A Cursory Analysis of Contempt and Court’s Order.
By Oladele Kehinde Emmanuel
The judiciary was established to interpret law and administer justice in Nigeria. While the executive and legislature arm of government are respectively saddled with the functions of implementation of policy and making of law for the smooth sailing of the affairs of Nigeria. Notwithstanding the evident provisions of the constitution as to the independence of judiciary and separation of power contrary is the occurrence as the order of courts are not complied with. It is on this strength that this article meticulously discusses on contempt and order of court, considering the conducts of the executive and legislative arm in treating same with unconcealed exemption and insolence.
It is a widespread knowledge that courts could under some circumstances make an order that must be obeyed by litigants in adjudication and compliance is strictly required, failure of which is known as contempt in facie curiae and ex facie curiae. Now, the position in the case of NDIC V. S.B.N PLC. (2008) 1 NWLR (PT.801) 311 is that when a party is cognizant of court order, whether valid or null, regular or irregular that he might be affected by it, such party cannot be permitted to ignore such order, alternatively, he should apply to the court that made it to set it aside or appeal against it. This therefore connotes that the order or judgment of a court of competent jurisdiction subsists until it is set aside by the court itself or by a higher court on appeal. See the case of [Babatunde v. Olatunji (2000) 2 NWLR (Pt. 646) 557 referred to.] (P. 363, para. C)  5 NWLR Duke v. Global Excellence Comm. Ltd.
In Mobil Oil (Nig.) Ltd. V. Assan (1995) 8 NWLR (Pt.412) 129, the court justifiably upheld the above position in this way;
There is a plain and unqualified obligation on the part of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. It is so even in cases where the person affected by the order believes it to be irregular or even void. So long as the order exists, it must be obeyed to the letter. Until the proper procedure to discharge the order is followed, parties must be bind by the order.
However, it was espoused in the case of NIGERIA ARMY V. MOWARIN (1992) 4 NWLR (PT. 235) 345 that the court will never allow an application in favor of a contemnor which will incidentally have the effect of legalizing the contempt or allowing the applicant to continue with the contempt. This was further judicially appreciated in the Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 at 633 referred to and restated] (P.358, para. E) Per UBAEZONU, J.C.A in his erudition at page 358, paras. E-F inter alia;
‘”Now, the position in this matter is that the Applicants are flagrantly flouting an order of court by refusing to release the Respondent. In other words, they are in contempt of an order of the court. The same contemnors have come with very unclean hands supplicating before this court for a grant of a favor that would, as it were, legalize their contempt. I would liken the Applicants to a sinner who prays to God to assist him in the commission of his sins. Just as God will not listen to such a supplication this court will not grant such a prayer.
The cited authority heralds the everlasting nature of our courts reputable for preaching against party’s customs of wallowing in the sin of contempt, as such, the contemnor would perfectly be punished for such erroneous conduct of disrespect to the court.
Having said that, it is trite and noteworthy that in establishing the offence of contempt, there must be a positive proof beyond reasonable doubt that the terms of the court injunction have been broken. In the event that there is a failure to prove this ingredient of the offence beyond reasonable doubt, the alleged contemnor will not be liable for contempt. On the flip, party cannot act in contempt of court or disregard of the rule of law where there is no longer any subsisting, valid and binding order of court. This implies that an interim order has automatically lapsed by effluxion of time and operation of law, given the fact that the order was no longer subsisting, the appellant could not be said to have acted in contempt of court or disregard of the rule of law when there was no longer any subsisting, valid and binding order of court restraining it from discharging its statutory duties.
Meanwhile, the general rule is that a contemnor cannot be heard by the court of competent jurisdiction, however, there exist limited recognized exceptions to the rule and same are provided below;
- where the party is seeking leave to appeal against the order for which he is in contempt;
- where the contemnor tends to show that because of the procedural irregularities in making the order, it ought not be sustained;
- where the order is being challenged on the ground of lack of jurisdiction; and
- where the contemnor seeks to be heard in defense of the order.
It is significant to emphasize that court order is queried or challenged together with its jurisdiction to make the same, as such, the court of law is behooved to hear such an appellant. See the case of [Ezegbit v. F.A.T.B. Ltd. (1992) 7 NWLR (Pt. 251) 89; Mobil Oil (Nig.) Ltd. V. Assan (1995) 8 NWLR (Pt. 412)
Be that as it may, a court that lacks jurisdiction over a matter cannot validly exercise any judicial power thereon. This means that, when an order is made without or with the knowledge, such an order that proceeds without jurisdictional competence of court for committal is null. See the [State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Yoye v. Olubode (1974) 1 ALL NLR (Pt.2) 118 referred to] (P.615, paras. C-D), but this position was altered and destabilized in the latter popular case of Ebhodaghe v. Okoye (2004) 18 NWLR (PT. 905) 472 referred to.] (p.610, paras. E-S) it was laid down that the general rule is for a court to determine jurisdiction first whilst it is an exceptional rule to take steps in defending or protecting the authority of the court first before determining an issue of its jurisdiction.
Predicated on the prior analyses, the standard of the Judiciary is maintainable. In Nigeria history, it has unfailingly never tolerated other arms of government to belittle, trivialize or disregard her sacred power. Therefore, the manifest alteration of the position in Nigeria is absolutely against the concept of separation of power operable in a democratic society. Hence, the court is entreated to resuscitate her prestige and dignity, specifically in effectuating the unparalleled power constitutionally charted in the entireness of section 6 of the constitution of the federal Republic of Nigeria.
Oladele Kehinde Emmanuel
20th March, 2023.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
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