By Onikepo Braithwaite
Are the reports that I read in the various newspapers about what transpired between our learned colleague, Mr Inibehe Effiong and the Chief Judge of Akwa Ibom State, Hon. Justice Ekaette Obot (CJ), an incomplete account of what really happened to land Mr Effiong in prison for a month, for purported contempt of court? Because, so far, the available accounts do not show any contemptuous conduct on his part.
Distilled Facts & Matters Arising:
I was able to distill six facts from the various news reports that I read – 1) that the Governor of Akwa Ibom State, Mr Udom Emmanuel is the Claimant in the matter and Mr Effiong is the Defence Counsel; 2) that Mr Effiong had applied that the CJ recuse herself from the matter; 3) that the CJ asked that a Premium Times Reporter leave the court room, to which Mr Effiong politely asked the CJ to let the Reporter stay in the court room since the proceedings were in public – the Reporter however, obeyed the Judge’s order and vacated the court room; 4) that Mr Effiong expressed his discomfort to the court, on the presence of two armed Policemen in the court room; 5) that the CJ asked Mr Effiong to remove his wig and step out of the Bar – an order which he was said to have complied with; 6) that Mr Effiong was committed to prison for contempt of court without a charge being read to him, being tried and found guilty.
In Leaders & Co. Ltd v Kusamotu 2004 4 N.W.L.R. Part 864 Page 519 at 540 per M.D. Muhammad JCA, the Court of Appeal held that “A contemnor is a person against whom a committal order had been made by the court. Such an order is said to be made where the person accused of the contempt has been tried, found guilty, and sentenced for the contemptuous conduct”. To try an individual for contempt of court means to put such person in the dock, specify the charge against him/her, and ask him/her to show cause why he should not be punished for his/her contempt. See the case of Franklin Atake v AGF & Anor 1982 13 N.S.C.C. 444 at 469-470 per Idigbe JSC.
From these distilled facts, one must ask what Mr Effiong’s contemptuous conduct was? Was the proper process followed, to make him a Contemnor? The news reports also say he wasn’t properly tried, that his charge wasn’t specified and read to him. In Franklin Atake v AGF & Anor (Supra) per Idigbe JSC, his Lordship stated that he found it difficult to accede to the Appellant’s submission in that case, that without following the aforementioned trial steps in a case of contempt in the face of the court, it would be null and void. On the contrary, in the case of Joseph Agbachom v The State 1970 6 N.S.C.C. Page 62 at 67-68 per Lewis JSC the Apex Court held that “since contempt of court is an offence of a criminal character, it must be proved beyond reasonable doubt”. How is the commission of an offence proved, let alone without reasonable doubt, without a charge?
1) Recusal of the CJ
“Justice must not only be done, but also seen as done” – see the case of R v Sussex Justices Ex Parte McCarthy 1924 1 K.B. 259 per Lord Justice Heart. When Counsel asks a Judge to recuse him/herself from a matter, it invariably means that Counsel does not believe he/she will get a fair hearing, if that particular Judge hears the matter. Of course, the issue of fair hearing is extremely important, as denial of it is contrary to a litigant’s fundamental right to fair hearing as provided by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). A denial of fair hearing, vitiates proceedings; and can render them null and void. See the case of Otapo v Sunmonu 1987 1 N.W.L.R. Part 58 Page 587.
Even if one didn’t think the CJ was biased initially, the harsh punishment meted out on Mr Effiong (without due process), would allow for second thoughts.
Many judicial officers never take kindly, to being asked to recuse themselves from a case, even if it is as clear as day that for example, they may be biased. I remember as a fairly young Lawyer, being the Counsel to a Defendant in a Trademark matter before the then Chief Judge of the Federal High Court. Opposing Counsel was Sylvia Shinaba, SAN of blessed memory. I brought an application that the matter be struck out for lack of diligent prosecution after attending court about 36 times and the Plaintiff/Plaintiff Counsel failed to appear in court, or always had an excuse as to why the matter could not go on. The CJ FHC lambasted me for making the application, citing the fact that the Plaintiff being wheelchair-bound was a valid excuse for the lackadaisical manner in which the matter was being prosecuted on his behalf. When I argued that it was the Plaintiff and not counsel or the case before the court that were wheelchair-bound, and that not only was the Plaintiff in a wheelchair when he instituted the frivolous action, but being in a wheelchair was no longer seen as an impediment in the modern world, but simply a slight physical challenge, the CJ FHC lampooned me further, even calling me insensitive. Anyway, my application was denied. Subsequently, I applied that the matter be reassigned to another Judge, because the body language of the CJ FHC wreaked of bias, and I felt that I would not get justice in the case, even though I had a strong defence. My application again, was refused. Luckily, the CJ FHC retired soon after, and the case, which I eventually won, was commenced de novo before another Judge.
I know many Lawyers believe that an opponent cannot win a matter involving a State Government or a Governor in that State’s High Court; and the opponent usually has to bide his/her time to get justice when the matter goes on appeal. In these circumstances, most Lawyers just build a good case at first instance even if they are bound to lose, so that they have a strong case to present to unbiased Justices on appeal. Would this perception or misconception, be enough to prove bias? Maybe not. If the Reasonable Man’s Test is applied, would the reasonable man believe that there is bias or a likelihood of it, and that Mr Effiong’s client would not get justice if the trial continued in the CJ’s court? There must be proper, cogent grounds, for believing that a particular court is not the proper venue for one’s matter. In Deduwa v Okorodudu & Ors 1976 1 N.M.L.R. 237, the Apex Court held that “there must be cogent and reasonable evidence to satisfy the court that there was in fact, such bias or real likelihood of bias as alleged…..the mere vague suspicion of whimsical, capricious and unreasonable people, should not be made a standard, to constitute proof of such serious complaints”. Also see the case of Rafiu Jomiloju & 6 Ors v Fatai Ogisanyin Anibire & 4 Ors SC.211/2002 per Ibrahim Tanko Muhammad JSC (as he then was).
Most Lawyers would feel humiliated, if a Judge asked them to take off their wig and step aside from the Bar. Does a judicial officer have the right to do so, without just cause? Are Lawyers now little school children, that can be put in the ’naughty corner’ in open court? What was the act complained of by the CJ, that led to Mr Effiong’s committal to prison for one month for contempt of court? Surely, it could not just be his No. 3 & 4 comments highlighted in the second paragraph above, that qualified as contemptuous conduct and an affront or an insult to the Judge ‘incuriae facie’ (in the face of the court), or was there more?
Some Judges are happy to address Counsel ‘anyhow’; some are outrightly hostile and abusive to Counsel. This should not be so. There must be mutual respect, between the Bar and the Bench. If the CJ found Mr Effiong’s submissions or demeanour so distasteful, would it not have been better to accede to his request and transfer his matter to another Judge?
3) Contempt of Court
There is no exact definition of contempt of court. See Re-Dunn (1906) L.R. 490. It can either be civil or criminal contempt, and in the face or outside the face of the court. In Ezekiel-Hart v Ezekiel-Hart 1990 1 N.W.L.R. Part 126 Page 276 the Supreme Court held that contempt “is criminal, when it consists of interference with the administration of law, thus impeding and perverting the course of justice. It is civil, when it consists of disobedience to the judgements, orders, or other process of the court resulting or involving private injury”. From the available reports, we do not see evidence of either civil or criminal contempt in Mr Effiong’s conduct.
In Brittania-U (Nig) Ltd v Seplat Petroleum Development Co. Ltd & Ors (2016) LPELR-40007(SC) per Ngwuta JSC, the Apex Court held that “Contempt is an affront to the authority and dignity of the court. It can be either contempt ex facie curiae or contempt in facie curiae”. In Nzidee v Kootu 2007 1 N.W.L.R. Part 1014 Page 99 at 123 per Dongban-Mensem JCA (now PCA), the Court of Appeal held that contempt in the face of the court is that which the Judge sees with his own eyes, needs no evidence of witnesses and can be dealt with by that Judge himself (brevi manu) immediately. However, an example of contempt outside the face of the court, is an article or publication which scandalises or is calculated to bring the court into disrepute. See the case of Ebhodaghe v Okoye 2004 18 N.W.L.R. Part 905 Page 472 at 501. In such a case, a Judge involved in a contempt case outside his court should not be the one to try the case.
In Franklin Atake v AGF & Anor (Supra) Idigbe JSC quoted Stephenson L.J. in the case of Balogh v St Alban’s Crown Court (1975) 1 Q.B.D. 73 thus: “….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….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”. I submit that, so far, from the accounts available, Mr Effiong didn’t obstruct, insult or disrespect the court, nor did he insult the Judge, diminish the dignity and authority of the court or bring the court into scorn or disrepute. Why did the CJ invoke such drastic means against him? Assuming, but not conceding that the CJ thought Mr Effiong’s comments were discourteous, and we cannot rule out the fact that indeed, Mr Effiong could have been discourteous, in Ene Oku v State 1970 6 N.S.C.C. Page 53 at 58 per Coker JSC, the Apex Court held inter alia that, it is not every act of discourtesy to the court by Counsel that amounts to contempt. See the case of Ezenwankwo v State 2015 2 N.W,L.R. Part 1443 Page 265 at 278-279. In fact, in Joseph Agbachom v The State (Supra), the Supreme Court held that “….no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith, in private or public, the public act done in the seat of justice….provided….not acting in malice or attempting to impair the administration of justice, they are immune…..”.
I suppose Mr Effiong will shed more light on what actually transpired between him and the CJ, when he is released from prison; whether the CJ’s conduct was simply an abuse of power and office, combined with overzealousness, and ‘eye service’ because the Governor is involved in the case. Just as all must show respect to the court, the power of a Judge to commit an individual for contempt of court, must not be exercised frivolously or arbitrarily. See the case of Balogh v St Alban’s Crown Court (Supra). What do you think, my dear colleagues?