It’s is frustrating being a lawyer in a lawless society.
Is the OFFENCE not bailable? Is bail no longer a constitutional right of the accused, to be debated based on the judge’s discretion to be exercised judicially and judiciously? What factors has made SOWORE’s case different?
Why is the SSS disobeying the order of a competent co it of law? Why is SOWORE still in detention after having been granted bail, and after having fully met his bail conditions? Is DSS/SSS now a law unto itself?
Have we not lost it all? Honestly, if I were in the shoes of Hon Justice Taiwo, the DG DSS/SSS would be behind bars now for disobeying, for even a day, court orders relating to respect for constitutionally guaranteed liberty of the human person. If anyone has a case against SOWORE, let the prosecution put forward their case and get SOWORE convicted and thrown to jail. Enough of Nigerians standing by while this country and its legal system are being senselessly degraded and dragged back to the Stone Age.
If I were in the judge’s (Hon Justice Taiwo’s), I would adjourn the case to the next day and direct that SOWORE be personally produced in court the next day. And also that the DSS lawyer must report to the court that he (SOWORE) has been released as directed.
Filing of Formal contempt proceedings is waste of time. Unnecessary! If a court’s order is this unashamedly and unscrupulously and flagrantly disobeyed, the judge needn’t wait for any other formal “contempt” procedure to take charge and immediately and authoritatively compel Obedience/respect for his orders, properly made. In that way, heads of agencies would wake up to respect rule of law or quit.
I wish I were in Justice Taiwo’s shoes. The accusatorial/adversarial criminal justice system is carefully designed to ensure fairness and protection of the accused, lest people be wrongly victimized or convicted; freedom is paramount and any reasons for taking it away must be compelling and apparent even in the face of unmitigated advocacy for the accused. The adversarial processes aim precisely to give every bit of benefit of the doubt to any person or persons accused but not yet convicted. In this way, we can be sure that only the guilty is punished. As Justice Benjamin Cardoso said in *Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)), “Justice, though due to the accuser and the society, is due the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true Also, as Justice William Orville Douglas rightly stated, the function of the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; his function is to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial. Hon Justice IBRAHIM MOHAMMED MUSA SAULAWA, JCA said in a judgment delivered on January 4, 2007, in APPEAL NO.CA/PH/161/99 (WHYTE V KWANDE))
” I should have thought that fairness, even-handedness and above all respect for rule of law would characterize the behaviour and standards of such men who found themselves in public offices”
Hon Justice PIUS OLAYIWOLA ADEREMI, (JSC) said in HON CHIBUIKE ROTIMI AMAECHI V. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227)
”Finally, on this point, I wish to say that in all countries of the world which operate under the rule of law, politics are always adapted to the laws of the land and not the laws to politics. Let our political operators allow this time-honoured principle to sink well into their heads and hearts.” What’s Hon Justice Taiwo waiting for in SOWORE’s case? Do they want this profession annihilated?
I respectfully submit that any court of law, worth its onions, is entitled to punish (with disciplinary injunctions) willful disobedience to, or disregard of, its clear orders or any willful misconduct by a lawyer or a litigant in the presence of the court, or in respect of a case pending before the court; and indeed with any willful action by anyone (however highly placed) that interferes with the court’s ability to administer justice or which brazenly insults the dignity of the court of law. The rules regulating contempt of court apply both to lawyers and non-lawyers alike. Contempt is punishable with fine or imprisonment or both.
So, what is Hon Justice Taiwo waiting for now? There are both civil and criminal contempt; although the distinction is often unclear. However, direct contempt or contempt in facie curiae (that is, contempt committed in the face of the court or that took place within the court`s precincts or that relates to a case that is currently pending before that court) may be punished by the presiding judicial officer himself, SUO MOTU. There is no doubt therefore that in most cases where contempt is committed in the face of the court (in facie curiae), the presiding judge or magistrate can SUMMARILY try and punish the contemnor (the person alleged to have committed the act amounting to contempt).
The difficult question, however, is whether the presiding judicial officer can try and punish where the contempt is committed outside the court room but in relation to a matter still pending in court and against the person of the presiding officer? The Court of Appeal’s decision in Chief Dibia v. Chief Ezigwe (1998)9 NWLR (Pt.564) 78 appears to have provided useful answers to these questions. According to court, while the presiding officer can deal summarily with contempt in facie curiae, in cases of contempt committed outside the court (ex facie curiae) the proper procedure of apprehension or arrest, charge and prosecution, etc must be applied and followed. Willful disregard of a clear, positive mandatory order of court in relation to a pending case and having nothing to do with the person of the court’s presiding officer, is CONTEMPT IN FACIE CURIE, in respect of which the judge needn’t wait for filing of formal contempt proceedings before the court would act to preserve its authority and protect its dignity.
So, what’s Hon Justice Taiwo waiting for? On the other hand, where the acts constituting/amounting to contempt arose from some insult or some personality attack against the presiding officer, the affected judge is disqualified from himself dealing with case; this is in with the requirements of the twin pillars of natural justice, especially the rule of nemo judex in causa sua (one cannot be a judge in one`s own case).
Alternatively, if it is true that MR FALANA has commenced formal contempt proceedings against the offending Director of DSS, over his willful refusal to release SOWORE, then why has Hon Justice Taiwo not fixed the application for commencement of contempt proceedings to be heard the next day after the filing of the papers by MR FALANA?
I ask again, what is Hon Justice Taiwo waiting for, to assert his/her court’s powers against persons hiding under the cloak of public office to spew lawlessness against society and treat a court of law with utter disregard and disrespect? Dear Hon Justice Taiwo, please stand up and be counted, to save this country from this senseless retrogression into abysmal crudity and absurdity? What are you, Hon Justice Taiwo, waiting for, to remind us of, or reassert, the inimitable Hon Justice C. Oputa’s declaration in MILITARY GOVERNOR OF LAGOS STATE v. ODUMEGWU-OJUKWU that the laws of the land are no respecters or powers and principalities?
Is Hon Justice Taiwo sleeping on the bench? Has he/she forgot his/her oath of office? Why can’t he/she act, in the present case, with the same swiftness with which he/she had obliged DSS’s request to incarcerate SOWORE for a whole of 45 days? What is Hon Justice Taiwo waiting for while law and order, Justice and equity, and the sanity of constitutional democracy are relegated to the background in a country that has sworn to operate democratic constitutionalism on the basis of Rule of Law? Is Nigeria’s DSS now above the law? Or, is Nigeria now a country that once was? As in ”there was a sane country?” The earlier the courts woke up to assert their independence, the better for us all.