe V. Mgbako (1990) 3 NWLR (pt. 140) 588 at 593; Bonnie V. Gold (1996) 8 NWLR (pt. 465) 230 at 238; Okeke V. A.G. Anambra State (1997) 9 NWLR (Pt. 519) 123 at 140; Ebhodaghe V. Okoye (2005) 4 WRN 1 at 15; Dibia V. Igwe (1998) 9 NWLR (Pt. 564) 78.
Learned counsel submitted further that the appropriate limb of Section 243 (a) of the Constitution that applies to this appeal is the second limb which deals with criminal matters. The Appellant herein was the accused in the court below. The Judgment herein appealed against is a final decision of the court below in a criminal matter. Section 243 (a) of the Constitution does not place the burden or necessity on an accused person to seek the leave of court before he can appeal against any sentence imposed on him by the trial court.
Learned counsel further submitted that the Respondent cited and relied on the authority of Dibia V. Igwe (Supra) wherein the court held that compelling an accused or alleged to enter the witness box to give evidence clearly offends the provisions of Section 33 (11) of the 1979 Constitution, which provides that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. Paragraph 4.5 at page 10 of the Respondent’s Brief. Respondents’ reliance on this authority is an admission that contempt proceedings (as in the case at hand) is criminal in nature. The Preliminary Objection is baseless and a waste of the time of this court. This court is urged to dismiss same.
The preliminary Objection is carefully examined. The Objection is anchored on the fact that, the Appeal filed by the Appellant, lacks any leg to stand upon. Appeal according to the objection in law, is a continuation of the prosecution of the original cause or matter, which is the subject of the Appeal. The position is that a party should not be seen to put forward in the Court of Appeal a case different from what was canvassed at the trial court. The main thrust of this objection rests on the fact that the Appellant who was not a party to this suit at the lower court failed and neglected to seek and obtain the leave/permission of the lower court or of this court before instituting this appeal as an interested or aggrieved party in accordance with section 243(a) of the constitution of the Federal Republic of Nigeria 1999.
Before the provisions of section 243(a) of the 1999 constitution is examined, it becomes apposite at this point to know how an appeal is brought. It is trite law, that every appeal shall be brought by notice of appeal which shall be lodged in the lower court. Order 6 Rule 2 (1) of the court of Appeal Rules 2011 provides:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties, and it shall also have endorsed on it an address for service.”
From the Notice of Appeal dated the 27th of April, 2011, contained on page 106 of the record of appeal provides as follows:
“IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN IN BENIN
EHC/110/2011
SUIT No: HOR/89/2010
BETWEEN:
MTN NIGERIA COMMUNICATIONS LTD – RESPONDENT
AND
(1) THE GOVERNOR OF DELTA STATE
(2) ATTORNEY-GENERAL OF DELTA STATE
(3) MINISTRY OF ENVIRONMENT, DELTA STATE
In Re: Contempt Proceedings
MR. V. ONOCHA – APPELLANT
AND
THE ATTORNEY-GENERAL OF DELTA STATE – RESPONDENT
NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision of the Delta State High Court Orerokpe Judicial Division contained in the Ruling of Honourable Justice T.O. Uloho (Mrs.) dated 13th day of April, 2011 do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 hereunder and will at the hearing of the Appeal seek the grounds set out in paragraph 4 and the Appellant further states that the names and addresses of the person directly affected by the appeal are those set out in paragraph 5.”
From the face of the Notice of Appeal it is clearly seen that the Appellant is Mr. V. Onocha. The sole Respondent is the Attorney-General of Delta State. The argument put forward by the objection is that the Appellant who was sentenced to prison for 21 days for offence of contempt of court is an interested party in the contempt proceedings and thus must obtain the leave of court before appealing against the sentence and imprisonment. The objection of the Respondent is anchored on Section 234 (a) of the Constitution of Federal Republic of Nigeria 1999 as amended. The Section provides:
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or High Court conferred by this constitution shall be
(a) exercisable in the case of civil proceedings at the instance of a party thereto or with leave of Federal High Court or High Court or the Court of Appeal at the instance of any other person having interest in the matter and in the case of criminal proceedings at the instance of an accused person.”
From the constitutional provisions above, will the Appellant, as the contemnor require the leave of court before he can file an appeal on a contempt proceedings? To appreciate this position, we have to know what the contempt of court means. It is indeed, difficult to give exact definition of contempt of court, and this is because it is so manifold in its aspects (See Oswald on contempt 3rd Edition, page 5) but generally, it may be described as any conduct which tends to bring into disrespect, scorn or disrepute the authority and administration of the law or which tends to interfere with and/or their witnesses in the course of litigation. One important kind of contempt is scandalizing the court. From the above therefore, can contempt of court be regarded as part of an existing civil litigation or a separate cause of action? If from the definition, contempt of court reflects the conduct of the contemnor in the face of the court or outside of its face, then it is easy to say that contempt proceeding is not part of the main civil or criminal proceedings before the court. It is separate. Hence a separate proceedings, if the court arrives at a decision, it becomes a final one, and thus entitles the contemnor to the right of appeal. In that position therefore, will the said contemnor appeal against the decision of the court which is final as of right, or with the leave of court as an interested person? The position is very clear, the contemnor can only be an interested party to the existing civil litigation where any decision taken had affected him in one way or another, not being a party to that original suit. He cannot be said to be an interested party to a contempt proceeding, which he is directly the party involved. In such a situation therefore, appeal becomes a matter of right where he so desires to, because it is an entirely different or separate proceedings. See the famous diction of Kalgo JSC (as he then was) in Ebhodaghe v. Okoye (2005) 4 WRN 1 at 15 (also cited by both counsel) he stated as follows:
“…It is very clear therefore that the challenge to jurisdiction in the substantive case, has virtually nothing to do with the allege contempt. The contempt case is sui generis and can be taken on its own and the challenge to jurisdiction which is already before the court can be taken separately.
In his concurring judgment Katsina Alu JSC (CJN) (as he then was) at lines 18-25 up to 30 held as follows:
“The offence of contempt of court is in a class of itself. Put simply, it is sui generis; It is extrinsic to the substantive libel suit.”
See also on this position the following authorities: – Ifekwe V. Mgbako (1990) 3 NWLR (pt. 140) 588 at 593; Bonnie v. Gold (1996) 8 NWLR (Pt. 465) 230 at 238; Okeke V. A.G. Anambra State (1997) 9 NWLR (pt. 519) 123 at 140.
Having established that the contempt proceeding is a separate action from the main suit in the present appeal, the court had made a decision which is final and thus appealable. The Appellant who was the contemnor was the party directly involved in that proceedings. Appeal is as of right to him. He does not require either the leave of the lower court or of this court to exercise that right. The provisions of Section 234(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) become inapplicable to the Appeal of the present Appellant. The Notice of Preliminary Objection of the Respondent, dated the 2nd day of January, 2012, and filed on the 10th of February, 2012 is without any basis, and it is hereby struck out by this court.
Having examined the four (4) issues formulated by the Appellant for the determination of this appeal, as against the sole issue of the Respondent, I tend to be guided by the latter’s sole issue. It is all encompassing, and has captured all the Appellant’s four (4) Issues. And finally made the management of this appeal quite easy. The sole issue for the determination of this appeal as couched by the Respondent, which is now preferred by this court is as follows:
“Whether the learned trial judge was right in committing the Appellant to prison for contempt having regard to the approach he adopted and the materials before him.”
In arguing the appeal, learned counsel to the Appellant submitted that, given the record of proceedings of the lower court vis-a-vis the clear and unambiguous provision of Section 36 (II) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the entire proceedings leading to the sentencing of the Appellant and the sentence thereof is a nullity. The right to personal liberty of every Nigerian citizen is so important that parliament on its wisdom made it a fundamental right and enshrined it in the Constitution of Federal Republic of Nigeria, 1999 as amended. It follows therefore before the right to personal liberty of any Nigerian is curtailed or taken away by any authority or person. The provisions laid down in the constitution must as a matter of necessity be complied with. See: – Dibian V. Igwe (1998) 9 NWLR (Pt. 564) 78 at 85; Boyo V. State (1970) 6 NSCC 268 at 269; Dikibo V. Ibuluya (2007) All FWLR (pt. 383) 166; Fawehinmi V. State (1990) 5 NWLR (Pt. 148 42; Ezeji V. Ike (1997) 2 NWLR (pt. 486) 206; Ebhodaghe v. Okoye (2005) 4 WRN 1; Onuegbu V. Onuegbu (2001) FWLR (pt. 75) 604; Deduwa V. The State (2001) 40 WRN 139.
Learned counsel submitted further that, the question to be answered is whether the requirement of Section 36 (6) (a) was satisfied by the court, i.e. whether the court below informed the Appellant of the offence against him in a language he understood? From the lower court proceedings, the court asked the Appellant: Can you explain why you should not be contempted by the court for the offensive paragraphs as contained in your deposition made in support of application for transfer? “Why you should not be contempted” does not satisfy the requirement of informing the Appellant of the offence against him. In this respect, even a legal practitioner would have been lost as to the meaning of “why you should not be contempted.” The Appellant a civil servant working in the Delta State Ministry of Environment could not have deciphered what the court below meant by that phrase. The learned trial Judge should have explained what that meant to him. However, the proper language to be used if the learned trial Judge intended to proceed against the Appellant for contempt brevis manu after asking him to enter the dock not the witness box ought to have been” show cause why you should not be punished for contempt”. See Deduwa V. The State (Supra). The Appellant having not understood the language used by the court in informing him of his offence, it cannot be said that he was given a fair hearing. The entire proceeding was therefore vitiated and be declared a nullity.
Learned counsel submitted further that, the court below was wrong to have sentenced the Appellant to 21 days imprisonment without being charged, found guilty and convicted of an offence whose punishment is prescribed by written law. According to Blacks Law Dictionary (9th Edition) Sentence is the Judgment that a court formally pronounces after finding a criminal defendant guilty. In our criminal jurisprudence, Sentence is the last pronouncement of the court after a proper criminal trial.
Learned counsel further submitted that, it is conceded that a court of record has inherent power to punish contempt brevis manu. It is the procedure adopted by the lower court in dealing with contempt brevis manu that is different and should not be confused with contempt of court as defined in Section 133 of the Criminal Code Law Cap C21 Laws of Delta State, 2006. The incidences associated with both procedures are different and distinct. The use of the term Sentence by the court below bears out a state of confusion. The use of the word sentence shows that the learned trial Judge did not deal with the Appellant brevis manu but rather under Section 133 of the Criminal Code Laws of Delta State. See Deduwa V. State Supra at page 153.
Learned counsel further submitted that given the entire record of proceedings before this court, the decision of the lower court to sentence the Appellant to 21 days imprisonment was not motivated by the desire to preserve and protect the dignity and integrity of the court. On the purpose of the power of court to punish for contempt and the need to use the power sparingly, see:- Deduwa V. The State (Supra) at page 155.
Learned counsel submitted further that the conclusion by the learned trial Judge that the attack of the Appellant is an attack on the entire Delta State Judiciary flies in the face of the depositions in paragraphs 30 and 31 of the Claimant’s counter-affidavit to the 3rd Defendant’s motion dated 8/3/2011. The question to be asked from the above observation is whether the learned trial Judge sentenced the Appellant to 21 days imprisonment to protect the integrity of the entire Delta State Judiciary or whether the learned trial Judge was motivated by other considerations rather than in accordance with the purpose for which courts are to invoke their power to punish for contempt.
In his response to these arguments, the learned counsel to the Respondent had submitted that there are two kinds of contempt i.e.:
(1) Direct Contempt or Criminal Contempt.
(2) Constructive/Indirect Contempt or Civil Contempt.
Direct contempt are committed in the face of the court. A contempt which the Judge sees. The Judge needs no evidence or witnesses. These contempt are punished summarily. That is to say, the Judge has the power to commit instantly to prison for this kind of contempt. It is a power exercised by a fine or to commit prison or to bind over to be of good behaviour. i.e.: (a) Insulting language (b) writing to the Judge (c) Acts to interrupt the orderly course of proceedings (d) Acts which tend to bring the court to disrepute (e) Other classification of criminal contempt in Section 133 of the Criminal Code. On the other hand constructive or indirect contempt hardly occur in or near the court i.e. (a) Failure by a party to do something which the court ordered him to do (b) Failure or refusal to comply with a courts order. See: – Igbonekwu V. Eronini (2008) All FWLR (pt. 409) 521 at 536 Paras A – E. The contempt exfacie curiae otherwise known as contempt outside the court is criminal in nature and involves punishment of a person for his criminal act in relation to judicial process perpetrated outside the face of the court.
Learned counsel further submitted that in determining the nature of contempt in this case, it is necessary to state the following: The offensive paragraphs of the affidavit in support of the motion for transfer is before this court. Equally, it is also pertinent to state that the aforesaid paragraphs referred to were brought to the attention of counsel to the Appellant to the effect that the paragraphs were scandalous and offensive and he was asked to withdraw same but he bluntly refused to do so as he informed court that the said offensive paragraphs were the substratum upon which his application for transfer was based and as such will affect the application. Furthermore, when Mr. V. Onocha was called upon by the court to explain why he should not be contempted, he informed court that whatever decisions reached in the affidavit was based on the decision reached by the Ministry of Environment which was clearly contrary to his earlier posture in the affidavit he deposed to wherein he stated that because of his vast experience in the public service he has knowledge of what obtains in other ministries. The aforesaid clearly shows that the contempt for which the Appellant was sentenced was committed in the face of the court. See pages 97, 98, 99, 100, 101 and 102 of the records of appeal.
Learned counsel further submitted that contempt in the face of the court (in facie curiae) is dealt with summarily. In applying the summary procedure; certain requirements must be observed. These include asking the alleged to go into the dock, stating his offence specifically and distinctly to him and asking him to show cause from the dock why he should not be committed for contempt of court. See: – Dibia V. Igwe (1998) 9 NWLR (Pt. 564) 78 at 83 Paros E – F.
Learned counsel further submitted that the learned trial Judge adopted the right procedure in the instant case. It is obvious from the record of proceedings that the contempt in question was committed in the face of the court. In other words, it was committed in facie curiae and as such the learned trial Judge was right in exercising her summary jurisdiction by punishing the contemnor (the Appellant) on the spot. Thus, a superior court of record has the inherent jurisdiction to deal with a contempt in facie curiae and punish for the offence summarily. Where however the contempt is committed outside the court (exfacie curiae) the proper procedure of apprehension or arrest change and prosecution would apply. See: – Omoijahe V. Umoru (1999) 8 NWLR (Pt. 614) 178 at 192 – 193 Paras E – G.
Learned counsel further submitted that the requirement of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 was satisfied by the court i.e. the court below informed the Appellant of the offence against him in a language he understood, and in detail of the nature of the offence and he replied thereto having understood the language used by the court in informing him of his offence and as a result it can be said with no iota of doubt that he was given a fair hearing. There is nothing on the record to indicate that the Appellant did not understand the nature of the offence he was called upon to defend. See Section 150 (1) of the Evidence Act Cap 112 Laws of the Federation 2004.
Learned counsel further submitted that given the entire record of proceedings before this court especially the offensive paragraphs, the decision of the lower court to sentence the Appellant to 21 days imprisonment was actually motivated by the desire to preserve and protect the dignity and integrity of the court. On the purpose of the power of court to punish for contempt and to preserve the integrity and dignity of the court. See:- Hart V. Hart (1990) 1 NWLR (pt. 126) 297 Paras C – D; Fame Publication Ltd V. Encomium Ventures Ltd (2000) 8 NWLR (Pt. 667) 113 Paras E – G.
The Appellant filed a Reply Brief, dated and filed the 21st September, 2012. In reply to the submissions of the Respondent, learned counsel to the Appellant submitted that the appropriate section for the presumption that the Respondent seeks to rely on in the Evidence Act 2011 is Section 168 (1). This presumption does not apply in criminal matters especially the liberty of a person (an accused) is at stake. The record of appeal in this matter is clear, unequivocal and unambiguous. This court has a duty to scrutinize the printed record of appeal in this matter. An invitation to jettison the clear record in this matter and apply presumption of regularity will constitute an affront to the letter and spirit of Section 36 (11) of the Constitution of the Federal Republic of Nigeria as amended. The provision of this section is sacrosanct and this court is urged to ensure that it is strictly compiled with and there is no room for presumption. See:- Dibia V. Igwe (Supra); Boyo V. State (Supra); Dikibo V. Ibuluya (Supra).
The submissions of counsel on both side is carefully examined. It is trite law that committal proceedings for contempt affects the freedom and liberty of the contemnor, the law and the procedure must be strictly applied and any slightest wrongful step taken shall lead to vitiating the entire proceedings. See:-
Agbachom V. The State (1970) 1 All NLR 69 at 78; G.M. Boyo V. Attorney-General Midwest (1971) 1 All NLR 342; Alh. S.O. Oyeyinke V. Aliyie Yesufu Osague (1994) 2 NWLR (Pt. 328) 617 at 631; Franklin O. Atake V. A.G. Federal & Anor (1982) 11 SC 153 at 201; A.U. Deduwa & Ors V. The State (1975) 1 All NLR (Pt. 1) 1; Sunday Okoduwa & 5 Ors V. The State (1988) 2 NWLR (pt. 76) 333 at 335 – 339; Adeniji Adele V. Ogbe (1998) 9 NWLR (pt. 567) 650 at 670.
From the record of proceedings before the court on page 98, the method adopted by the trial court in committing the Appellant in contempt is as follows:-
Court: Learned counsel to the 3rd Defendant/Applicant having informed the court that he is relying on the said paragraphs, the deponent Mr. V. Onocha is hereby called upon to enter the witness box and explain why he should not be contempted by the court.
Mr. Onocha is now in the witness box.
Mr. Onocha: He swears by the Holy Bible and states in English Language.
Court: The offensive paragraphs are read to Mr. Onocha.
Mr. Onocha: My name is Vwick Onocha, I live at 13 Chiguzie Street Asaba.
Court: Can you explain why you should not be contempted by the court for the offensive paragraphs as contained in your deposition made in support of the application for transfer?
From the above proceeding no doubt, the learned trial Judge compulsorily compelled the Appellant to enter the witness box to give evidence in the trial. Certainly this procedure is not in conformity with the provision of Section 35 (11) of the Constitution of the Federal Republic of Nigeria. Section 36 (11) of the Constitution provides as follows:-
“No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”
We have been admonished by the Supreme Court on the effect of the provisions of Section 36 (11) of the Constitution. See Agbachom V. The State (1970) 6 NSCC 62 at 69 wherein Lewis JSC (as he then was) held as follows:-
“The matter does not rest there however as we must draw attention to the fast that the learned trial Judge seems to have completely confused over the mode of procedure that he adopted. At page 6 of the record to which we have referred it is stated the court has been put into a position it has to defend itself. I shall put the deponent into the witness box” and this on any showing was a quite wrong procedure. If the learned trial Judge wished to deal with the case of contempt in the face of the court summarily he should have put the accused not in the witness box but into the dock and asked him to show cause why he should not be convicted. He should not have compulsorily put him into the witness box as part from anything else that offended against Section 22 (9) of the Constitution of the Federation which reads: No person who is tried for a ciminal offence shall be compelled to give evidence at trial.”
I find the above decision of the Supreme Court on all fours with the present appeal. Appellant was compulsorily put into the witness box by the learned trial Judge, to give evidence, contrary to the letters and spirit of Section 36 (11) of the Constitution of the Federal Republic of Nigeria, which is in pari materia with Section 22 (9) of the prevailing Constitution then. No doubt the procedure adopted by the learned trial Judge to the instant appeal from the onset, had vitiated the entire proceedings of contempt against the Appellant.
Be that as it may, I still find it necessary to examine the nature of the contempt, which spurred the learned trial Judge into this action. A motion for the transfer of the case from the learned trial Judge to the Hon. Chief Judge of Delta State was placed before the court. The said motion was supported by an affidavit. Some paragraphs in the affidavit were considered offensive to the court. The aforesaid paragraphs referred to were brought to the attention of the counsel to the Appellant to the effect that the paragraphs were scandalous and offensive to the court, and he was asked to withdraw same, but he bluntly refused to do so. He informed the court that the said offensive paragraphs were the substratum upon which his application for transfer was based and as such will affect the application. Furthermore when the deponent to the affidavit Mr. V. Onocha was called upon by the court to explain why he should not be contempted, he informed the court that whatever decisions reached in the affidavit was based on the decision reached by Ministry of Environment. The Appellant is a public servant and a Director of Ecology, in the Ministry of Environment, Delta State.
On page 98 of the records when the court asked him to explain why he should be contempted for the offensive paragraphs as contained in his depositions made in support of application for transfer, he answered thus:-
“I deposed to the affidavit in my capacity representing the Ministry. It is not my case or that of my other Directors in the Ministry. Whatever decision that was in that affidavit was based on the decision reached by the Ministry. I therefore wish that the court invite the Commissioner for Environment and Permanent Secretary Ministry of Environment who are the agents of the Governor.”
Having this vivid explanation as a background, the trial court stated at the second paragraph on page 101 of the record of appeal as follows:-
“Having said this, I find paragraphs 14, 15, 16, 18 and 23 quite offensive. The deponent Mr. Onocha failed to explain to the court why he should not be contempted. I find the said depositions in the affidavit in support deposed on 8th day of March, 2011 contemptuous of this court. Accordingly, Mr. Vwick Onocha is hereby sentenced to 21 days imprisonment for contempt.”
In the instant appeal from the record, the motion which was supported by the affidavit with some paragraphs said to be offensive to the court, was not meant for an action of the trial court. The motion had seek in the main, a transfer of the case, from the trial Judge, to be effected by the Hon. Chief Judge of Delta State. The Applicants of the motion had argued bias on the part of the court when ordered by the court to withdraw those offensive paragraphs, they refused to obey that order of the court and further argued that those paragraphs considered as offensive by the court, constitutes the main substratum of their application to the Hon. Chief Judge. The trial court not satisfied with the refusal of its order, commenced and finally determined the contempt proceeding. No doubt, the learned trial Judge is not the Chief Judge of Delta State. The learned trial Judge cannot of his own determine the bias that was alleged. Where the issue of bias is made against a trial proceeding, it will no doubt call for some level of investigation. The trial Judge in that circumstance cannot be the investigator, the prosecutor, and the executor of such decision. No matter how offensive those paragraphs complained about are, it calls for some level of restraint on the part of the Judge. He must, and ought to, await the decision of the Hon. Chief Judge on the transfer of application. If after a decision is reached by the Hon. Chief Judge, and those paragraphs of the affidavit are found to be scandalous, or damaging to the integrity of the court or of the Judex, there is always an opportunity to take a second bite at the cherry. Action in libel or some form of action to restore the dignity or the reputation, is always available.
To intercept those paragraphs by the use of power available to the court, may only give impression of abuse, and high-handedness on the part of the court. We have been admonished, that it is not every act of discourtesy to the court that amounts to contempt. The court must always bear in mind two things:
(a) Is the disobedience willful?
(b) Was it proceeded from improper motives?
The Supreme Court in the case of Joseph A. Agbachom V. The State (1970) 1 ALL NLR 69, added its voice to the power of contempt to be used sparingly. The court stated:
“It is not possible to particularize the acts which can or cannot constitute contempt in the face of the court. This summary power of punishment for contempt should be used sparingly and only in serious cases. It is a power which a court must of necessity possess but its usefulness depends on the wisdom and restraint with which it is exercised.”
In the instant appeal considering the explanation offered by the contemnor to the court, some level of restraint should have been applied before proceeding with the contempt. The Supreme Court, in Ene Ene Oku V. The State (1970) 1 ALL NLR 60 emphasized on this point as follows:-
“A charge of contempt is a serious one and it is necessary, not only for the protection of the courts of justice but also for the preservation of justice and the administration of it in this country. That acts or conduct which tend to invade those concepts should be very sternly dealt with and in good time as well. But it is implicit in the protection of justice that the means by which it is protected should be fairly administered.”
Again, the Supreme Court in the case of A.U. Deduwa & Ors V. The State (1975) 1 ALL NLR (Pt. 1) 1 at 16 stated as follows:
“The power to commit is not retained for personal aggrandizement of a judge or whoever mans the court; the powers are created, maintained and retained for the purpose of preserving the honour and the dignity of the court and so the Judge holds the power on behalf of the court and by tradition of his office he should eschew any type of temperamental outburst as would let him lose his own control of the situation and his own appreciation of the correct method of procedure.”
Before concluding, let me emphasize the importance of following laid down procedures in any criminal proceedings which would culminate in deprivation of freedom and liberty of a person. This court stated in the case of Dikibo V. Ibuluya (2007) ALL FWLR (Pt. 383) 166 at 168 as follows:
“As committal proceedings touch on deprivation of freedom and liberty of the person, the service and procedure thereof are applied strictly and any break or departure from strict application vitiates the proceedings.”
See also Fawehinmi V. State (1990) 5 NWLR (Pt. 148) 42; Ezeji V. Ike (1997) 2 NWLR (pt. 486) 206. Earlier on in this Judgment, this court had already decided that the entire contempt proceedings, the subject of this appeal have been vitiated for non-compliance with the provisions of section 36 (11) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
In the final analysis, the sole issue in this appeal is resolved in favour of the Appellant and against the Respondents. The appeal is meritorious, and it is hereby allowed. The Ruling of Hon. Justice T.O. Uloho of the High Court of Delta State Orerokpe Judicial Division, delivered on 13th of April 2011 in which the Appellant Mr. V. Onocha (a Director in the Delta State Ministry of Environment was sentenced to twenty-one (21) days imprisonment for contempt of the court, is hereby set aside by this court.
2. The court has discharged the said Appellant of the sentence.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s reasoning and conclusions.
I agree that the appeal is meritorious and it is hereby allowed. Accordingly, I too, set aside the ruling delivered on 13/4/2011 by the lower court presided over by T.O. Uloho J, sentencing the Appellant – Mr. V. Onocha, to 21 days imprisonment for contempt of court. The Appellant is discharged and acquitted of contempt of court.
TOM SHAIBU YAKUBU, J.C.A: I have read before now the draft of the judgment, just delivered by my learned brother – SIDI D. BAGE, JCA, who dealt with the issue in the appeal to my satisfaction. The appeal succeeds. It is allowed.
Appearances
E.A. AKPOTAIREFor Appellant
AND
C.O. AGBAGWU, CSC, Attorney-General’s Office, Ministry of Justice, Delta StateFor Respondent
