CHRISTOPHER ALECHENU v. ATTORNEY GENERAL OF BENUE STATE
(2011)LCN/4680(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of July, 2011
CA/J/220/2002
RATIO
CONTEMPT OF COURT: HOW CONTEMPT IN THE FACE OF THE COURT SHOULD BE DEALT WITH
In BOYO V. A.G. MID-WEST STATE (supra) the Supreme Court per Ademola, CJN of 354 held that generally, contempt in the face of the Court cannot be dealt with efficiently except immediately by the very judicial officer in whose presence the offence was committed and where the offence should be dealt with summarily such a hearing must be conducted in accordance with the cardinal principle of fair process. It was also held that the case of criminal contempt capable of being punished summarily must be one in which the facts surrounding the alleged contempt are so notorious as to be virtually incontestable. This means that scrupulous care must be brought to bear on the facts and circumstances making sure that the case is very clear and beyond reasonable doubt. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
COMMITTAL FOR CONTEMPT OF COURT: PROCEDURE FOR PROSECUTING CONTEMPT IN THE FACE OF THE COURT
Committal for contempt in the face of the Court is by way of a brevi manu procedure. This allows the Judge to be the accuser, prosecutor, jury and Judge all rolled into one. It is a negation of some of the very well-known principles upon which our common law oriented adjudicatory mechanism are founded upon. Of great and utmost concern is the total derogation of one of the pillars of the principles of natural justice; where it is not allowed for one to be a Judge in his own case- Nemo judex in causa sua, in the brevi manu procedure. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
CONTEMPT OF COURT: PURPOSE OF THE LAW OF CONTEMPT OF COURT
The principles enshrined in the law of contempt are there to hold and ensure the effective administration of justice. They are the means by which the law vindicates the public interest in the administration of justice. It is also settled that the law of contempt does not exist for the sake of the personal aggrandizement of the judge nor is it there to protect the private rights of parties or litigants. See: Ibafon Company Ltd Vs Nigerian Ports Plc. (2008) 8 NWLR (667) 86 at 111 per Aderemi, JCA (as he then was); Atake v. A.G. Federation & Anor. (1982) 11 S.C. 153; Mobile Oil Company Ltd v. Assan (1995) 8 NWLR (4.2) 129. In Candide Johnson v. Edigin (1990) 1 NWLR (129) 659 at 668, Achike, JCA opined thus: “The aim of the law of contempt of court therefore is to protect the dignity of the court from any conduct that tends to obstruct or interfere with the administration of justice” It was the view of Ademola, JCA in Atake v. A.G. Federation (1981) 2 NCL 133 at 155 that cases of contempt should always attract such sentences that vindicate the authority of the court for the offence committed. See generally, Sasegbon’s Laws of Nigeria, 1st edition vol. 4 at page 683 Paragraph 1231. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKJWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
CHRISTOPHER ALECHENU Appellant(s)
AND
ATTORNEY GENERAL OF BENUE STATE Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is on appeal against the decision of Onum, J. sitting of the Gboko Division of the High Court of Benue State. The decision that gave rise to this appeal was made on 22/7/94 in the course of the proceedings in suit no. GHC/2/93. The appellant was counsel to the defendants in Suit No GHC/2/93. In the course of one of the proceedings, the learned trial Judge believed and saw the conduct of the appellant as being contemptuous of the court. Upon this, the learned Judge took serious exceptions to the attitude of Counsel and he took steps to punish same. This led to a summary trial after which the Appellant was found guilty. He was convicted for contempt in the face of the Court and was sentenced to 15 days imprisonment. Upon the order of the learned Judge the Appellant was sent to prison. However, some days into the sentence and upon an application made on his behalf to that effect, the Appellant was released on bail pending appeal.
The Appellant was dissatisfied with the conviction and sentence imposed on him by the learned Judge of the High Court. So while on bail he appealed to this Court in a notice of appeal containing 9 grounds of appeal. These grounds of appeal and their particulars are hereby reproduced as follows:-
1. The decision of the lower court cannot be supported having regard to the evidence.
2. The learned Trial Judge erred in law in holding the Appellant to be in contempt of his Court and sentencing Appellant to 15 days imprisonment when:-
a. The conduct held to be contemptuous did not obstruct or interfere with due administration of justice and was not capable of constituting such obstruction or interference with due administration of justice.
b. The conduct held to be contemptuous did not impugn the integrity of the Court and was incapable of impugning or detracting from the integrity of this Court.
3. The learned Trial Judge erred in Law in rejecting the defence or explanation of the Appellant when same was never challenged or contradicted and this occasioned a gave miscarriage of justice to the Appellant.
PARTICULARS
a. The Appellant had stated in explanation that he did not walk out of the Court deliberately but had only gone out to ease himself and this explanation was never challenged or refuted;
b. The conclusion reached by the learned Trial Judge that “while PW2 entered the witness box to testify, the learned Counsel, Mr. Alechenu packed his books and walked out on the Court” cannot be supported by any evidence on record.
4. The conviction and sentence of the Appellant for contempt by the lower Court violate Appellant’s fundamental rights to fair hearing safeguarded by S. 33(6) (b) & (d) and (11) of the 1979 Constitution (as amended and modified) in that Appellant:-
a. Was never given adequate time and facilities for the preparation of his defence:
b. Was never afforded on opportunity to examine any witness or challenge any evidence adverse to him and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before his conviction and sentence by the lower Court; and
c. Was compelled by the learned Trial Judge to give evidence of his trial.
5. The sentence of 15 days’ imprisonment imposed on the Appellant by the learned Trial Judge was unduly harsh and excessive having regard to all the circumstances of the case.
PARTICULARS
a. The Appellant was not given any chance by the learned Trial Judge to enter a plea in mitigation of sentence.
b. The Appellant was not given any option of a fine by the learned Trial Judge.
6. The conviction and sentence of the Appellant for contempt of Court cannot stand since the learned Trial Judge failed to put Appellant in the dock before asking him to show cause why he should not be convicted thereby compelling him to vice evidence at his trial contrary to S.33 (11) of the 1979 Constitution.
8. The learned Trial Judge erred in law in foiling to comply with the mandatory provisions of S. 197 Criminal Procedure Code before sentencing the Appellant to 15 days’ imprisonment and this led to a grave miscarriage of justice against the Appellant.
PARTICULARS:
a. S. 197 Criminal Procedure Code makes provision for calling of witnesses to character and statement in mitigation of punishment before consideration, determination and announcement of sentence as required by S. 198 Criminal Procedure Code.
b. The learned Trial Judge did not afford the Appellant the opportunity to call witnesses to character and make a plea of mitigation of punishment before handing down the sentence of 15 days’ imprisonment on him.
9. The proceedings of the lower Court are incorrect in certain material particulars (see attached supporting Affidavit.)
To argue this appeal, learned Counsel settled his brief on behalf of himself and appeared personally to prosecute the appeal. The Appellant’s brief of argument was filed on 11-11-2002. In response, the Respondent filed a brief on 2-06-03 which was later deemed properly filed and served on 3-2-05.
Out of the 9 grounds of appeal, the Appellant formulated 4 issues for the determination of this appeal. These issues are:-
Issue No.1
Whether the conduct and/or act of the appellant before the lower Court on the 22nd July, 1994 amounts to contempt of Court.
Issue No.2
Whether the learned Trial Judge was right in rejecting the Appellant’s defence and/or explanation as to why he went outside the Court-room while proceedings were going on.
Issue No. 3
Whether the trial that led to the conviction and sentence of the Appellant for contempt of court by the Lower Court was fair and just.
Issue No. 4
Whether the sentence imposed upon the Appellant is right and proper within the circumstances of this case.
Whether it is right and proper for the learned Trial Judge to have failed and/or refused to fully and correctly record the proceedings of events that transpired in Court in this case on the 22nd July, 1994.
In not too many words, the Respondent adopted the 4 issues formulated by the Appellant.
In order to put the submissions and arguments of respective learned Counsel in this appeal, and also for a proper understanding of the various events that gave rise to this appeal, I consider the proceedings of the lower Court on 22nd July, 1994, to be of great significance and assistance. I would therefore endeavor to set out such ports of those proceedings as would clearly appear to me to be helpful. On the 22/7/1994, learned Counsel Mr. Alechenu (Appellant having appeared before the Hon, Justice A.O. Onum, of the Benue State High Court, Gboko Judicial Division along with and leading his junior Mr. Ibitayo, for the Defendants for continuation of trial in suit No. GHC/2/93. At the end of the oral evidence of PW1, the learned Trial Judge invited, learned Counsel Mr. Alechenu, Appellant herein, to proceed with the cross-examination of PW1. From then on, series of events occurred. I consider it relevant and shall reproduce the record of the proceedings of the Court from that moment.
Let the record speak for the events that followed.
xxd by Mr. Alechenu:
I am aware that the late Mr. Anyamkegh had many Landed properties here in Gboko. He also had a large compound established along Yandev Road, Gboko.
The first Defendant was living at Alide when I filed this case. To say that the plot transfer documents were executed in two copies was not an afterthought.
I am aware that the plot No . 454 is situated of the GRA in Gboko-west. I entered into a written agreement with late Mr. Anyamkegh over the plot.
The agreement described the plot to which it related. I had the agreement but it is the Local Government file on the land. I cannot now recollect the date on which the agreement was executed. I signed the agreement with the late Mr. Anyamkyegh and Chief Tsunba also signed it. I did not tell the Court on 28-4-94 that there was only a receipt between Mr. Anyamkyegh and I, and not on agreement. I was issued with a C of O because I own the plot. It was not only a receipt I submitted to the Local Government. The documents we gave to them included the agreement on the land as well as duly completed transfer of ownership forms. The receipt issued to me is with the Local Government and if I see it I can identify it. I see the receipt shown to me by Counsel; it is a photocopy of the receipt.
Mr. Alechenu: I seek to tender the photocopy under sections 208 and 209 of the Evidence Act. I also refer to Sections 93 and 95 of the Act (supra). I also refer to section 97 of the Evidence Act (supra). We gave due notice to the Plaintiff to produce the original and it was duely served. We have complied with the law on admissibility of the secondary evidence.
Mr. Mbahon: No necessary foundation has been laid for the admissibility of the document. All the sections of the law cited are irrelevant. We also pleaded the document and wish to tender it. But we cannot tender the photocopy which we have because the original is in the file of the Local Government.
We are going to call the Registrar to tender the original.
Court: The sections of the law cited are not relevant to the application before me which is to tender a secondary evidence of a document forming port of the record kept by the Local Government on the land in question. The document now assumes the character of a public document and only its original or a certified copy or it can be admissible in evidence even if off other foundations for its tendering had been laid – see S. 97(2) (c) of the Evidence Act, 1990. The document is rejected and shall be marked as Exhibit G – rejected
Sgd: A.O. Onum, J.
22/7/94
Mr. Alechenu: I seek on adjournment to enable us serve the Local Government copies of notice to produce which we filed on 20/6/94. The Local Government is presently on a strike action. I am aware of the position of the law on admissibility of secondary evidence but the steps we have taken are not yet sufficient.
Mr. Mbahon: We oppose the adjournment sought. The history of the case shows that the defence
Counsel was given his last adjournment on 28/4/94.
Court: The adjournment sought is for purpose of further cross-examining the witness by using a document which is known to counsel to be in custody of the Local Government. Happily enough Counsel concedes that he knows the relevant rules on admissibility and he therefore cannot take advantage of his willful neglect of the rules to cause delays in trials before this Court. The application is refused and the cross-examination of the PW1 may proceed.
Sgd: A.O. Onum, J.
22/7/94.
Mr. Alechenu: I seek to withdraw from the suit so that the Defendants can engage another Counsel. I have conferred with the 1st Defendant and she has agreed for me to withdraw from the suit.
1st Defendant: I do not agree that our Counsel should withdraw from the case.
Court: The application to withdraw from this suit is refused; leave to withdraw is accordingly not granted.
Sgd: A.O. Onum, J.
22/7/94
Mr. Alechenu: I cannot continue the cross-examination. RXD: None.
PW2: CHIEF SIMON IYORTYANGE TSUMNA:
male, adult, xtian, s/Bible and states –
My name is Chief Simon Iyortyange Tsumna.
1st Defendant: My Counsel has pocked his books and left the Court. I seek adjournment to enable me engage the services of another lawyer.
Court: Before I make any order on adjournment I order that Mr. Alechenu be immediately arrested and brought to this Court to show cause why he should not be committed to prison for contempt of this Court.
Sgd: A.O. Onum, J.
22/7/94.
Mr. Alechenu brought to Court.
Court to Alechenu: You walked out on this Court while you were participating in a trial; at a stage you represented a party and at a stage evidence in the case was going on. This has obstructed the trial and your action is contemptuous. Can you therefore show cause why I should not summarily commit you for contempt of my Court?
Mr. Alechenu: I appeal to the Court most passionately not to view my conduct as being contemptuous. As an officer in the temple of justice I owe this Court a good degree of responsibilities among which are to accord this Court the highest degree of respect and to portray the Court in very good fight in the eyes of the general public. I urge the Court to overlook my conduct this morning. It was not that I walked out of this Court deliberately. I wanted to ease myself. We learn every day. We are bound to commit errors in our daily life.
Court: The Counsel, Mr. Alechenu, was conducting the case on behalf of his clients who are the Defendants. He made an application for adjournment which was considered frivolous and refused. He sought leave to withdraw from the case which his clients refused to concede to. The leave to withdraw was accordingly also refused. While the PW2 entered the witness box to testify the learned Counsel, Mr. Alechenu, packed his books and walked out on the Court. Now the trial cannot continue and will have to be adjourned. Upon being asked to show cause why he should not be committed for contempt he claimed that his action was not deliberate. I see no sense in his defence. Rather I find Mr. Alechenu’s conduct as outrageous to the integrity of this Court and as obstructing the course of this trial. I find you, Mr. Alechenu, liable in contempt of this court and hereby commit you to prison for 15 days. This order may be reviewed after 7 days if you sufficiently purge yourself of the contempt. The substantive suit is adjourned to 20/9/94 for continuation.
Sgd: A.O. Onum, J.
22/7/94
28/7/94.
GHC/30M/94.
CHRISTOPHER ALECHENU
V.
A – G, BENUE STATE.
Parties: Applicant absent; Mr. Nomishan for him.
Mr. Nyiwo for the Respondent.
Mr. Nomishan: This is a motion for the bail of the contemnor applicant pending his appeal to the Court of Appeal. The application is supported by two affidavits, one of 4th paragraphs and a further affidavit also of 4 paragraphs. Both affidavits were deposed to by a clerk in Mr. Orkumah’s Chambers.
We rely on all the paragraphs of the affidavit. We filed the appeal on receipt No.B670385 dated 26/7/94.
Mr. Nyiwo: We are not opposing the motion.
RULING:
After hearing Counsel in oral argument and considering the motion papers I grant bail to the applicant, Mr. Alechenu, in his own recognizance pending the determination of his appeal to the Court of Appeal.
Sgd: A. O. Onum, J.
28/7/94.
The 1st issue was said by Counsel to have been terminated out of ground 2 of the grounds of appeal. In arguing this issue learned Counsel reproduced lines 14- 20 at page 7 of the record of appeal and focused on it while explaining that the conduct of Counsel in the circumstance of this appeal did not and could not have amounted to contempt of Court of all and submitted that the learned Trial Judge was wrong in holding that the Appellant was guilty of contempt when he walked out of Court while proceedings in which he was involved were on.
Against this background, learned Counsel argued that the conduct held to be contemptuous by the learned Trial Judge did not obstruct or interfere with the due administration of justice. He added further that his conduct did not impugn the integrity of the lower Court. In support of this position, learned Counsel explained that of the time he was alleged to have walked out, PW2 had just been sworn in to give evidence.
He then contended that even in his absence the proceedings could still go on with PW2 being led in-chief by plaintiff’s Counsel. In the opinion of Mr. Alechenu, at the time the 1st Defendant applied for an adjournment on the grounds that his Counsel had left the Courtroom, the learned Trial Judge could still have refused such on application as he had done to earlier similar requests and the proceedings could still have gone on.
According to learned Counsel, it is settled that though walking out on a Court by Counsel may be discourteous to the Court, it would not amount to contempt of Court. While relying on the decision in IZUORA V. QUEEN 13 WACA 313, learned Counsel conceded that his conduct may amount to a breach of his professional duty to his clients. He thereafter quoted extensively from the decision in IZUORA V. QUEEN (supra) to the effect that it is not every act of discourtesy to the Court by Counsel that may amount to contempt and also not amounting to contempt of Court is breach of professional duty by Counsel. White also conceding the power of the lower Court to summarily punish for contempt, learned Counsel relied heavily on the cases of IZUORA V. QUEEN (supra) AGBACHOM V. THE STATE (1970) 1 ALL NLR 71 AT 80 AND BOYO V. ATT. GEN. (MID-WESTERN STATE) (1971) 1 ALL NLR 343 AT 352, to argue that it was to be used sparingly and only in very serious cases. Learned Counsel maintained that such power was never meant to be used to question mere offensive or irritating behavior by Counsel, or to suppress offensive methods of advocacy. In conclusion, learned Counsel argued and submitted that in deciding and proceeding as he did; the learned Trial Judge was using the power to summarily punish for contempt for a purpose for which it was never intended. He urged the Court to uphold his submissions and resolve this issue against the Respondent allow this appeal and quash the whole decision of the lower Court.
As a background to his arguments and submissions, learned Counsel to the Respondent set the ball rolling by referring to the record of proceedings of the lower Court at page 6 lines 1-31 and page 7 lines 1-30 of the record of appeal.
According to learned Counsel, the Appellant walked out of Court unannounced, carrying his books when proceedings in which he was involved as Counsel were still going on. He added that this conduct of the Appellant compelled the Court to have to adjourn, a course which it had earlier resisted.
Learned Counsel maintained that he had no doubt that the Appellant caused on obstruction of justice. He argued that by its definition, the conduct of the Appellant was one which was calculated to interfere with or obstruct the due process of the Court.
While referring to IZUORA V. THE QUEEN (supra) and AGBACHON V. THE STATE (supra), learned Counsel argued that the conduct of the Appellant went beyond mere discourtesy to the Court or breach of professional duty to clients or yet still, as argued by the Appellant, an offensive method of advocacy. Learned Counsel emphasized that what the Appellant did was aimed of obstructing the proceedings of the lower Court. To that extent, learned Counsel added, the cases referred to by the Appellant are inapplicable and he urged the Court to so hold. In a further effort and in relation to the case of AGBACHOM (supra), learned Counsel explained that it was not possible to identify and set out all acts that can constitute contempt in the face of the Court and so because of this difficulty, in the opinion of learned Counsel each case must be considered and decided on its facts and peculiar circumstances.
In conclusion, learned Counsel focused on page 7 lines 13-30 of the record of appeal and pointed out that from the words in these lines when the Appellant was confronted with the contempt charge he pleaded guilty thereto and begged for forgiveness. According to learned Counsel from then on, the guilt of the Appellant had become beyond all reasonable doubt. He referred to R. V. GRAY (1900) 2 QB 36 of 41 and OTEKI V. ATT. GEN. BENDEL STATE (1986) 2 NWLR (PT. 24) 648 of 651 as well as the provisions of S. 26 of the Evidence Act, and emphasized that it was not for the Appellant to now suggest and argue that the charge against him was not proved beyond reasonable doubt. He urged the Court to answer the question in issue one in the affirmative and dismiss this appeal for being devoid of any merit.
I have carefully considered the entire circumstances of this matter alongside the arguments and submissions of respective learned Counsel as well as some of the decided cases in support thereto. The arguments of the Appellant are all centered on the distinction between criminal contempt in the face of the Court, against mere acts of discourtesy to the Court: breach or abandonment of duty to clients; and irritating or offensive method of advocacy. Learned Counsel tried very hard to situate his conduct before the lower Court on that material day to be any other of the 3 but not criminal contempt in facie curie. While it is correct to say that no particular conduct or set of attitudes or conducts could be said to amount to contempt of Court in all circumstances, but it is equally correct to say that any conduct that is seen or tending to be a direct obstruction of the administration of justice, or to be so scandalous as to impede or hinder the Courts in the due performance of their well-known Constitutional and statutory adjudicatory duties may amount to contempt of Court. At the centre of it all is not about the person of the Judge but the administration of justice by due Process.
It is against this background that the conduct of the appellant before the lower Court on that day that can be gauged and assessed. In the case of IZUORA V. QUEEN (supra) the Appellant who was a legal practitioner had concluded arguments in a divorce matter and he sought for permission to be absent on the day judgment was to be delivered. The permission was granted by the Judge but it was withdrawn when Counsel on the other side also sought to be excused. For reasons that are not quite clear, the Appellant failed to appear before the Court on the day judgment was to be delivered. The learned Trial Judge convicted him and sentenced him for contempt of Court. In allowing his appeal and setting aside the conviction and sentence, the Court decided that not every act of discourtesy or breach of Counsel’s duty to clients would amount to contempt capable of being summarily punished, without much ado or brevi manu.
In AGBACHOM V. THE STATE, the learned Trial Judge punished for contempt a party to an action before him and who had deposed to a fact in an affidavit in support of an application seeking for the transfer of the matter to another Judge. That paragraph of the affidavit stated that the learned Judge had accepted a part payment of a debt which was owed to him when he was a legal practitioner by one of the parties in the instant matter. After referring to Lord Denning in R. V. METROPOLITAN POLICE COMMISSIONER (1968) 2 ALL ER 319 at 320 Lord Goddard in SHAMDASANI V. KING EMPEROR (1945) AC 264 the Supreme emphasized that a Court must be careful in the exercise of its powers to punish for contempt. The Court emphasized that the power must be used sparingly and only in serious cases.
In BOYO V. AG. MID-WEST STATE (supra) it was a letter written to the Trial Judge by Counsel to one of the parties seeking some clarifications and drawing the attention of the Judge to an existing Order of the Supreme which the Court was on course to override with its own order and directive that led to the Appellant being docked for contempt. When the matter got to the Supreme Court, the issue it primarily decided was whether the alleged contempt in the circumstance was one in the face of the Court or one out of the face of the Court. The Court held it was ex-facie curie, and the learned Trial Judge had no power to try the conduct of the Appellant. After considering its earlier decisions and others also, the Supreme Count also emphasized that it is important to be borne in mind by Judges that a Court should use its summary powers to punish for contempt sparingly and not to display undue degree of sensitiveness about this matter and to act with restraint on any such challenging occasions.
In my humble view, the facts and circumstances of these cases are materially different and are clearly distinguishable from the conduct of the Appellant herein. In IZUORA, Appellant had sought for permission which was granted and later withheld. In AGBACHOM, the deposition in the affidavit was spot on and absolutely true and in BOYO the letter to the Trial Judge contained a genuine complaint and the lower Court was truly on course to undermine and override a decision of the Supreme Court, thereby impugning its status as the apex Court.
It must be emphasized and highlighted here that the dividing line between conducts amounting to discourtesy to the Court and contempt of Court is indeed very thin and the tendency to cross-over to the more dangerous side of the divide is real and always present. Learned Counsel, Appellant, has conceded that though he may have been discourteous to the Court or that he may have failed in his duty to his clients he was not in contempt of the Court. Learned Counsel to the Respondent has met this concession head on when he emphasized that the Appellant was convicted and sentenced upon his plea of guilty and therefore the issue of proof beyond reasonable doubt was no longer a live issue in this appeal. In order to properly resolve this issue, I wish to go to the records of proceedings. In my view this is the best starting point because words in a document are allowed to speak for themselves and unless a statement will lead to ambiguity or absurdity words are to be interpreted and understood based on their ordinary grammatical con or meaning.
In BOYO V. A.G. MID-WEST STATE (supra) the Supreme Court per Ademola, CJN of 354 held that generally, contempt in the face of the Court cannot be dealt with efficiently except immediately by the very judicial officer in whose presence the offence was committed and where the offence should be dealt with summarily such a hearing must be conducted in accordance with the cardinal principle of fair process. It was also held that the case of criminal contempt capable of being punished summarily must be one in which the facts surrounding the alleged contempt are so notorious as to be virtually incontestable. This means that scrupulous care must be brought to bear on the facts and circumstances making sure that the case is very clear and beyond reasonable
doubt.
While avoiding being emotional or hasty by a judge is a great comportment of Judges, it must also be understood that not many Judges are like Lord Denning who could be “Cool under fire”. Walking on the proverbial tight rope calls for very careful balancing. The Appellant found himself in a situation that rendered him helpless. The record showed that he had his junior, Mr. Ibitayo with him. It was therefore not true as he would want us to believe that he did not rudely walked out of the Court with impunity. The 1st Defendant told the Court that he pocked his books and went out. When he was confronted by the learned Trial Judge he did not tell the Court that he left his junior behind when he went out. It was not true that the Appellant went out to ease himself, otherwise why would he not have left his junior in Court with his books if he at all meant to come bock and continue the case with PW2.
The situation the lower Court saw on the date in question cannot re-enact itself in exactly the same way as it happened. So deciding as it did, the lower Court was acting on the spur of the moment under a subjective feeling that the conduct of the Appellant was contemptuous. So, I do not see how an Appellate Court can now import objectivity and sit in judgment over what the learned Trial Judge, litigants and other Counsel saw in Court on that day. When learned Counsel Mr. Alechenu, Appellant herein, sought to withdraw his appearance for the Defendants mid-stream on the floor of the Court, he said he was doing so after he had conferred with the 1st Defendant and she had agreed with him to do so. This statement by learned Counsel was very clearly false and totally untrue because the 1st Defendant immediately told the Court that she did not agree with Counsel to that effect. This is borne by the record. It is irritating and clearly discourteous for a legal practitioner to openly make a statement that he knew or believed to be untrue thereby misleading the Court. Justice can only be done in a matter on the basis of the whole truth of that matter and not anything less. Any attempt to obstruct the Court or deny it access to the whole truth may as in this case amount to contempt of Court in my humble view.
After having a total overview of the entire circumstance, I agree with the learned Trial Judge that the Appellant went above board and crossed the threshold. I also agree that his conduct was contemptuous enough to attract the attention of the Court. Therefore the question in the first issue must be answered in the affirmative.
Committal for contempt in the face of the Court is by way of a brevi manu procedure. This allows the Judge to be the accuser, prosecutor, jury and Judge all rolled into one. It is a negation of some of the very well-known principles upon which our common law oriented adjudicatory mechanism are founded upon. Of great and utmost concern is the total derogation of one of the pillars of the principles of natural justice; where it is not allowed for one to be a Judge in his own case- Nemo judex in causa sua, in the brevi manu procedure.
For these reasons issues 2 and 3 must also be resolved against the Appellant. With respect to issue 4, I would rather see that the 15 days of imprisonment ordered by the lower Court to be a bit on the high side. The number of days of imprisonment already served by the Appellant would appear to me to be a reasonable sentence in the circumstance. Issue 4 must therefore be answered in the negative. It is resolved in fovour of the Appellant.
Appeal is allowed in part. Conviction affirmed, sentence of 15 days imprisonment reduced to the number of days already served by the Appellant.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had a preview of the judgment of my learned brother, A.A.B. Gumel, JCA just delivered. Having carefully examined the record of proceedings in this matter and the submissions of learned counsel in their respective briefs of argument, I agree with my learned brother, Gumel, JCA that the act of the appellant in carrying his books and walking out of the court while a witness was in the witness box about to testify after his application to withdraw from the suit was refused, was clearly contemptuous of the court.
The principles enshrined in the law of contempt are there to hold and ensure the effective administration of justice. They are the means by which the law vindicates the public interest in the administration of justice. It is also settled that the law of contempt does not exist for the sake of the personal aggrandizement of the judge nor is it there to protect the private rights of parties or litigants. See: Ibafon Company Ltd Vs Nigerian Ports Plc. (2008) 8 NWLR (667) 86 at 111 per Aderemi, JCA (as he then was); Atake v. A.G. Federation & Anor. (1982) 11 S.C. 153; Mobile Oil Company Ltd v. Assan (1995) 8 NWLR (4.2) 129.
In Candide Johnson v. Edigin (1990) 1 NWLR (129) 659 at 668, Achike, JCA opined thus:
“The aim of the law of contempt of court therefore is to protect the dignity of the court from any conduct that tends to obstruct or interfere with the administration of justice”
It was the view of Ademola, JCA in Atake v. A.G. Federation (1981) 2 NCL 133 at 155 that cases of contempt should always attract such sentences that vindicate the authority of the court for the offence committed. See generally, Sasegbon’s Laws of Nigeria, 1st edition vol. 4 at page 683 Paragraph 1231.
Having held that the appellant’s conduct was contemptuous of the court and having stated the rationale behind the need for the court to protect its integrity I am in agreement with my learned brother in the lead judgment that the sentence of 15 days imprisonment was rather harsh. Accordingly I allow the appeal in part. I affirm the decision of the High Court of Benue State, Gboko in Suit No: GHC/2/93 delivered on 22/07/1994 convicting the appellant for contempt of court. I however reduce the sentence of 15 days’ imprisonment to time already served.
UCHECHUKWU ONYEMENAM, J.C.A.: I entirely agree with the judgment of my learned brother A.A.B. Gumel, JCA which has just been delivered in this appeal. I also allow the appeal in part, affirm the conviction but reduce the sentence to the number of days the appellant had served before his bail.
Appearances
MR. A. A. SULE with MR. P. OKOLIKOFor Appellant
AND
MR. M. I. FIASE, Principal State Counsel, Benue State Ministry of JusticeFor Respondent
