CONTEMPT OF COURT

CONTEMPT OF COURT

DEFINITION:

Contempt of Court is an imputation of crime arising out of a civil matter. The onus is on the applicant to prove that there is a contempt of court and that the respondent is the one who actually committed the said contempt deliberately and with guilty mind. Orija v. Akogun (2009) 10 NWLR pt 1150

‘any act which is calculated to embarrass, hinder or obstruct the court in administration of justice or which is calculated to lessen its authority or dignity and to adversely affect the confidence of the public in the courts ability to dispense justice’.  Blacks Law Dictionary, 6^th Ed.

‘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’.

- per Idigbe JSC in Atake v. A. G. FED. anor (1972) 11 SC 175

‘action or inaction amounting to an interference with or obstruction or having a tendency to interfere with or obstruct the administration or justice’. Awobokun v. Adeyemi.(1968) NMLR 289.

There are 2 types of contempt:

1.     Criminal and

2.     Civil Contempt

Criminal Contempt

These are words or acts which obstruct or tend to obstruct or interfere with the administration of justice. It is an offence upon the court.

Examples –

·        To call a judge a liar.

·        To allege that he is partial.

          Vidysagara v. The Queen 1963 ac 589.

·        Comments that scandalize the court (oral and written).

·        Insulting language, disrespectful attitude, acts of violence.

·        Private communication with a judge to influence his judgment (whether or not accompanied with a bribe). See Awobokun v. Adeyemi (supra)

Civil Contempt

This means contempt in procedure, consisting of disobedience to the judgments, orders or other process of court. It involves a private injury – in other words, it violates the rights of a person who benefits under a judgment or order, when such judgment or order is flouted.

Contempt In Facie Curie

This means contempt committed in the face of the court, in other words contempt committed in the immediate view of the court room or so near the presence of the court, which obstructs or interferes with due administration of justice or is calculated to do so.

Contempt Ex Facie Currie

This means contempt committed outside the face of the court. It consists of words (spoken or published) or acts outside the court which are intended or likely to interfere with or obstruct the fair administration of justice. See Dr. Olu Onagoruwa Fca/E/117/79/No 5/2/80

E.g.   Refusal to obey a lawful order of court such as an injunction.

Civil contempt falls under the category of contempt ex facie curiae.

See generally –

Obiekwe aniweta v. The state fsa/e/47/78 delivered on 16.8.78

Awobokun v. Adeyemi (1968) NMLR 289 at 294.

Afe babalola v. Federal electoral commission & anor. suit no: ak/ma/77 of 21.2.78 

Rule 1 (a) RPC enjoins lawyers to maintain respectful attitude towards the court, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges not being wholly free to defend themselves are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor.

Rule 3(a) also enjoins lawyers to always display a dignified and respectful attitude towards the judge presiding, not for the sake of his person, but for maintenance of respect for and confidence in the judicial office.

A breach of the duty to respect the judge may amount to contempt. However it is not every act of discourtesy that amounts to contempt. See Izuora v. R    13 WACA p. 313. It may not be possible to particularize the act that constitutes contempt. See Agbachom v. The State (1970) 1 All NLR p. 69. A fair and civil criticism made against a judge may not amount to contempt ( even if it is strongly worded). See Okoduwa v. State (1988) 3 SCNJ 110

The following acts would amount to contempt –

1)    Impeding service of court process.

2)    Neglect of duties by Sheriffs and other officers of court.

3)    Disobedience to a sub poena.

4)    Refusal of witness to answer questions.

5)    Insulting or Outrageous or Scandalous language to court.

6)    Publication in a newspaper or article containing scurrilous personal abuse of a judge, with reference to his conduct as a judge in a judicial proceeding which has terminated.

7)    Publication in the newspaper misrepresenting court proceeding.

8)              See S. 133(4) of the Criminal Code.

9)    A letter accusing a Judge of bias is contemptuous.

See Deduwa v. The State (1975) 1 ALL NLR (pt. 1) 1

Proof of Contempt

Contempt of court is a quasi-criminal offence and the standard of proof is beyond reasonable doubt. See, Agbachom v. The State (1970) 1 ALL NLR 71. See also Awobokun v. Adeyemi (supra)

Even a civil contempt such as refusal to obey a court injunction must be proved beyond reasonable doubt. See American Int. Security and Telecommunications systems(Nig) ltd v. Eugene Peterson & Anor. Suit no: FRC/L/1077 of 27.10.78

CONTEMPT PROCEEDING

For contempt in facie curiae, the High Court can deal summarily with the contemnor. The Judicial officer before whom the contempt is committed can put the contemnor in the dock (not the witness box) and ask him to show cause why he should not be punished. However, the court must exercise caution.  See Awobokun v. Adeyemi. The contemnor must be given fair hearing in accordance with the rules of natural justice. Putting the contemnor in the dock is so as not to infringe his constitutional rights that no person accused of a crime shall be compelled to give evidence. S.36 (11) CFRN 1999. The cases to be tried summarily should be such that the facts are so notorious as to be virtually incontestable.

When a contempt is not committed in the face of the court, a judge who has been personally attacked should not as far as possible hear the case. See Awobokun v. Adeyemi (supra). A court may also adopt the procedure of apprehension/arrest, charge, prosecution etc. instead of the summary trial (where the act amounts to contempt ex facie). See Boyo v. A. G. Mid-West (1971) 1 ALL NLR 342, Oku v. The State (1970) 1 ALL NLR p. 60, Maharaj v. A. G. for Trinidad and Tobago (1977) 1 ALL NLR 411

Note however that, the inherent power of the High Court to punish for contempt summarily is for the preservation of the honor of the court, not for the personal aggrandizement of the Judge. See Obiekwe Aniweta v. The State (supra), Deduwa v. Okorodudu (1975) 2 SC p. 37. However, the power must be exercised with caution. See Awobokun v. Adeyemi (supra) 

Under S. 133 C. C. and S. 155 P. C., any person who commits contempt as defined under the respective codes can be charged in a magistrate court and tried under the CPC and CPA respectively. It is enough to say that whether civil or criminal contempt, both are criminal offences that carry penal sanctions and the standard of proof required for both, is proof beyond reasonable doubt before conviction.

Committal Proceedings

By virtue of the provisions of Order 42 Rule 9(1) of the High Court of Lagos State (Civil Procedure) Rules 2012,

“(1.) The procedure in applications for attachment for contempt of Court in cases to which this Rule applies shall be the same as for applications for an order for judicial review under Order 40 so far as applicable

(2.) The Notice of Motion shall be personally served unless the Judge dispenses with such service.”

Order 40 Rule 3(1) &(2)

“(1.) No application for judicial review shall be made unless leave of the court has been obtained in accordance with this rule.

(2.) An application for leave shall be made ex-parte to the Judge and shall be supported by:

a.       a statement setting out the name and description of the Applicant, the reliefs sought and the grounds on which they are sought;

b.       an affidavit verifying the facts relied on; and

c.       a written address in support of application for leave.

For ease of reference Order 42 rule 9(2) and Order 40 Rule 3(1) &(2) High Court of Lagos stateprovides:

“(1) An application for an order of committal shall be made to the court by motion on notice supported by an affidavit, and shall state the grounds of the application.

(2) The notice of motion, affidavit and grounds shall be served personally on the person sought to be committed; but may dispense with personal service where the justice of the case so demands”. Sub-rule 2 provides for the waiver of personal

service. It dispenses with personal service without providing for the grounds upon which the court must be satisfied before it dispenses with personal service. A lot of problems are envisaged in the interpretation of this portion of the rule.

There will be nothing preventing an applicant for committal proceeding without the least effort at personal service from misinforming the court as to his inability to serve the person to be committed personally.

Even if it is true that the person to be committed cannot be served because he cannot be found, how then will the order of committal if made, be enforced? The maxim of law id lex non cogit ad impossibilia. The Supreme Court had adopted

the maxim in the case of Abubakar v. Smith &ors. where it held that it would not make an order that did not stand the chance of being enforced. In other words, the court would not allow itself to make an unenforceable order. Another important thing to note about the sub-rule is that a case may arise wherein the person to be committed is genuinely unaware of the proceedings. To allow the court to dispense with personal service in such a situation will be wroughting havoc on natural justice. The Court of Appeal has set down in admirable manner the above postulation in the famous case of Rt. Hon. (Dr.) Nnamdi Azikiwe v. FEDECO & Anor. In Re: Dr. Olu Onagoruwa when that court said:

“As the appellant had no notice of the Order, he cannot be expected to comply with it even if he wanted to. There is no doubt that the news media carried the news of the courts proceedings of that day and the appellant being a legal adviser of one of the leading newspapers in the country must have read of it. But it is unreasonable to expect him to act on reports in newspaper, or treat the said reports as a Court Order. Although, he may do so if he wished, it did not amount to disobedience of the Court order if he rescues, or neglects to do anything without being served with a properly drawn up order of the court. The omission to serve on the Appellant the court’s order is in my opinion the first flaw in the proceeding”.

The above opinion of the Court of Appeal underscores the importance of personal service in committal proceedings.

ISSUANCE OF FORM 48 AND 49

By Section 94 of the Sheriffs and Civil Process Act, the Chief Justice was given the power to make rules for the smooth administration of the Act. Acting under this section of the act, the Chief Justice made the Judgments (Enforcement) Rules (hereinafter called the Rules).

Of importance is Order 13 rules (1) and (2) which is quoted in-extenso hereunder:

“(1) When an order enforceable by committal under section 72 of the ordinance (Act) has been made, in the absence of the judgement debtor and is for he delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditors, issue a copy of the order endorsed with a notice in form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons

(2) If the judgement debtor fails to obey the order, the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order and the notice shall be served on the judgment debtor in like manner as a judgment summons”.

It is clear from the above provisions that it is mandatory for the registrar in serving the order, to endorse form 48 thereon. Moreover, in the event of the failure of the

judgement debtor to obey the order with the endorsed form 48 in sub-rule 1, the registrar is expected under sub-rule 2 to attach form 49 to the application of the judgement creditor asking that the judgement debtor be committed for contempt of court upon the application of the judgement creditor.