IN THE SUPREME COURT OF NIGERIA
HOLDEN AT LAGOS
ON FRIDAY 26TH NOVEMBER, 1982
(1982) NSCC 444
GEORGE SODEINDE SOWEMIMO J.S.C.
CHUKWUNEIKE IDIGBE, J.S.C.
KAYODE ESO J.S.C.
ANTHONY NNAEMEZIE ANIAGOLU J.S.C.
MUHAMMADU LAWAL UWAIS J.S.C.
FRANKLIN O. ATAKE
THE ATTORNEY-GENERAL OF THE FEDERATION & ANOR
Appellant in person.
A. O. Shitta-Bey, Legal Adviser, Federal Ministry of Justice, for the Respondent.
CRIMINAL LAW AND PROCEDURE:- Contempt of Court – Meaning – Types – Constitutional basis – Whether it is every insult offered to a judge in the exercise of the duties of his office which is a contempt of court – Distinction between a judge excising his power of punishment for contempt of court and satisfying a judge’s desire to vindicate his personality (for which purpose recourse could be had in civil proceedings for libel or slander)
CRIMINAL LAW AND PROCEDURE:- Contempt in curiae faciae and Contempt ex faciae – Distinction between both – Test for what amounts to contempt of court in the face of the court – Whether is subjective and does not require any application by a third party or, for that matter, an affidavit as it must have in matters of contempt ex facie – Need for contemnor in all cases to know what the contempt charged consist of
CRIMINAL LAW AND PROCEDURE:- Contempt of court proceedings – Trial summarily i.e. brevi manu – Simple indictment or on Information – Whether trials for contempt of court by indictment or Information are usually before another judge whose court was not the subject of the contempt – Whether it is always open to the court, where the contempt is in curiae faciae – depending, on the-nature or gravity of such contempt to deal with the same instanter and without the process of a trial or otherwise – Relevant considerations
CRIMINAL LAW AND PROCEDURE:- Contempt of Court ex-facie – Proceedings thereto – Degree and quantum of attention which it is necessary for trial judge to bring to the notice of contemnor – Whether dependent upon the level of understanding of the contemnor – Whether a stark illiterate country-dweller-contemnor is to be treated differently from an educated and sophisticated urban dweller or an ex-judge/legal practitioner who, by training and experience, understands the pith and essence of the offence of contempt of court
CONSTITUTIONAL LAW:- Section 22(10) of the 1963 Constitution – subsection (3) (a) of section 36 and subsection (a) of section 6 of the 1979 Constitution read together with section 6 of the Criminal, Code Act, Chapter 42 of the 1958 edition of the Laws of the Federation of Nigeria – Statutory preservation of the pristine common law right of our courts to punish for contempt in curiae faciae – a specie of offence which cannot, admit of exhaustive categories thereof and consequently is unavailable in any written Code of Law in our statute books
ETHICS – JUDGE AND LEGAL PRACTITIONER:- Need to uphold the honour and integrity of the court and judicial process – Duty of court not to use inherent power to punish for contempt to suppress methods of advocacy of lawyers merely because the methods appear offensive to the judge
CHILDREN AND WOMEN LAW:- Women and Justice Administration – Contempt of court – Woman used as a poignant illustration by Lord Denning – Duty of every citizen to uphold the honour and integrity of courts of law.
PRACTICE AND PROCEDURE – JUDGES:- Need for restraint generally on the part of judges of Superior Courts in the use of their power for punishment for contempt – Whether not a derogation on a court’s inherent power to punish for contempt in curiae faciae as the circumstances permit
PRACTICE AND PROCEDURE – COURT:- Jurisdiction of the court in regard to contempt procedure – Protection of the court and not the personal aggrandisement of the judge – Need for judge to 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 – Need for Judge to remember that in proceedings instanter or trial brevi manu, the Judge before whom is the contemnor, is the prosecutor, witness and judge
WORDS AND PHRASES:- “inherent powers of a court of law” – Meaning
“And so the conduct of any court is only highlighted by its patience in face of explosive situations. True it is, it might sometimes take the patience of Job but patience, like the respect it invites, takes nought off but add more. And in explosive situations, as Salmon L.J. said in ex parte Blackburn supra ibid p.157 “silence is always an option” and in my considered view, a good option too.” Per Kayode Eso, JSC
“In the Court of Appeal in England was the case of a Miss Jones who was often in that Court. She made an application before the Court and the Court refused it. She was sitting in the front row where she was so proximate to a bookcase. It was within her reach. Miss Jones picked up one of Butterworth’s `Workmen’s Compensation Cases’ and threw it at the Judges. It passed between two of the Lord Justices. She picked up another. It went too wide. Miss Jones then said “I am running out of ammunition. The Court took little notice of Miss Jones who had hoped the court would commit her for contempt of court. “Just to draw more attention to herself.” But as the Justices took no notice, Miss Jones went towards the door, and left saying:
`I congratulate your Lordships on your coolness under fire.’” – Per Eso, JSC
“I do expect however, that the Court’s patience should not be taken as a license for dragging the court into unnecessary controversy for as Lord Denning said … and I agree
‘all we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less political controversy’” – Per Kayode Eso, JSC
“To allow people to insult, belittle or make caricature of the courts, or the judges presiding therein, is to expose the administration of justice to the grave danger of inhibiting the appreciation of our people of our courts, and the necessity of the people confidently having recourse to our courts, for the settlement of their disputes. Against the background of a largely illiterate society, any diminution of the authority and respect of the courts is an invitation to chaos and disorder.” – Per Aniagolu JSC
IDIGBE J.S.C. [DELIVERING THE LEAD JUDGMENT]
The threshold questions in this appeal are whether (a) the appellant, senator Franklin Oritsemueyiwa Atake, was on the 2nd day of April, 1982, in contempt of the court presided over by Chief Judge of the Federal High Court (Anyaegbunam C. J.)? and (b) the procedure adopted by the learned Chief Judge in committing him to prison until he purged his contempt is erroneous-in law.? In order to answer these questions, it is necessary to recount the facts which gave rise to what I shall refer to in this judgment simply as the “Atake contempt proceedings”. On the 25th February, 1982, at the close of arguments of counsel in an-application for interlocutory injunction arising in a suit filed – in the Federal High Court on 4th February, 1981 – by Senator Atake, against the President of the Federal Republic of Nigeria (hereinafter referred to simply as “the President”) and the Attorney-General of the Federation of Nigeria, in which he sought, inter alia, (1) “a declaration that section (2) of the Allocation of Revenue (Federation Account etc) Act 19-8-1 is unconstitutional, void and of no effect having regard to sections 149(2) and 149(3) of the-Constitution of the Federal Republic of Nigeria and also a perpetual “injunction restraining the first defendant (i.e. the President) from operating the provisions” of the said-section 2(2) “and any other provisions of the said Act”,-the learned Chief Judge of the Federal High Court who heard the arguments reserved Ruling thereon for the 13th day of March, 1981. As the learned Chief Judge was about to, read his Ruling on that day (i.e 13th March, 1981) Senator Atake rose from his seat and told the court that he had “a preliminary point to raise before the Ruling should be read. Although hardly an appropriate time to raise “a preliminary point” in a suit or matter in court, he was allowed to raise his point. From what followed, it turned out that the “preliminary point” was in fact an oral application for the learned chief Judge to transfer the entire proceedings (including the matter upon which the Ruling was about to be made and on which arguments had been taken without prior objection whatsoever) before him to another judge for hearing and determination on the ground that in the opinion of the applicant he (the Chief Judge) was unlikely to do justice in the proceedings. It is, I think, very desirable at this stage, to set out – as appears from the record – the dialogue` between the applicant and the `learned Chief Judge (on- 13th March, 1981):
“Atake: on 25/2/61 arguments were concluded in this matter [i.e. the application for interlocutory injunction aforesaid]. Ruling was adjourned to [13/3/81 i.e. today]. On 7/3/81 1st defendant/respondent saw it fit to confer on Your Lordship the honour of O. F. R: I sued the President in his official capacity. The award was conferred to your Lordship-in [sic] his official capacity. No party in any suit can confer honour on the adjudicating judge. I impute no actual bias or actual prejudice to your Lordship the President’s character is in issue.
Court: Please Mr. Atake kindly withdraw that remark I pray you.
Atake: I withdraw the statement.
Court: Thank you very much Senator, Atake.
Atake Continues: If there is any likelihood of bias the court is disqualified from taking this case. What would a reasonable man say if the Ruling goes against me? I tell your Lordship what he would say. What do you expect? After-all he has been conferred with the honour of O.F.R. If the Ruling is in my favour the ordinary man would say that the judge is a super-man. He is above the run of the ordinary man. My complaint is about the timing. The timing is wrong. I ask the court to transfer this case to one of the judges of this court.
Court: I would read my Ruling [i.e. on the interlocutory application] which is ready. I would write a Ruling-on Senator Atake’s application [i.e. the application for transfer which was really is, “preliminary point”] later.
NWADIALOR: [Counsel for the President] I wish to be heard on behalf of my client. I had thought the objection [i.e. Senator Atake’s “preliminary point”] should have been in writing and served on us … The objection is a … misconception of the principle of natural justice and the mechanics of (the) National Honours Act 1964. Section (14), Section 140 (1) of the Constitution 3rd Schedule 1 Section 2. The award [i.e. of O.F.R. on the learned Chief Judge] was made on 1/10/80, [i.e. 4 months prior to filing in court by Senator Atake – on 4th February, 1981 – of the action in which he challenged the validity of the Allocation of Revenue (Federation Account etc), Act 1981]. The objection is very dangerous … [Square brackets together with their contents & brackets supplied by me for explanation-& emphasis].
The learned Chief Judge, thereafter, read his Ruling in which he refused Senator Atake’s application for interlocutory injunction to restrain the President, his servants and/or agents from operating (in the interim) the Allocation of Revenue (Federation Accounts etc) Act 1981.
On the 26th of March, 1981, Senator Atake filed a motion on notice to the defendants for leave of the court [Anyaegbunam C.J. High Court] to appeal from the said ruling of 13th March, 1981 and exhibited in his affidavit in support of the motion three grounds of appeal – which really, at this stage, are in law proposed grounds of appeal – meant for consideration of the court in the exercise of its discretion before granting leave; these proposed grounds of appeal if and when filed after leave has been granted become, in law, the grounds of appeal. It is, in my view, necessary to set out in full ground (1) of the three proposed grounds of appeal; this reads:-
“(1) The entire decision is a nullity in that there was a real likelihood of bias’ on the part of the learned trial judge
The plaintiff filed an interlocutory an application for an injunction against the 1st defendant [i.e. the President]. Final address was heard on (sic) 20th [but read 25th] February 1981 and the court adjourned its decision to 13th March, 1981. In the interim namely the 7th of March, 1981 the learned trial judge received gratification/favour from the 1st defendant in the form of a National Honours Award viz: the Order of the Federal Republic [i.e. O:F.R.]” [Square brackets together with contents, underlining by me]
It is necessary to state here that Senator Atake is a lawyer of many years standing and experience; he was a magistrate for a number of years and was also on the High Court Bench in this country for many years before his retirement from the judiciary of this country prior to his election to the Senate. He therefore knew full well that his application for leave to appeal would be heard by the learned Chief Judge who also would need to consider the quality, propriety and force of his proposed grounds of appeal before giving a decision on the application. He would read the grounds of appeal (i.e. proposed in support of his application) this he would need to do in chambers or in open court. To me, it matters not that he read it only in chambers [see the observations of Lord Esher M. R. in Re Johnson (1888) 20 Q.B.D. 68 at 72]
I make this observation because later in his argument before us, Senator Atake sought to make “mountain” of the point (as he claimed) that it was Mr. Eze the solicitor of, the opposite party who drew the attention, of the court on 2/4/81 to the proposed ground (1) of appeal; and that the same was never read in open court.
The said motion came up for hearing on the 2nd of April, 1981. Before the motion was heard, the learned chief Judge read his Ruling on the oral application of Senator Atake – made on 13th March, 1981 – for transfer for hearing and determination of the substantive suit and all other proceedings connected therewith to another judge of the Federal High Court. In the Ruling in which the application was, refused, the learned Chief Judge, drew attention to the relevant, provisions of the National Honours Act 1964 No. 5 of 1964 which make it clear that it is-the National Council of State, a body composed – inter alia – of (1) all former or past Presidents and former Heads of this country, (2) all former Chief Justices of the country of Nigerian origin (3) all Governors of the 19 States of the Federation, which is empowered under the said Act to advise the President on the Award of National Honours, and that the President has, in this regard, to act on the advice of the National Council of State; and he cannot under the National Honours Act, act on his own (i.e. suo motu) in awarding on any member of the community any National Honour. It was also pointed out in the said Ruling of the 2nd day of April, 1981 (as, indeed, learned counsel for the President Mr. Nwadialor, did on 13th March, 1981) that the award of, “O. F. R.” on the learned Chief Judges Was- made on the 1st of October, 1980; and it is a matter of common knowledge that the learned Chief Judge was only one of over a hundred citizens of this country who received National Honours on the 1st of October, 1980. However, after the Ruling had been made on 2nd April, -1981 a rather unpleasant dialogue took place; and I consider it very necessary to set out in detail this dialogue as it, has considerable bearing on the second “threshold question” earlier set out by me and relating to the procedure adopted by the trial judge in committing the appellant to prison for contempt of court; I now set out the dialogue:
“Senator Atake: I wish to move my motion for leave to appeal.
Court: Mr. Eze (i.e. learned counsel for, the respondents) subject to what you may wish to say I am inclined to grant the application for leave to appeal.
Eze: The grounds of appeal bother me.
Court: Senator Atake I call on you withdraw your ground one of your proposed grounds of appeal. I consider it an insult to this court. I give you 5 minutes to withdraw it and apologize.
Atake: You upset me. I have a right to file my grounds of appeal.
Court: Having refused to withdraw the offending ground (1), of your proposed grounds of appeal after five minutes given to you, I commit you to prison until you apologize and withdraw the ground which I regard as contempt in the face of this court. In the Federal Court of Appeal you are at liberty to file any grounds. [note: not proposed grounds] you may wish to”. [Brackets and underlining supplied by me].
The appeal of the Senator from the order of the Federal High Court committing him to prison on 2nd April, 1981, was dismissed by the Federal Court of Appeal [Ademola, Nnaemeka-Agu & Karibi-Whyte JJ.C.A.]. His appeal to this court is from the said unanimous decision of the Federal Court of Appeal (hereinafter referred to simply as (“the Court of Appeal”).
Eight grounds of appeal were filed and they read:
“(1). The learned Justices of the Court of Appeal erred in law in upholding the committal, of the appellant by the learned Chief Judge … when the said committal was contrary to the rule of natural justice in that the, appellant
(a) was not told specifically, distinctly or exactly what, in his ground (1) of appeal in his application for leave to appeal to the Federal Court of Appeal the learned Chief Judge considered a contempt of his court.
(b) was not given an opportunity to defend himself or show causes why he should not be committed for contempt of court
(c) was neither told nor made aware of the nature of his offence until after his committal to prison
(2) The learned Justices of the Court of Appeal erred in law when they held that the Learned Chief Judge calling on the appellant to withdraw ground (1), of his appeal and apologize for same amount to giving the appellant an opportunity to show cause why he should not be committed for contempt of court,
(3) The learned Justices of the Court of Appeal erred in law when they held as follows and in words to the same effect;-
“In the appeal before us there is no doubt from the record of proceedings that the learned trial Chief Judge relied on his inherent jurisdiction to commit for contempt of court and Abachom Vs. The State or Dediuwa & others Vs. the State (1975) 1 All N.L.R. (sic) do not apply’.
(4) The learned Justices of the Court of Appeal erred in Law in holding that the decision of this Honourable Court, on the procedure to be adopted in contempt of court cases, as set out in Dediuwa v. The State (1970) 1 All N.L.R. 69 can be waived under the proviso to section 20(1) of the Federal Court of Appeal Act (sic) 1967 (read 1976).
(5) The learned Justices of the Court of Appeal erred in law in applying the proviso to section 20(1) of the Federal Court of Appeal Act 1976 when the complaint of the appellant is that the committal proceedings were a nullity or that there was no committal proceedings in law.
(6) The learned Court of Appeal Justices erred in law in finding the appellant in contempt on the ground that the word “gratification” means “a reward, recompense, gratuity, bribe” when
(a) the word “gratification” also means “delight, pleasure, satisfaction”
(b) the learned trial judge did not so inform the appellant.
(7) The learned Justices of the Court of Appeal erred in law in holding the Appellant in contempt-of court on the ground that he insinuates that the learned trial judge is `incapable of being impartial’ when the Chief Judge did not so inform him:
(8) The learned Justices of the Court of Appeal erred in law in confirming the committal of the appellant when ground (1) complained of is a relevant and arguable ground of appeal.”
Senator Atake caused his notice and grounds of appeal to be served on the defendants in the substantive suit who now become parties to this appeal and will hereinafter be referred to also as ”the Respondents” where necessary.
When this appeal came up for hearing, the Senator (hereinafter in this judgment also referred to simply as “the appellant”) told the court that he wished to argue all the grounds together and the sum of his argument is that: (1) the learned Chief Judge erred in law in failing to tell him the precise portion of ground (1) of his proposed grounds of appeal which amounted to contempt of court; (2) that ground (1) aforesaid does not amount to contempt; and (3) in any event, the learned Chief Judge erred in law in failing to put him in the dock and specifically charge him with the offence of contempt of court and prior to his being committed to prison, calling on him to “show cause” why he (the judge) should not commit him the appellant) to prison for contempt. A number of judicial decisions were cited by the appellant in support of his contention and I will consider the relevant decisions later in this judgment. However, I should mention here that in the course of the arguments in this appeal, the appellant told this court,
(1) that when the learned Chief Judge on 2nd April, 1981, told him that he considered ground (1) of his proposed` grounds of appeal “an insult to this court”, he understood the learned Chief Judge to mean that the said ground (1) was regarded by him as being in contempt of the court (although the learned, Chief Judge did not use the familiar legal expression “contempt of court.”)
(2) that he concedes that his legal right to file grounds of appeal in further prosecution of his suit (both as suitor and counsel) does not give him a right to file a ground of appeal couched in provocative or offensive language to the court;
Against the background of the foregoing observations, I now proceed to examine the contentions put before us by and on behalf of the parties (i.e the appellant and the respondents) in order to arrive at the answers to the “threshold questions” in this appeal. The Senator contends in his Brief of argument and, indeed, before us that where “an appellant files a ground of appeal which is relevant to an issue raised in a case, (and) which issue was decided against him”, it ought not to be held that he acted in contempt of court. He further contends that “what the Chief Judge said is an `insult’” – and here, of course, he refers to ground (1) of his proposed grounds of appeal – “cannot in law – amount to contempt of court’”.
In this connection, the appellant submits that the learned Chief Judge is, in law, under a duty to tell him exactly which portion of the said ground (1) is in contempt of his court, and unless he (the Judge) sets out to him the said portion, he cannot be presumed to know what (exactly) the Chief Judge considers a “contempt” of his court. 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 Ed. P.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 prejudice litigants and/or their witnesses in the course of litigation. One important kind of contempt “is scandalizing the court” [see also Lord Hardwicke L.C. in St. James’s Evening Post Case: Roach v. Garvan (1742) 2 Atk. 469 at 471] and so “counsel or advocate may in the interest of his client cast reflections upon the conduct; character,’ or credit, of the parties or witnesses, so long as his comments are pertinent to the matters in question, although, they would, outside, a Court of Justice, be actionable as slanderous. This (sic)’ license, however, will not justify an advocate in using language which, apart from-such criticisms, is personally insulting or generally scandalous”, [see Oswald on Contempt Committal & Attachment 3rd Edition 1910 at P.54 citing in support, Ex Parte Pater (1864) 5 B. & S. 299]. On this principle, a barrister was sentenced to a fine for saying, in the course of proceedings, that a Baron of the Exchequer Chamber was a “Judge de gratia” [see 82 E.R 4 at 1100 also cited in Oswald op.cit. P.54 note(s)]. The same latitude is also extended to litigants who appear in person (and, this expression includes lawyers appearing in person to conduct their own suits); but on the same principle it has teen said that the indulgence “should not be extended to permit them to continue an improper course of conduct after warning from the judge, nor to use unbecoming or abusive language”’ (underlining by me).
[Oswald op. cit. P.54 note (q)] The basis for this limitation, however, is the need for the preservation of the authority of the courts and those who preside over them. In the opinion of Wilmot, J (as he then was) in a judgment he never delivered but, today, commonly regarded as the locus classicus on the subject :-
“Contempt of the court involves two ideas: contempt of, their power, and contempt of their authority: The word `authority’ is frequently used to express both the right of declaring the law…and for enforcing obedience to it in which sense it is equivalent to the word power: but by the word `authority’ I do not mean the coercive power of the Judges, but the deference and respect which is paid to them, and their acts, from an opinion of their justice and, integrity. Livy uses it according to my idea of the word, in his character of Evander:- `Authoritate magis quam imperio pollebat’: it is not imperium’ it is not the coercive power of the Court; but it is, homage and obedience to the Court, from the opinion of the qualities of the Judges who compose it: it is a confidence in their wisdom and integrity, that the power they have is applied to the purpose for which it was deposited in their hands; that authority acts as the great auxiliary of their power, and for that reason the constitution gives them this compendious mode of proceeding against all who shall endeavour to impair and abate it …”
[Underlining by me: see Wilmot J. (as he then was), in The King Vs. Almon (1765) Wil. 243 at 256 – 257 also 97 E.R. 100 ]
I think it will be necessary, at this stage [in order to lend weight to the much respected opinion of Wilmot J. hereinbefore set out] to set out in chronological order a few cases in which the court has had to deal with contempt in its face (a) by barristers, and (b) by members of the public not only for their value in showing the seriousness with which the offence of contempt of court (and particularly that of contempt in the face of the court sitting in banc or at chambers) is regarded, but also the fact that the courts have always considered the question, what exactly amounts to contempt of court (and particularly, contempt in curiae faciae) subjectively (NOT) objectively), and the intention of the contemnor has nothing to do with its consideration of the matter. It matters not to the court that no offence or contempt was intended by the contemnor except that such an issue may be relevant on the degree of punishment.
(1) In 1796: William Stone was tried for high treason in compassing the King’s death and adhering to his enemies. After the jury had retired for over two hours they returned a verdict of not guilty. Following this verdict, there was immediately continued shout in the Hall and a man of the name of Thompson jumping up in the middle, of the court waving his hat and hallooing” (the trial Judge still being present in the court) he was taken immediately into custody and fined £20″ [see R v. William Stone (1796] 6 T.R. 528 at 529 also 101 E.R. 684 at 685].
(2) In 1864: Thomas Kennedy Pater, a lawyer, had in the course of his conduct of criminal proceedings to use offensive words in court concerning the foreman of the jury. The Deputy Assistant Judge, J. Payne, immediately told him that that was a very improper observation to make and insisted upon its withdrawal and upon Pater declining to do so the Deputy Assistant Judge consulted the Assistant Judge, William Henry Bodkin. At the end of the criminal trial, the Assistant Judge came into the court presided over by J, Payne and recommended him to treat the matter of Thomas Kennedy Pater as a contempt of court, and to inflict upon him a fine of £20. Before the fine was inflicted, Thomas Pater said he wished to address the Court but the Deputy Assistant Judge, J.-Payne, declined to hear him and the fine was imposed “without an opportunity having been given to him to show cause” why the fine should not be inflicted. In his affidavit, Thomas Kennedy Pater had said that he made the observations which became the subject matter of his contempt in the face of the court bona fide “and according to the best of his judgment in the discharge of the duty which he owed to his client and had no thought of offering any contempt to the court”. His application for a writ of certiorari to quash his conviction and sentence was refused by the court [Cockburn C.J; Blackburn, Mellor & Shee JJ.]. The court was of the view that a barrister may be punished for contempt of court, even for language professedly used, in the discharge of his functions as advocate. Therefore, where on a trial for felony, counsel for the prisoner whose mode of conducting the case had been remarked upon by the foreman of the jury, in his address to the jury uttered words which reflected upon the foreman and being required by the judge to withdraw them refused, and was thereupon adjudged guilty of contempt and fined, his application for a writ of certiorari to remove the proceedings for purposes of being quashed should be refused. [See Ex parte Pater (1864) 5 B. & S.299 also 122 E.R. 842]. It is interesting to note that in the course of argument of Counsel, Mr. Denman, in support of the application in this case, he had pointed out to the court that there was no precedent (at the time) for finding a barrister for contempt of court for words spoken by him in the discharge of his duty and the court had also remarked that the case “was of considerable importance as affecting the independence of the bar and the discharge of the duties of advocates” [See 5 B. & S. at 302 – 303 also 122 E. R. at 843 – 844]
(3) In 1866: a Barrister of the Supreme Court of Nova Scotia was suspended from practicing in that court for having addressed a letter to the Chief Justice reflecting on the judges and the administration of justice generally in the court. The letter had been written by the barrister in his private and individual capacity as a suitor, and having no connection whatever with his professional character or anything done by him professionally either as solicitor or barrister. In a portion of this letter the barrister in question – Thomas James Wallace – had stated “I could also recall cases where the decision was, I believe, largely influenced, if not wholly based, upon information received privately from the wife of “one of the parties by the Judge. Is this justice? I think a judge in England would be a little startled to hear that a judge in Nova Scotia listened to, much, less decided upon, information obtained in this way”. In the affidavit filed by Mr. Wallace, he stated that he had no intention “whatever of impugning the conduct of any of the Judges (`Puisne Judges’) of the Supreme-Court and no intention whatever of offending or insulting either of them or the Chief Justice, his only object being to state in temperate language the grievances of which he felt he had reason to complain [I need only point out that we also had the benefit of submissions to the like effect in the appeal in hand from Senator Atake, who, as the record of proceedings duly show, had said to the learned Chief Judge on 13/3/81: “I impute no actual bias or, actual prejudice to your Lordship”];but fearing afterwards that the course – taken under some degree of irritation – might be considered irregular or offensive, he had availed himself of an opportunity of meeting the Chief Justice to disavow any intention to offend or insult him, and offered him a full apology” [Just as Senator, Atake did because he knew exactly, just as Wallace did, the undoubted inference to be drawn from his statement on the award to the learned Chief Judge from the President]; [square brackets, contents & underlining by me]. In his judgment by which the barrister was found guilty of, contempt of court and punished by an order suspending him from practicing before the Supreme Court of Nova Scotia, the Chief Justice observed:
“This was not a contempt for nonpayment of money, or for disobeying some order of the court in the progress of a suit but a contempt leveled at the court itself, and which the Court has the authority, and right to adjudicate upon of its own motion, … upon the production of the obnoxious letter by the judge to whom it was addressed “[underlining by me]. The judgment on appeal to the Board [the Privy Council] was delivered by Lord Westbury: It upheld the finding that the offence of contempt of court had been committed but held that the punishment should have been one of committal to prison or a fine and not suspension from practicing before the Supreme Court. Lord Westbury observed inter alia: “…We do not approve of the order. At the same time we desire it to be understood that we entirely concur with the Judges of the Court below in the estimate which they have formed of the gross impropriety of the conduct of the Appellant”.
[See in re Wallace (1866) L. R. 1 P.C. 283].
(4) In 1887: a solicitor who had attended the hearing of an application before a judge at chambers in the Royal Court of Justice, immediately after such hearing and while the parties were on their way from the judge’s room to the entrance gate of the building made use of grossly abusive, expressions and threatening gestures to the solicitor on the otherside in relation to such application. Upon application by the solicitor concerned (i.e. the one to whom threatening gestures had been made) Kekewich J. held that such conduct in relation, to proceedings before a Judge at Chambers was a contempt of court punishable by attachment; and he ordered the appellant to be committed to prison. The Court of Appeal [Lord Esher M. R., Bowen & Fry L. JJ.] dismissed the appeal from the order of Kekewich J. In his Judgment Lord Esher MR. cited with approval the opinion of Wilmot J. (later C.J.) in R. vs. Almon (Supra): “The question resolves itself at last into this simple point, whether a judge making an order at his house or Chambers is not acting in his judicial capacity as a judge of this court, and both his person and character under the same protection as he was sitting by himself in court? It is conceded that an act of violence upon his person when he was making such an order would be a contempt punishable by attachment” and continuing Lord Esher M. R. said, “The Chief Justice (i.e. Wilmot C.J.) was there speaking of contemptuous conduct directed towards the person or character of a judge, so sitting in a judicial capacity, but the one principle applies, as it seems to me, to contemptuous conduct and expressions in relation to proceedings in the course of the administration of justice. If he is acting judicially in the office of a judge, he is acting as a judge of the High. Court of Justice. If anyone attempts to interfere improperly with such judicial proceeding, provided it is done with sufficient nearness, it is a contempt; a contempt not of the Judge, but of the High Court as a judge of which he is acting.” [see in Re Johnson (1888) 20 Q.B.D. 68, particularly at 72]: From the facts of this case it seems pretty clear that it is not necessary that in order that certain conducts may constitute a contempt of court they should take place in open court, or that they must take place in relation to a judge while sitting in court.
(5) In 1963: a barrister was employed to conduct proceedings in an Industrial Court for settlement of an industrial dispute between a Union and one P. relating to the refusal of P. to employ certain workmen who were members of members of the Union. The matter was heard ex parte in the unexplained absence of the Union and a date was fixed for the award. Before the date arrived the court on an application of the Union fixed a date for a hearing inter partes. On that date the Union applied, for an adjournment as their counsel (i.e. the barrister in the matter) was ill.
Meanwhile there had been a sympathetic boycott of P. by another Union and so the court made an order in these terms: “I am willing to allow another date provided the Union instructs the [Other] Union to lift the boycott immediately … If the boycott is lifted before [the date fixed for the hearing] then the case shall proceed to inquiry; if not, the ex parte trial shall stand”. When hearing was renewed, the sympathetic boycott had not been called off and the appellant (barrister) appearing as counsel for the Union read the following statement: “… In the circumstances, the Union having felt that this court by its order had indicated that an impartial hearing could not be heard before it has appealed to the Minister to intervene in the matter. The Union was therefore compelled to withdraw from the proceedings and will not consider itself bound by any order made ex parte which the Union submits would be contrary to the letter and spirit of the Industrial Dispute Act. He then withdrew from the case. On a complaint by the Industrial Court to the Supreme Court, the latter court found him guilty of contempt of court as he was in disrespect of the authority of the Industrial court in making the above statement. His appeal to the Board of the Privy Council [Lords Dilhorne L.C., Evershed, Jenkins, Guest & Sir Malcom Hilbery] was dismissed. The Board held that the appellant was rightly found guilty of contempt of court; that his statement was an act calculated to bring the Industrial Court into disrepute; that the appellant was not entitled to any special priviledge because he was acting on instructions, and in reading the statement he accepted responsibility for its contents. [See Vidayasagara v. the Queen (1963) A. C. 589]. Lord Guest delivering the opinion of the Board made very important observations which I consider particularly germane to the circumstances of this appeal and is in respect of statement made in a ground of appeal from a judgment which is intended to be examined in respect of its correctness by another (but higher) tribunal; and these observations (and I set down the particular portion in capitals) read:-
“…But whether the appellants appearance for the Union was in order or not, their Lordships consider that there was no justification at all for his statement that an impartial inquiry could not be expected before the Industrial Court”
[NOTE: – the same implication is contained in the propose ground (1) of appeal of Senator Atake; and also in his statement in court on 13/3/81]
“This was the sting in the contempt and it was deliberate and quite unnecessary in the circumstances. Counsel for the appellant argued that it could not be contempt for counsel to allege partiality of a court as this would unduly restrict counsel’s arguments on a hearing in – certiorari proceedings” (which being a review of the proceedings and order for which the order is sought is, indeed, in the nature of an appeal)
[NOTE: The effect of part of the argument in support of Senator Atake’s appeal before the Court of Appeal and also in this court is to the same effect] “BUT DIFFERENT CONSIDERATIONS APPLY WHEN AN ATTACK IS MADE IN A COURT OF` REVIEW ON THE IMPARTIALITY OF A LOWER COURT. It may be necessary in certain cases, for counsel in compliance with his duty to his client to, allege partiality of [that] court. But where the allegation of partiality is made in the circumstances under which the appellant’s statement was made their Lordships consider that no adequate justification exists”. [See: (1963) A.C. at 596] (square bracket and capitals supplied by me)
To sum up, it is my view that every insult offered to a judge in the exercise of the duties of his office is a contempt of court [See also (for a similar situation) Dediuwa & others vs. The State (1975) 1 All N.L.R. 1 particularly at p.15 lines 5 – 9, and page 16 lines 6 – 12]; and it is even a grievous contempt where, as here, the object is mainly to taint the source of justice. A judge “excising his power of punishment for contempt of court by virtue of the principles of law stated above does so not out of any desire to vindicate his personality (for which purpose recourse could be had in civil proceedings for libel or slander) but out of desire to preserve and protect the authority of the court in the “Interest of, the general public.
When, therefore, the appellant claims that there is need on the part of the court, to specify for his benefit which portions of the ground, of appeal in issue amount to contempt, I regard the claim as, indeed, idle; one only needs to look at the ground as a whole to see and appreciate quite readily the scandal which that ground of appeal imputes to the court presided over by the learned Chief Judge. And if, in, addition, one sets the entire contents of the said ground against the background of the proceedings of, and statements of the appellant therein on, 13th March, 1981, where the learned Chief Judge, just about to give his Ruling on the application for interlocutory injunction in respect of the claims in the substantive action before that court, was unnecessarily interrupted by the appellant, there can be no doubt whatsoever that the said ground of appeal stinks with contempt of that court. I have earlier on stated that the test for what amounts to contempt of court in the face of the court is subjective and it is for this reason that the court which decides to deal with the offence does not require any application by a third party or, for that matter, an affidavit (as it must have in matters of contempt NOT in curiae faciae) setting out the facts which ought to enable it to arrive at the decision whether or not an alleged contemnor de facto and de jure in contempt of court. On this issue the Senator, himself an ex judge of a superior court of this country; and who – as appears from records of reported decisions of our courts of competent jurisdiction – has been concerned with a number of cases and the development of our own laws on the subject of contempt of court, concedes to us in the course of argument in this appeal (the question having been put to-him) that the learned Chief. Judge, in deciding whether or not his conduct on the 2nd of April; 1981, amounted to contempt in curiae faciae, was entitled to take into consideration, the dialogue between him and the court on the 13th of March., 1981. The scandalous imputation and inference to be readily drawn from the; ground of appeal in question is that the learned Chief Judge, having been offered a bribe, (by the opposite party in the relevant proceedings i.e. The President) in the form of award of national honour at a period between the conclusion of address by counsel in the interlocutory proceedings and the Ruling thereon and being swayed from the path; of rectitude and justice, ruled, in abuse of the authority of his office, in favour of the President.
PROCEDURE IN COMMITTAL
The second issue raised in this appear by the, Senator relates to the procedure adopted by the learned Chief Judge in committing him to prison. On this issue, I consider it ideal to set out the principal questions raised in the brief of the appellant; these read:-
“(a) Can the Chief Judge of the Federal High Court commit me for contempt without telling me specifically and distinctly what in the said ground (1) he considered a contempt of his court?
(b) If even he told me what in ground (1) he considers a contempt of his court, can he commit me without giving me opportunity of being heard in answer to what he considers a contempt of his court; or in the time honoured legal phraseology, can he commit me [to prison] without calling on me `to show cause why I should not be committed for contempt’?. (underlining by me).
(c) Does calling on me by the Chief Judge to withdraw the said ground (1) and apologize for filing it amount in law to asking me to show cause why I should not be committed for contempt of court?
(d) XX XX XX XX
(f) If the Chief Judge, did not call on me to show cause why I should not be committed for contempt of court, can the Federal Court of Appeal confirm my committal, acting under the proviso to section 20(1) of the Federal Court of Appeal Act 1976?
(g) Where the Supreme court has given a decision or prescribes in its judgment a procedure to be adopted in a particular class of case, is it permissible for a lower court to whose attention the decision or procedure is brought, to depart from the decision or procedure while dealing with the particular class of case?”
[square brackets, contents thereof, underlining supplied by me].
It is the contention of the appellant that the answer to each of these questions must be in the negative. The learned Chief Judge, he submits, was under a duty to specify distinctly the charge against him and also tell him what exactly in ground (1) of his proposed grounds of appeal, amounts to contempt; the trial for contempt, was criminal in nature and so, he contends he (the appellant) was entitled to have a charge setting out the specific grounds of particulars of offence read out to him; and in any event he must be given the opportunity of answering the charge against him. The Senator referred the court in support of his contentions above to the cases of Re Pollard (1866) L.R. 2 P .C.106; Kiu v. Piggott (1909) A.C. 312, & Apquhamy v. Regina (1963) 1 All. E.R. 762. The appellant then submitted that the Court of Appeal ought not, in the face of the decisions of this court in Abachom v. The State (1970) 1 All N.L.R. 69 at 78-9; Dediuwa v. The State (1975) 1 All N.L.R. 1 at 13, to uphold the committal order of the learned Chief Judge based, as it on a procedure so palpably erroneous. According to him, the cases relied upon, lay down quite positively the procedure to be adopted in proceedings for committal for contempt of court; and they, specify that it is the duty of the judge in “committal proceedings” to (1) “put the contemnor in the dock and (2) after stating to him distinctly the facts relied on as amounting to his offence then to proceed to require him to show cause why he should not be punished for his contempt; unless the court convicting for contempt of court followed the procedure aforesaid; the proceedings upon which the conviction was based must in the view of the appellant, be regarded as null and void. We were then referred to Black’s Law Dictionary Special de Luxe 5th Edition – P. 1237 in support of the contention of the appellant that the expression “show cause why you should not be committed be for contempt of court” is only “a legal phraseology for calling on an alleged contemptnor to give his own explanation of that which is considered contemptuous and to correct any misapprehension as to what he had` in fact said or meant”. Even if the judge was dealing with a case of “contempt in the face of the court”, the appellant submits that this procedure must be followed and there must be a fair trial [or rather, the requirements of a fair trial must be followed]; and for this contention reliance was placed on the decision of this court in Awosanya v. Board of Customs (1975) 1 All N.L.R. 106 at 121.
My Lords, the questions posed by the appellant in his brief arise from – and I say so with respect to him utter and complete misunderstanding of the law relating to punishment for contempt in curiae faciae and the decisions of this court which he prays in aid of his contentions.
For a contempt in curiae faciae a superior court of record has inherent jurisdiction to deal with it, and punish for the offence either summarily (brevi manu OR instanter; this is because “the usual criminal process to punish contempts was found to be cumbrous and slow” [See: Oswald op. cit. pp. 8-9], I pause; to quote from Oswald on the distinction between committal and attachment and between contempt, criminal and that which is not criminal-
“The origin of committal, as distinguished from attachment, is to be found in the practice of the court of Chancery. Where attachment issued, the offender was arrested by the Sheriff, and if the contempt required adjudication, was brought before the court and examined upon interrogatories, and, upon the contempt being proved, committed to the Fleet.
In cases of assaulting or abusing a process server or speaking scandalous words of the court an order was made for immediate committal, upon ex parte motion supported by an affidavit of the facts [and this, as I will show later, must refer to occasions where scandalous words are spoken of the court NOT in the face of the court but outside the court which makes it necessary for the court to be so informed by deposition on affidavit in support of motion ex parte], and upon contempt in the face of the court [and this must include scandalous words spoken of the court in curiae faciae as in the instant case] an order for committal was made instanter, as at present …” [square brackets together with contents as well as underlining by me: see Oswald op. cit. p.22].
I need only at this stage reinforce his last sentence in the quotation from Oswald op.cit. by the passage, from Blackstone Commentaries 16th edition (1825) Book IV page 286 which states:
“If contempt be committed in the face of the Court, the offender may be instantly apprehended and imprisoned at the discretion of the judges”
(Underlining by me).
The position, therefore, is that, generally, contempts of court are either dealt with by trial summarily i.e. brevi manu or on a simple indictment or on Information; whether or not the contempt is in curiae faciae [and trials for contempt of court by indictment or Information are usually before another judge whose court was not the subject of the contempt]. It is always open to the court, where the contempt is in curiae faciae – depending, on the-nature or gravity of such contempt to deal with the same instanter and without the process of a trial; but the case for contempt in such circumstances, however, must be quite clear and without doubt, and the contemnor must be taken to know from the circumstances what the contempt consists of. On this issue I pause to recall the statement of this court in Boyo v. Attorney-General, Midwest (1971) 1 A11 N.L.R. 342 at 353 – 354:
“These observations to which we have referred, to our mind, apply both in cases of contempt in the face of the court and also not in the face of the court, although in the first case, generally, the contempt cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the offence was committed in cases of contempt not in the face of the court, there may be cases where `the offence should be dealt With summarily (i.e. brevi manu], but such hearing must be conducted in accordance with cardinal principles of fair process; …”
[square brackets and contents underlining by me].
It is true that in each of the cases, which came up before this court so far Abachom v. The State (1970) 1 All N.L.R. 69, Boyo vs. The Attorney-General for Midwestern State (1971) 1 All N.L.R. 342; Dediuwa v. The State (1975) 1 All N.L.R. 1 and Awosanya v. Board of Customs (1975) 1 All N.L.R. 106 – this court has spoken firmly of the duty of the court or a judge trying the contemnor of (1) putting him in the dock and (2) specifying distinctly i.e. charge against him and thereafter (3), calling on him to show cause why he should not be punished for his contempt; nothing, however, in the ratio decidendi of each of these cases run contrary to the age long “right and discretion of a court to deal with and punish for contempt in its face instanter i.e. without any formality of a trial. Again, it seems to me that the Senator is under a misapprehension that a summary or brevi manu procedure for dealing with contempt is the same with a procedure for inflicting instant punishment [i.e. dealing with, and punishing for, the offence instanter]; of course, they are not because the former is, in any case, a form of trial even if brevi manu or summarily [In which case due regard must be paid by the court, to the-need for a fair trial under the sections of our constitution which deal with the fundamental rights of the subject], and the latter is not a formal trial in any way [if anything, it is meant to and has always been a very rough “trial”’ if, indeed, it may be called a “trial” at all]. As far as I know from my limited research, as I do not claim that it has been extensive or exhaustive, having regard to the fact that I cannot claim to have had access to records of all decided cases, on the matter, in this court, – this is the first time this court has been called upon for its specific judicial comment on the propriety of the procedure, for punishment for contempt in curiae faciae, which does not allow for any form (or motion) of a trial. I bear in mind, of course, that events which led up to the punishment for contempt by Bassey J. (as he then was) in Abachom v. The. State (Supra) took place mainly in court so that if the facts which gave rise to the punishment amounted in law, to a contempt – and this court held, in my very respectful view, correctly, that they do not, the proceedings in Abachom would have, been in respect of contempt in curiae faciae as it was, however, they were not.
A close analysis of the reported – cases on the subject which came up before this court [(a) Abachom (Supra) (b) Boyo (Supra) (c) Dediuwa (Supra) and (d) Awosanya (Supra) shows that none of those cases dealt specifically with the procedure for punishment for contempt in curiae faciae, which does not allow for any form of trial. Awosanya (Supra), was a case of trial for contempt of court which originated on a criminal summons; indeed, the learned trial judge drafted the charge against the accused himself; Abachom (Supra), was yet another case of trial for contempt of court, and the learned trial judge again drafted the charge against the accused. Boyo (Supra), was not a case of contempt in curiae faciae; he (Boyo) had been arrested on a warrant and brought into court after his refusal to apologize on a written demand by the learned trial judge [Atake J.(as he then was]. Having been brought into court, Atake J. read out to him the charges against him which he (the judge) had himself drafted and written out in his record book; and learned counsel for Boyo objected to the propriety of the trial for contempt being conducted by Atake. J. himself. The question on appeal before this court was whether it was proper for the trial to be conducted by the learned judge. Dediuwa (Supra), was a case in which the procedure can be described as running between that for instant punishment and a trial. It appears that the learned trial judge was moved to proceed by way of instant punishment for contempt, but this procedure was faulted when he proceeded to place the accused persons in the dock and having them sworn on oath. Therefore, it is my respectful view that all pronouncements of this court on the need firstly to put contemnor in the dock and have the charge against him distinctly or specifically put to him and, secondly, thereafter call on him to show cause why he should not be punished for contempt of court, are germane to the procedure for punishment for contempt upon a trial – be it brevi manu or upon formal indictment; they do not, in any way seek, to derogate from the right of a superior court to deal with contempt in its face instantly i.e. without any form of a trial.
They however contain grave pronouncements on the need for restraint generally on the part of judges of Superior Courts in the use of their power for punishment for contempt. I will deal more anon with the undisputed pristine right of a court to deal with and punish for contempt without any, form of trial; and I will give attention to a few cases beginning with the early part of the 18th century to the present day.
Reliance was placed on the cases of Re Pollard (1868) L.R. 2 P.C. 106, as well as Kiu vs. Piggott (1909) A.C. 312 for the contention of the appellant that before a court can correctly or properly punish for contempt of court the specific offence charged must be distinctly stated by the court to the contemnor if the contempt is criminal in nature: (as opposed to civil contempt) and an opportunity of answering the charge must also be given to him. Undoubtedly, this is a very important principle of procedure in punishment for contempt of court generally and, as I endeavoured to show earlier, this court, indeed, has reiterated it in the cases I have referred to in the preceding paragraph. The principle applies where the court which desires to punish has elected or is enjoined by statute, to use the procedure of a trial before inflicting punishment. If the court does so elect, or is so enjoined, then whether the contempt be in curiae faciae or outside the court the said principle or rule of procedure must apply. The main point, however, is that the court – in cases of the contempt in curiae faciae has a discretion (where the contempt – deserves immediate punishment and there [is] also no alternative to immediate punishment for the said contempt) to jettison as it were, the procedure by formal trial, deal with and punish for the contempt instantly (without “trial”). There are strong judicial authorities [apparently not cited to the court in Re Pollard (Supra) and Kiu vs. Piggott (supra)] in support of this view as well as learned pronouncements; I will now consider a few of them.
In Ex parte Fernandez (1861) 30 L.J.C.P. 321. A witness was fined and committed to prison for six months by a court of Assize for contempt in not answering a question, and the warrant for commitment stated the contempt but did not set out the question or state that a jury had been sworn prior to the refusal of the witness to answer the question. On a motion for habeas corpus, it was held in the court of Common Pleas, that (1) it was no ground of objection to the warrant for committal that it did not state specifically that a jury had been sworn, – it appearing – from the facts: stated therein that the proceedings took place upon a trial before a jury; (2) it was no ground of objection that the specific question put to the witness – which he had refused to answer – was not set out in the warrant, nor was it a ground of objection that it did not set out the evidence upon which the judge came to the conclusion in the warrant (3) (Per Willes J.) it was not for the witness but for the judge to determine whether the question was one which the witness was bound to answer. Further, Byles J. queried whether there was any necessity at all for a warrant for the committal of the witness. In the lead judgment of the Court, Erle C.J. observed inter alia:
“… It is certain that if the court of Assize is a Superior Court the objection [as to failure to set out the question put to the witness & his ground of refusal] fails, it being well established that a Superior Court may, adjudicate that a contempt has been committed, and may commit for that contempt without stating the facts; The point was most elaborately, discussed in Burdett Vs. Abbott (1811) 14 East 69 and affirmed by the Court of Queen’s Bench; elaborately argued again in the same case in the House of Lords; and; though the question turned upon a warrant of the Speaker of the House of Commons, the House of Lords put to the judges the question whether a general warrant adjudicating for contempt, without setting out the evidence made by one of the Superior Courts of Westminster, would have been treated as void by another of the Courts of Westminster and the Judges answered unanimously that it would not, and the House of Lords unanimously affirmed, the decision. The question, whether a warrant adjudicating a contempt without setting out the evidence was valid, was again the subject of extreme discussion in the case of The Sheriff of Middlesex (184o) 11 A. & E. 273, and the rights and powers of a Court of superior jurisdiction to make a warrant for commitment in the form it thinks right for its officers, in the case of Howard v. Gosset (1842) 10 Q.B. , Reports 359 an there is the passage cited by Mr. Bovill [learned counsel in support of the application for habeas corpus in the case under, consideration i.e. Ex parte Fernandez] and relied on from the judgment of Coleridge J., that the warrant of a Superior court ought to be held void, if it does not comply with certain formalities there in question. That opinion and the judgment founded thereon was the subject of consideration in the appeal to the Exchequer Chamber, and that court held the warrant good notwithstanding, and established the doctrine that a Superior Court may make a warrant of commitment for contempt without setting out the evidence on which it adjudges that the party has been guilty of contempt… Therefore, the question is brought entirely to this point, is the Court of Assize a “Superior Court”? If it is, the motion fails. [“See (1861) 30 L.J.C.P. 321 at 328 – 329” (Underlining by me)].
Again, the view that a witness refusing to be examined commits an offence which is a contempt in the face of the court for which he may be instant apprehended and imprisoned at the discretion of the judges, without, any further proof or examination” is supported by Blackstone’s [“See 4 Blackstone’s Commentaries at 281, and 283 cited with approval by Willes J. in the same case (i.e. Ex parte Fernandez (1861) 30 L.J.C.P. at 3331)].
I pause to observe that from very early days the court regarded the use of profane language or abusive or contemptuous words in respect of its process on the same basis as contempt in the face of that court. . In Rex vs. Kendrick (1754) Sayer 115 also 96 E.R. 822 it appears that upon a motion for an attachment the defendant upon being served with the necessary process by the process server had spoken contemptuous words of the court and the Court of King’s Bench [Sir William-Lee C.J. Wright, Denison and Foster JJ.] made an immediate award of the attachment and observed that the distinction is that where profane language or contemptuous words are spoken of the court, (i.e. outside the court) an attachment is to be awarded in the first instance: but where the words are spoken of the process of the court, there is to be a “rule, to show cause”. In Rex vs. Jermy (1752) Sayer. 48 also 96 E.R. 799 it appears that upon a motion for attachment, of the defendant a rule to show cause why, pursuant to the said application for attachment, an Information should not be filed against him, having been served on him, the defendant said to the process server: -” Take the rule back again to those from whom it came, and bid them wipe their backsides with it.” The Court of King’s Bench [William Lee C.J., Wright, Denison Foster JJ], granted, immediately upon this being brought to its knowledge, a rule absolute for attachment of the defendant. The important aspect of this case is that Sir William Lee C.J. observed “There are two cases in which the court does always make a rule for attachment, without making a rule to show cause; namely, for non-payment of costs which have been fixed, and for disrespectful word of the court”.
In Rex V. Davison (1821) 4 B & A 329 also 106 E.R. 958, a defendant conducting his own defence addressed the jury in an improper manner and was thereupon after persistent warning from the trial judge, convicted in the interim for his offence of contempt in the face of the court. He had been charged with the offence of publication of a blasphemous libel; at his trial before Best J. he conducted his own defence which he read out from a paper making some derogatory remarks of persons who were not in court to defend themselves; and the learned judge warned him of the impropriety of such conduct and told him he would not allow him to do so. After this admonition, the defendant as a reason for his not employing counsel said: “No barrister will undertake and uphold an honest defence in a cause like mine”. Again, the learned judge interposed and told him that his conduct was highly improper and that he must confine himself strictly to matters relevant to his defence and that if he persisted in his cause he (the judge) would use the means he had to restrain him; whereupon he replied: “My Lord, if you have your dungeon ready, I will give you the key.” For that expression the learned judge immediately fined him £20. He continued in the use of offensive and insulting words and received immediately several fines therefore. The defendant having been convicted for the principal offence for which he was being tried, his counsel obtained a rule nisi for a new trial upon an affidavit which stated that by these fines the defendant was intimidated and confounded, and consequently omitted some material aspects of his defence and that had he been permitted to go on, uninterrupted with his defence he should have made a favourable impression on the jury and obtained a verdict of acquittal. After argument on the matter was received, the rule nisi was discharged. One of the learned justices who heard the matter observed; – “That is an offence at law committed in the face of the court. Then is the judge whose sworn duty it is to punish crime when established by proof, and brought before him judicially, to sit and hear the law defied, and suffer a crime, a repetition of, the same crime [as in the case in hand- where Senator Atake repeated, on 2nd April 1981, in ground (1) of his proposed grounds’ of appeal, the insults offered to the learned Chief Judge on 13th March, 1981] to be committed in his presence? The law arms him with an authority to fine and imprison a person for so doing, and makes it incumbent on the judge to so act in the case of an insult to himself, it is act on his own account that he commits, for that is a consideration which should never enter his mind. But, though he may despise the insult, it is a duty he owes to the station to which he belongs, not to suffer those things to pass which will make him despicable in the eyes of others: It is his duty to support the dignity of his station, and uphold the law, so that, in his presence at lease, it shall not be infringed…” [square brackets together, with contents, and underlining by me – see: R. v.- Davison (1821) 4 B & A 329 at 338-339 also 106 E.R 958 at 961]. Before I leave this point I would like to recall my earlier observation and reference to the case of R. v. William stone (1796) 6 T.R. 528 at 529 – also 101 E.R. 684 at 685 in which, following a verdict of acquittal of William Stone who was standing trial for high treason there was continued shout in the court hall and while the judge was still sitting in the court a man called Thompson jumped up continuously in the middle of the court hall waving his hat and hallooing, the learned nudge ordered that he be immediately taken into custody and inflicted the further punishment of a fine on him without any motion of a trial.
I find it difficult to accede to the submission of the appellant that a court faced with a contempt in its face must always go through the motion of first specifying distinctly to the contemnor the facts it relies upon as constituting contempt and, secondly calling on the said contemnor to show cause why it (the court) should not punish him for contempt; and that unless the court observed these precepts the entire proceedings by which the court found and punished the said contemnor for contempt in its-face must be null and void. Is it really, seriously, to be contended that where, for example, a party or solicitor, who after having been warned by a trial judge to desist in conducting a case for himself or on behalf of his client in a manner derogatory of and insulting to the Bench, mounted the dais and dealt a vicious blow or slap on the trial judge, was immediately apprehended and committed to prison on the orders of the said judge, the proceedings and the said order must be regarded as null and void because the trial judge. (1) did not go through the motion of calling on the party or solicitor to “show cause why he should not be committed to prison” or (2) failed to specify to him his exact offence? To so hold would, in my view, derogate violently from the respected principle upon which the power of a superior court of record to punish or commit for contempt in curiae faciae is based. The case of Watt vs. Ligertwood & Daniel decided in-1874 is another authority for the statement that when a judge, in the legitimate exercise of his jurisdiction, is defiant disobeyed, he may commit the offender instantly, to prison for contempt of court. That was a case in which a document in manibus curiae was taken away in the face of the judge’s remonstrances. A petition was presented in court by an Aberdeen advocate on behalf of his client praying an interdict from the Sheriff against the sale of certain bathing machine. The petition having been opposed by the opposite party, the Sheriff rejected the same; but when about to have his judgement written out and signed on the petition (as, under the relevant Scottish laws, it should be done), the advocate laid hold of it saying “I withdraw the petition.” The Sheriff thereupon told the advocate that the petition could not, be withdrawn and ordered the advocate to restore the document to the clerk intimating at the same time that disobedience to the order would be treated as a contempt of court. Nevertheless the advocate walked away from court taking with him the document. The clerk having been told by the Sheriff that he (the clerk) would be held responsible for recovery of the petition, asked for and obtained from the Sheriff a ‘process caption’ against the advocate and a Sheriff’s officer was dispatched armed with the ‘process caption’ to get back the document (i.e. the petition) from the advocate or to have him imprisoned should he refuse to do so. On entering the advocate’s office the court functionary (i.e. the Sheriff’s officer) demanded the petition from the advocate who then threw the petition into the fire. He was there upon seized and lodged in prison where he remained till the following day when he was released. The advocate then brought an action against the Sheriff, the clerk (i.e. Sheriff-clerk) and the Sheriff-clerk-depute contending that the `process-caption’ should be rescinded and annulled and in addition he asked for £5,000 damages having lost in the court of trial and in the appeal therefrom (in the Court of Session) the advocate appealed to the House of Lords. One of the main contentions on behalf of the appellant was that the `process-caption’ was an inappropriate remedy which, at all events ought not to have been issued WITHOUT PRIOR NOTICE to the appellant (i.e. the advocate). The appeal was dismissed. [See: Watt vs. Ligertwood & Daniel (1870-75) L.R. 2H. L. Sc 361]. Now, the argument on behalf of the appellant is that the process-caption was illegally and incompetently granted for recovery of the petition because he neither borrowed the petition nor granted a “borrowing receipt” therefore. On the legal point for which reference is made by me to the case the judgement of Lord Cairns, L.C. most useful; relevant portions thereof read:
“My Lords, by one of the practitioners of the Sheriff Court of Aberdeen an act is committed in the year 1867 which I am unable to describe in any other way than as a gross and unjustifiable contempt of court. A document which this House had held to be part of the process depending in the court and which was clearly in custodia curiae was carried away by the appellant, in defiance of an express order from the judge, and after distinct intimation had been given to the appellant that if he removed the document in question the act would be and would be treated as contempt.
On the part of the appellant it is suggested that what the court ought to have done was to issue a process-caption with all the accompaniments by which it is ordinarily accompanied, and stating that if he did not return it a process-caption would issue. This process-caption is a proceeding applicable to cases in which a practitioner of the court borrowing a document belonging to the court gives a receipt for it and is under obligation to return it when called upon. In these cases notices must be given, there being no time originally fixed for the duration of the loan; and the notice must precede any process for the purpose of enforcing the return. But, my Lords, any proceeding of that kind would have been entirely inapplicable in the present case. Well, then, what could the judge do? In my opinion, treating this as he stated he would treat it, as a contempt of court, might have proceeded at once with the cognizance he had of the whole subject and vindicated the dignity of the court by ordering the offender to be committed without more, leaving the contempt to be purged in the usual way … I only express my opinion that the judge was entirely warranted in issuing this warrant or caption, and in my opinion the dignity of the court would not have been vindicated if some proceeding of this kind had not been taken” [underlining by me, see (1870-75) L.R. 2 H. L. Sc. at 362-363-364].
Again I pause to observe that I should not be understood in any way to question or seek to whittle down the force of the authority of the cases of Re Pollard (Supra) and Chang Hang Kiu vs. Piggott Lai Him Firm (1909) A.C. 312. One other case I would like to discuss in connection with trials for contempt of court and in which the Board of the Privy Council applied Re Pollard (Supra) is Maharaj v. Attorney-General for Trinidad Tobago (1977) 1 All E.R. 411. It is a Case which is also important because it emphasizes that the summary power of punishing for contempt should be sparingly used and only in serious cases; for although it is a power which superior courts must of necessity possess there must be wisdom and restraint in its exercise and in any event it is not meant to be used in suppressing methods of advocacy merely because the methods are offensive – [see also Lord Goddard in Shandesani vs. King Emperor (1945) A.C. 264 particularly at 270]. Maharaj v.. Attorney-General (Supra) is a case in which a legal practitioner L. M. who was due to appear before judge S.M. in two separate matters specially fixed for hearing on a particular day the 14th of April failed to do so because he was engaged in another court in a case in which hearing became unduly protracted. Applications, for adjournment in the cases before judge, S.M., by another counsel who held the brief of L.M. were each refused and the proceedings concerned were in each case concluded without the clients of L.M, being given a hearing, or at least a fair hearing. Later on 15th April L.M. appeared in Chambers before judge S.M. and complained of the events of the 14th April and in doing so he tactlessly and discourteously asked judge L.M. disqualify himself from taking any further cases in which he L.M. was engaged as counsel on the ground that he the judge (S.M.) had behaved unjudicially on 14th April. The judge did not suggest to L.M. that he was, on account of his statements on that day, in contempt of court although he did tell him that he abused his privileges as a barrister.
However, on 17th April while conducting another case in open court before judge. S.M., the application of L.M. for recall of two witnesses – who gave evidence on the 14th April while the defendants (clients of L.M.) were unrepresented for cross-examination was refused by S.M. Apparently considering this refusal of his application, after the events of the 14th April, as repeated in open court-what he had told judge S.M. previously in chambers stating in addition that he “reserved the right to impeach the entire proceedings”- meaning, presumably that he intended to appeal. Judge S.M. took the curious course of writing out the following question to the L.M. “Are you suggesting that this court is dishonestly and corruptly doing matters behind your back because it is biased against you?” It is relevant here to observe that L.M. had never suggested that the judge had ever done anything corruptly or dishonestly. The judge had been accused of unjudicial conduct and as stated in the language of Lord Salmon who delivered the opinion of the Board [(1977) 1 All E.R. at 415], that expression “covers a wide spectrum from instances in which (a) judge has asked far too many questions or, by an excess of zeal for speedily disposing of his list has prevented, one side or the other or both from properly presenting their case, to instances in which a judge has acted dishonestly or corruptly.” In reply to the question from judge S.M. learned counsel L.M. (who is the appellant in this case) replied: “I do not think the question arises. But I say you are guilty of unjudicial conduct having regard to what I said yesterday”. Again it is, I think, relevant here to observe that their Lordships of the Board of Privy Council who heard the appeal were,-however “satisfied that the appellant did not by his answer impute any corruption or dishonesty against the judge.”
However, on receipt of the answer from L.M. the following dialogue took place:
“[Judge S.M.!] Mr. Maharaj you are formally charged with contempt of court and I now call upon you to answer the charge.
[The Appellant:] I am asking to have an adjournment to retain a lawyer.
[The Judge:] Application refused:
[The Appellant:] I am not guilty I have not imputed any bias or anything against Your Lordship.
[The Judge:] Mr. Maharaj, do you have anything to say on the question of sentence?
[The Appellant:] I want to consult Dr. Ransahoye to whom I have spoken about this matter and as a result of whose advice I appealed in the other matters.’
[The Judge:] 7 days simple imprisonment”
In the formal order of the court it was stated that judge S.M. considered L.M. on 17th April to have been guilty of gross contempt because he had said that the court was guilty of unjudicial conduct; and in the written reasons for his decisions judge S.M. described L.M.’s conduct, on 17th April as “a vicious attack on the integrity of the court.” It was the view of their Lordships of the Board in allowing the appeal of L.M. that the judge mistakenly persuaded himself that the appellant had made such an attack on him [sic: a vicious attack on his Integrity] and applying Re Pollard (Supra) their Lordships [Lords Salmon, Edmond-Davies and Fraser] advised that the appeal be allowed stating inter alia that Maharaj J. (i.e. judge S.M.) in charging the appellant for contempt did not make plain to him the particulars or the specific nature of the contempt with which he was being charged; and adding that “in their Lordship’s view, justice certainly demanded that the judge should have done so in this particular case.” Had he done so he would have given L.M. the opportunity of a proper answer to the effect that the “unjudicial conduct” of which the judge complained had nothing to do with the judge’s integrity.
Again the decision in this case [Maharaj (Supra)] underscores the point that I seek to make which is that where the judge decides to proceed by a `trial’ for contempt of court even if in curiae faciae then no matter how summary he intends the proceedings to be, the contemnor must have a fair trial before he is visited with punishment [i.e. he must have particulars of the charge or at least the gist of it – see Kiu vs. Piggott (Supra) – and must have the opportunity of answering the charge] Here, [i.e. in Maharaja (Supra) from the moment judge S.M. said to L.M. “You are formally charged with contempt of court”, a `trial’ had begun and, in the event L.M. pleaded to the charge and did say: “I am not guilty…“
However, it should be observed that in Re Pollard (Supra) none of the six offences for which Edward Hutchinson Pollard Q.C. was convicted by the learned Chief Justice of Hong Kong amounted in law to a contempt of court; in the second place, had the offences amounted to contempt of court they would not have been contempt incuriae faciae. There was therefore, no question in that case of contempt in the face of the court. It does appear, however that the learned Chief Justice adopted a procedure which in some way could be described as “trial proceedings” albeit, in my respectful view, highly irregular; certainly the proceedings show that he was not dealing with, and punishing the “offences” instanter. If he chose to proceed by some form of trial then it was obligatory on him to give the appellant a fair hearing which he never did [see (1909) A:C. 108, 109, 110, 111-113]. In those circumstances it is my respectful view that the opinion of their Lordships of the Board of Privy Council [Sir William Erle, Wood, Selwyn L. JJ. Sir James William Colvile and Sir Edward Vaugham Williams] in the case is meant to govern procedure for “trials” for criminal contempt. I take the respectful view that their Lordships did not, and cannot properly be taken to have intended by their opinion in Re Pollard to detract from the age long or pristine right of judges of superior courts of record to deal with and punish instanter without the motion of a trial – for contempt in curiae faciae. In the Piggott case (Supra) their Lordships remarks, again, must be taken to apply to trials for criminal contempt [NOT to proceedings by which a judge deals with, and punishes instantly for, contempt in the face of the court.] As was observed by their Lordships of the Board [Lord Macnaghten, Lord Atkinson, Lord Collins and Sir Arthur Wilson] – section 31 of the Hong Kong Supreme Court Ordinance of 1873 under which the proceedings which gave rise to the appeal was initiated, intends that perjurers and those connected with, offences committed in the course of their testimony on oath should be prosecuted; the court was required to direct a prosecution for perjury or in the alternative to commit a witness who perjured to prison. On a proper reading of the section their Lordships were of the view – which I respectfully adopt for the purpose of my analysis of the Piggott case – that “the alternative course left open to the judge by the Ordinance [i.e. Hong Kong Supreme Court Ordinance of 1873] of committing a witness as for contempt of the court contemplates summary proceedings on the spot not involving a statement or trial of specially formulated issues.” [see (1909) A.C. 315 per Lord Collins (square brackets and contents supplied by me)]. But there has to be a trial in any event. Continuing his observations, Lord Collins said:
“… the language used by the Chief Justice was quite sufficiently specific to make the appellants aware of the pith of the charge against them, they think that the Chief Justice should, before sentencing them, have given them an opportunity of giving reasons against summary measures being taken. This need not have involved, as suggested in argument, the case being thereupon retried and witnesses recalled, which would have deprived the alternative course of the summary character which (it is reasonable to suppose) was deemed important by the framers of the Ordinance who enacted it as an alternative to formal proceedings for perjury; but it would have given an opportunity for explanation and possibly the correction of misapprehension as to what had been in fact said or meant [see (1909) A.C. at 316 “underlining by me”]. In this way the statute expressly took away in this particular in the common law procedure for instant punishment for contempt in the face of the court; it contemplates some kind of trial of the witnesses for contempt of court resulting from their perjury, although such trial need-only be summary in character.
In the circumstances, I am firmly of the view that the cases of Re Pollard (Supra) and Kiu vs. Piggott (Supra) do not avail the Senator in this appeal in so far as he prays them in aid of his submission that the procedure adopted by the learned Chief Judge of the Federal High Court on 2nd April, 1981, in convicting and punishing him for contempt of, court in curiae faciae is in error of law.
Now, in the case in hand, there is no doubt whatsoever in my mind that ground (1) of the proposed grounds of appeal filed by the appellant and exhibited with the affidavit in support of his motion on notice praying the court of the learned Chief Judge on 2nd April, 1981, to exercise its discretion in granting him locutory injunction was refused, was, indeed, contemptuous of the learned judge in the exercise of the duties of his office. When set against the background of the proceedings of the 13th day of March, 1981, and the insult poured on, the same judge on that day in the exercise of his duties of his office it is difficult to imagine a more brazen method of scandalizing the court. It was clear from the proceedings that not only, was the pith or gist of his contempt clearly put to the appellant by the learned Chief Judge, he (the appellant) clearly understood that the complaint of the learned Chief Judge was in respect of the entire ground (1) of his proposed appeal. Further there is no doubt that when the learned Chief Judge said to the appellant, “I call on you to withdraw your ground (1) of your proposed grounds of appeal I consider it an insult to this court. I give you 5 minutes to withdraw it and apologize”, he (the appellant) was being called upon and being given opportunity, to explain why the said ground of appeal could not be regarded as an insult or at least to, explain that it was not so intended, and if need be, to apologize to the court. In other words he was being asked to show cause why he should not be dealt with and punished for contempt of court: The appellant a lawyer of many years experience and, an ex judge of a High Court in this country must have so understood the request of the learned Chief Judge and in the course of argument of his appeal in this court he conceded that that was his understanding of the request of the learned Chief Judge. What then was his explanation? What did he show as a basis on which the court should refrain from dealing with, and punishing, him for contempt of court? Nothing! Rather, he told the court: “You upset me. I have a right to file my grounds of appeal” Even if this case were one of trial brevi manu and I do not so hold, having stated that it is a case of instant punishment, the procedure for trial in contempt cases, was indeed, complied with.
I have carefully considered the judgement of their Lordships of the Federal Court of Appeal which upheld the conviction by the learned Chief Judge of the appellant for contempt in curiae faciae and I am unable to accede to the appellant’s contention that it is in any way erroneous.
It only remains for me to, consider whether the present Constitution of the Federation has in any way detracted from the common law powers of our courts to punish for contempt of court in curiae faciae. This becomes necessary because there is no Section in the 1979 Constitution of the Federal Republic of Nigeria which is similar to section 22(10) of the 1963 Constitution of the Federation of Nigeria No. 20 of 1963. Section 22 (10) aforesaid provides-
“No person shall be convicted of a criminal offence […]is defined and the penalty therefore is prescribed in a written law. Provided that nothing, in this subsection shall prevent a court of record for punishing any person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefore is not so prescribed.”
As I already said there is no provision similar to section 22(10) of the 1963 Constitution in our current Constitution i.e. the 1979 Constitution. However, subsection (3) (a) of section 36 and subsection (a) of section 6 of the 1979 Constitution of this country when read together with section 6 of the Criminal, Code Act, Chapter 42 of the 1958 edition of the Laws of the Federation of Nigeria undoubtedly preserve in favour of our courts the pristine common law right of our courts to punish for contempt in curiae faciae – a specie of offence which cannot, admit of exhaustive categories thereof and consequently is unavailable in any written Code of Law in our statute books. Section 36 (3)a of the 1979 Constitution reads:
“(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society – (a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or…” [underlining by me]
and section 6(a) of the said Constitution reads:
“(6) The judicial powers vested in accordance with the foregoing provisions of this section –
the expression “inherent powers of a court of law”, of course, can only mean the inherent powers of a superior court of law in the common law countries of which this country is one. `In the event, the said of the, 1979 Constitution preserve for our courts of record all the common law rights of courts of the common law countries to deal with and punish for contempt of court; and section 6 of the Criminal Code Act aforesaid provides, as follows:-
“Nothing in this Ordinance or in this Code shall affect the authority of courts of, record to punish a person summarily for the offence commonly known as contempt of court; but so that a person cannot be so punished and also punished under the provisions of the Code for the same act or omission.”
Section 133 of Chapter XIII of Part III to the Schedule to the Criminal Code Act provides for specific offences which should be treated as, and punished for being in, contempt of courts of record. The Criminal Code Act is an “existing lawn within the purview of paragraph (b) of sub-section 4 of section 274 of the 1979 Constitution of this country and not being in conflict with any other existing law or any provision of the said 1979 Constitution (section 274(3) (a) (b) (c) and(d) refer) the provisions of section 6 of Chapter 42 of the 1958 edition of the Laws of Nigeria – the Criminal Code Act – undoubtedly also preserves the rights – at common law – of our courts of record to deal with and punish for contempt of court.
I cannot conclude this judgement without some reference to one of the most recent decisions of the Court of Appeal in England on this subject. It is the case of Balogun v. St. Albans Crown Court (1975) 1 Q.B.D. 73. I do not consider it necessary to set out the facts in that case but will only refer to a portion of the judgement of Stephenson L.J. in that case which, in my view, goes a long way to support what I have said so far and all of which I have relied upon in coming to the conclusion that this appeal must be dismissed; that passage states:-
“The power of a superior court to commit (or attach) a contemnor to prison without charge or …is very ancient, very necessary, but very unusual, if not indeed unique. It is as old as the courts themselves and it is necessary for the performance of their function of administering justice, whether they exercise criminal or civil jurisdiction. If they are to do justice they need power to administer it without interference or affront, as well as to enforce their own orders and to punish those who insult or obstruct them directly or indirectly in the performance of their duty or misbehave in such a manner as to weaken or lower the dignity and authority of a court of law …” [See (1975) 1 Q. B. at 88].
In a later-portion of-his judgement Stephenson L.J. made certain observations which, again I consider particularly germane to proceedings for instant punishment for contempt in curaie faciae: said the learned Lord Justice:
“… but when a judge of the High Court or Crown Court proceeds of his own motion, the procedure is more summary still. It must never be invoked unless the ends of justice really require such drastic means; it appears to be rough justice; it is contrary to natural-justice; and it can only be justified if nothing else will do.
But if a witness or juror is bribed or threatened in the course of a case, whether in the court or in its precincts or at any distance from it the judge must act at once against the offender and if satisfied of his offence, punish him, if necessary by committing him to prison”
[See (1975) 1 K.B. at 90: underlining by me].
From the foregoing observations, it is my firm view that the answers to each of the threshold questions in this appeal must be in the affirmative; that being so it follows that this appeal must fail. The appeal is hereby dismissed and the judgments of the Federal Court of Appeal in FCA/L/78/81 given on the 4th day of November, 1981, and that of the High Court (Anyaegbunam, C.J. Federal High Court) in FHC/L/11/81 given on the 2nd day of April, 1981, are hereby affirmed.
The appellant, a retired judge of the Bendel State High Court and presently a Senator in the National Assembly, was committed for contempt of court by the Chief Judge of the Federal High Court, Lagos. His appeal to the Federal Court of Appeal Lagos (Ademola, Nnaemeka-Agu, Karibi-Whyte J.J.C.As) was dismissed. He has now appealed to this court and complained generally, of certain breaches of the principles of natural-justice. My brother Idigbe has exhaustively dealt with all these in his judgment and I am in complete agreement with him.
The appellant, in my View, no doubt realized that his appeal to this court is against the judgment of the Federal Court of Appeal, Lagos. His complaints; as set out in the, grounds of appeal and within his brief of argument were directed against the judgment of the lower court. In his address to this court all his arguments were against the judgment of the Federal High Court. The appellant in this case, though he denied it before us, knew as he was informed that, that award of the honour to the Chief Judge was made on the 1st October, 1980 and one should have thought that on his being informed he would have withdrawn his allegation about the award being made on the 7th March, 1981. He did not. He still maintained his ignorance, before us.
But with respect to him, I do not believe it. I am satisfied that he knew that the award was made on 1st October, 1980 and the investment of the honour was on 7th March, 1981. These incidents were well known to him as contained in the judgment, of my brother Idigbe and he dealt with them. I do not intend to comment.
On previous judgments of this court guidelines had been given to judges concerned on contempt cases. What is most important is to remember the dignity and authority of a court.
I agree that the appeal be dismissed and the judgment of the Federal Court of Appeal be affirmed.
I have had a preview of the judgment which has just been read by my learned brother Idigbe, J.S.C. I agree entirely with the reasons given in the judgment.
My learned, brother has indeed dealt with, in detail, the important points in this case. I will however like to sound a word of restraint to Judges of Superior Courts as regards the use to be made of their jurisdiction to punish for contempt committed in facie curiae. The power is no doubt, necessary for the advancement of justice and the good of the public. (See Ex parte Fernandez (1861)10 C.B.N.S. 3, 38). It is a jurisdiction which belongs to all courts but as Lord Denning said in Reg.. v. Commissioner of Police of Metropolis ex parte Blackburn No. 2 (1968) 2Q. B.150 at p. 154
“which we will most sparingly exercise most particularly as we ourselves have an interest in the matter.” (Underlining mine).
That was a case where the Court of Appeal in England found itself considering an allegation of contempt against itself for the first time in the history of that Court. The learned Master of the Rolls gave the following advice which I think should be adopted as a golden rule by all Judges of Superior Courts –
“We must rely on our conduct itself to be its own vindication.”
In Boyo v. Attorney-General of Mid-West (1971) 1 All N.L.R. 342 this court warned (vide p.352 ibid.) –
“whether the contempt is in the face of the court or not in the face of the court it is important that it should be borne in mind by judges that the court should use its summary powers to punish for contempt sparingly. It is important to emphasize the fact that judges should not display undue degree of sensitiveness about this matter of contempt and they must act with restraint on these occasions. (Underlining mine).
See also Awosanya v. Board of Customs (1975) 1 All N..L.R. 106 at p.118; Deduwa and ors. v. The State (1975) 1 All N.L.R. .1
For the Court to charge every unseeming act as contempt of court would in most cases, tend to lower the dignity of the court itself. A negative result could only be achieved and the authority of the court whittled down. It is for this reason that where the contempt is in facie curiae, it is preferable to go by indictment and ordinary criminal process, except, in exceptional cases. For sometimes and in those exceptional cases; if one is to wait, for that to be done by an ordinary criminal process and an ordinary trial, there might be great mischief done. It is true an ordinary criminal process is slow and before the process is put into train in those exceptional circumstances the mischief might have been done and the due administration of justice hampered and thwarted.
(See In re Skipworth (1873) L.R. 9 Q.B. 230 at p.233 as per Blackburn J)
It is also worthy of note that the jurisdiction of the court in regard to contempt procedure is for the protection of the court and not the personal aggrandisement of the judge. Let me bring into focus again what this court said in Deduwa and ors. v. The State (1975) 1 All N.L.R. at p.16. The powers of contempt 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 the addition 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”.
In proceedings instanter or trial brevi manu, the Judge before whom is the contemnor, is the prosecutor, witness and judge. Not that it is by reason therefore illegal, as such trial, though not prescribed in any written law, is part of the functions which have been associated from time immemorial with the inherent jurisdiction of any court of record: (Deduwa v. The State (supra) ibid p.13).
And so the conduct of any court is only highlighted by its patience in face of explosive situations. True it is, it might sometimes take the patience of Job but patience, like the respect it invites, takes nought off but add more. And in explosive situations, as Salmon L.J. said in ex parte Blackburn supra ibid p.157 “silence is always an option” and in my considered view, a good option too.
In the Court of Appeal in England was the case of a Miss Jones who was often in that Court. She made an application before the Court and the Court refused it. She was sitting in the front row where she was so proximate to a bookcase. It was within her reach. Miss Jones picked up one of Butterworth’s `Workmen’s Compensation Cases’ and threw it at the Judges. It passed between two of the Lord Justices. She picked up another. It went too wide. Miss Jones then said “I am running out of ammunition. The Court took little notice of Miss Jones who had hoped the court would commit her for contempt of court. “Just to draw more attention to herself.” But as the Justices took no notice, Miss Jones went towards the door, and left saying:
`I congratulate your Lordships on your coolness under fire.’
See Lord Denning: The Due Process of Law p: 6.
I do expect however, that the Court’s patience should not be taken as a license for dragging the court into unnecessary controversy for as Lord Denning said in ex parte Blackburn (supra) and I agree
“all we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less political controversy”.
I would, however, after saying all these not wish to be misunderstood that the court should, where necessary, not preserve and guard its dignity. The court will fail in its duty if it carries restraint to the extent of permitting the court to be scandalised. And the instance case offers a classic. For if Anyaegbunam C. J. has not taken the stand he took in the instant action the court would have, in my view, been disgracefully scandalised.
The appellant is a man who, by his training and the various judicial offices he has held, coupled with his close association with the law of contempt, of great experience and learning in the law both at the Bar and the Bench. It is to his credit though that he admitted in this court that when the court said that one insulted the court it meant contempt of court; and when the Court asked him (Senator Atake) to withdraw the offending ground of appeal he understood the Judge to mean that he, the Senator, was contemptuous of his court. The particulars of the ground of appeal leave no reasonable person in doubt that what the Senator was saying was that the learned trial Chief Judge had taken a bribe from the President of the country in the nature of award of national honour between the time the Judge heard arguments in the application before him and the time he was to deliver a ruling in it.
I agree with my learned brother Idigbe J.S,.C that this is very serious act of contempt of the learned trial Chief Judge’s Court and the Chief Judge gave the Senator sufficient latitude in the matter.
Once the appellant failed to take advantage of the opportunity given him by the court I think the court had no choice but to commit him, and rightly too, instanter or with a trial brevi manu for the circumstances of both are satisfied in this case.
I am fully satisfied that having regard to the admissions of the appellant in this court, his conviction apart from satisfying an instant conviction for contempt will also satisfy the procedure for a trial brevi manu. The appellant was being cited for contempt. He was given time to withdraw, or in other words to show cause if he would not withdraw the contemptuous allegation against the court, why he should not be convicted for contempt. The procedural requirements of a fair hearing have been observed – See Awosanya v. Board of Customs supra. The dock referred to in Deduwa and ors. v. The State (1975) 1 All N.L.R. 1 at p. 15 becomes an imaginary dock, for once the contemnor is made aware that he is being charged with of court he is in the “dock”.
For all these reasons and the reasons so lucidly given by my learned brother Idigbe J.S.C in his judgment the appeal must be dismissed and it is hereby dismissed.
I have been privileged to have a preview, in draft, of the judgment just read by my learned brother, Idigbe, J.S.C., and I am in complete agreement with him, that, for the reasons stated by him in the judgment, this appeal should be dismissed.
It is necessary to emphasise that the appellant was an experienced and practiced advocate before he was appointed a High Court Judge and, as he readily admitted before us, he was conversant with proceedings for contempt of court.
The nature, degree and quantum of attention which it is necessary for a trial judge, in proceedings for contempt ex-faciae, to bring to the notice of the contemnor is dependent upon the level of understanding of the contemnor. A stark illiterate country-dweller-contemnor may require more words in simplistic language to bring home to him what his offence before the Court is all about and the necessity for his explanations, as against an educated and sophisticated urban dweller who is used to the courts and their purposes. And so, to a lesser degree will be the case of an ex-judge who, by training and experience, understands the pith and essence of the offence of contempt of court. The clarity of the situation is even more so when that ex-judge, as in the instant appeal, has been one who, as a trial judge, had, in at least two celebrated cases [GODWIN MOGBEYE BOYO v. ATTORNEY-GENERAL OF MID-WEST STATE (1971) 1 All N.L.R. 342; and A. U. DEDUWA and others v. EMMANUEL A. OKORODUDU and Others (1975) 2 S.C. 37] cited people in contempt of court and dealt exhaustively with the salient law involved. In all fairness to the appellant, he readily agreed that he understood the Chief Judge, in his peremptory, order to him to withdraw within five minutes his ground one of his grounds of appeal and apologize, to mean that the learned Chief Judge was proceeding against him, as of contempt of Court, in respect of that ground of appeal.
The second matter on which I wish to lay emphasis is the duty of a judge presiding over a court, in the interest of society, to preserve the authority, and dignity of the court, and the awe and reverence with which the public regard the courts. This is necessary if the smooth administration of justice will proceed uninterfered with.
To allow people to insult, belittle or make caricature of the courts, or the judges presiding therein, is to expose the administration of justice to the grave danger of inhibiting the appreciation of our people of our courts, and the necessity of the people confidently having recourse to our courts, for the settlement of their disputes. Against the background of a largely illiterate society, any diminution of the authority and respect of the courts is an invitation to chaos and disorder.
In such a society, against the background of the present universal world of violence, the necessity for, and, the duty of a court subjected to contempt ex-facie or in-facie curiae, to quickly, and if possible in the immediate presence of those who witnessed the insult, restore the dignity and authority of the court by sharp, instantaneous and incisive response, is of utmost importance. For a judge presiding over such a court to let such a contempt of his court to pass unpunished is for him, to use the phrase of Lord Diplock, to… “be quite irrational and subversive of the rule of law … (CHOKOLINGO v. ATTORNEY-GENERAL OF TRINIDAD AND TOBAGO (1981) W.L.R. 106 at 112).
The above duty of a judge must be balanced by the other requirement that a judge must not give in to intemperate and excessive reaction, or be easily irritable to a party’s conduct of his case. Always guided by mature experience on the Bench, a judge is to exercise judicial probity realizing that in some cases excessive reaction from a judge may do as much harm to the image of the court as insufficient reaction to a blatant insult. The mean between the two is the quality by which a good judge is known.
In the result, this appeal is hereby dismissed and the judgments of the courts below hereby affirmed.
I entirely agree with the reasons given and the conclusion reached in the judgment read by my learned brother Idigbe, J.S.C. I would like, however, to add the following by way of emphasis.
The proposed ground of appeal which gave rise to the appellant’s conviction or contempt of court reads:
“1. That the entire decision is a nullity in that there was a real likelihood of bias on the part of the learned trial judge (sic).
The plaintiff filed an Interlocutory Application, for an Injunction against the 1st Defendant. Final address (sic) were heard on 20th February, 1981 and the Court adjourned its Decision to the 13th of March, 1981. In the interim namely on 7th of March, 1981, the learned Trial Judge, (sic) received gratification /favour from the 1st Defendant in the form of a National Award of Honour viz Officer of the Order of the Federal Republic.”
On the 2nd April, 1981, the learned Chief Judge directed the appellant to withdraw the proposed ground of appeal within five minutes because he (the learned Chief Judge) regarded it as an insult to his court. In addition to the withdrawal the appellant was to tender an apology [to] the court. The appellant retorted that he was upset by the learned Chief Judge and that he had the right to file the proposed ground of appeal. At the expiration of the five minutes the appellant neither withdrew the ground nor offered an apology to the court. Thereupon the learned Chief Judge committed him to prison for contempt by saying:
“Having refused to withdraw the offending ground l of your proposed grounds” of appeal after five minutes given to you, I commit you to prison until you apologise and withdraw the ground which I regard as contempt on the face of this court. In the Federal Court of Appeal you are at liberty to file any grounds you may wish to.”
It is necessary to draw attention to what transpired before the learned Chief Judge on the 13th March, 1981 that is before the aforementioned incident. Or, that day the appellant applied that his case be transferred by the learned Chief Judge to another judge of the Federal High Court for the following reasons:
“On 25/2/81 arguments were concluded in this matter. Ruling was adjourned to 13/3/81. On 7/3/81 1st Defendant/Respondent (i.e. the President of the Federal Republic of Nigeria) saw it fit to confer on your Lordship the (National Honour of O.F.R. I sued the President in his official capacity. The award was conferred to (sic) official capacity. No party in a suit in any Court can confer an honour on the adjudicating judge. I impute no actual bias or actual prejudice to your Lordship…. The Presidents character is in issue… If there is any likelihood of bias the Court is disqualified from taking this case. What would a reasonable man say if the ruling goes against me? I tell your Lordship what he would say. What do you expect after all he has been conferred with the (National) Honour of O.F.R. If the ruling is in my favour the ordinary man would say that Judge is a superman. He is above the run of the ordinary man. My complaint is about the timing. The timing is wrong.” (underlining and parenthesis mine).
This application was refused by the learned Chief Judge and it was sequel to the refusal that the appellant sought the leave of the learned Chief Judge to appeal under S.221(1) of the Constitution of the Federal Republic of Nigeria, 1979 to the Federal Court of Appeal.
It is pertinent here to observe that the National Honour in question was in fact awarded to the learned Chief Judge on the 1st October, 1980 (together with numerous other Nigerian citizens from various walks of life) and not on the 7th March, 1981 as was alleged by the appellant. What took place on the latter date was the general investiture of the National Honours so awarded to all the recipients including the learned Chief Judge. So that the imputation made by the appellant that the National Honour was awarded to the learned Chief Judge while the appellant’s case was pending in his court was grossly inaccurate and therefore false.
Before us the appellant conceded that an insult to a court could give rise to a contempt in the face of the court but argued that the learned Chief Judge should have directed his (appellant’s) attention to the part of the proposed ground of appeal which was considered by the learned Chief Judge to amount to contempt. I am unable to accept the argument. The committal of the appellant must be viewed in the light of all that took place in the court of the learned, Chief Judge from the 13th March, 1981 to the 2nd April, 1981. This was also conceded by the appellant.
As already shown the allegation made by the appellant was inaccurate. Secondly, to falsely impute that a judge has received gratification from a party to a case before him and that as a result there is a likelihood of bias in his decision in the case is clearly a conduct amounting, in the circumstances of this case, to contempt in the face of the court. In my view, it was not necessary to call the attention of the appellant to any part of the proposed ground of appeal any more than was in fact done by the learned Chief Judge when he said that he considered the ground as an insult to his court.
It was further contended by the appellant that the learned Justices of the Federal Court of Appeal were wrong in attaching to the word “gratification” in the proposed ground of appeal in question the meaning of “reward, recompense, gratuity or bribe” when it could also mean” delight, pleasure or satisfaction”. I do not think that this argument has in any way affected the view which the learned Chief Judge took of the proposed ground, as a whole, to be contemptuous of his court. It is true that the word “gratification” has different meanings depending on the usage that one makes of it. But in the present case what matters is the meaning by which the learned Chief Judge understood it to have been used. Moreover whether a particular word or conduct amounts to a contempt is a question of fact; so that language which might be perfectly proper if uttered or employed in temperate manner may be grossly improper if uttered or employed in a different manner – see Halsburys Laws of England 4th Edition Volume 9 paragraph 6 followed in convicting the appellant I fully agree with my learned brother Idigbe J.S.C. that it was not necessary to ask the appellant to go into a dock and be asked to, show cause why he should not be convicted for contempt of court. His was a contempt in the face of the court which called for immediate punishment. That is where the distinction lies between this case and the cases of Abachom v. The State (1970) 1 A11 N.L.R. 69 and Deduwa v. The State 1975) 1 All N.L.R. 1 which the appellant cited in order to show that the procedure followed by the learned Chief Judge was erroneous.
Accordingly the appeal fails and I will dismiss it. The decision of the Federal Court of Appeal affirming that of the Federal High Court is hereby confirmed.