Committal Of Barr. Inibehe Effiong To Prison For Contempt Of Court: Does A Mere Discourteous And Perceived Insolent Conduct By Counsel Before Court Amount To Contempt Of Court?
By Manfred Ekpe, Esq.
On July 27, 2022, His Lordship the chief judge of Akwa Ibom State, Justice Elizabeth Fabian Obot cited a fiery Nigerian human rights lawyer, Barrister Inibehe Effiong for contempt of court and committed him to 30 days imprisonment. A person cited for contempt of court is known as contemnor.
A brief fact of the matter is that Governor Udom Emmanuel of Akwa Ibom State and Senator Effiong Bob had sued one Leo Ekpenyong to court for defamation of their character. Barrister Inibehe Effiong appeared for the Defendant. There has always been reported altercations between the defense counsel and the court (the presiding chief judge) during every proceeding where His Lordship felt insulted and belittled by defense counsel, and had been threatening to jail him for contempt of court. On 27/7/2022, His Lordship had invited two armed policemen to court. Upon sitting, his lordship reportedly ordered all the journalists out of court and seized their recording devices. Learned defense counsel became apprehensive especially with armed policemen inside the courtroom against court practice and journalists out.
Upon the resumed altercation between the court and defense counsel, where the defense counsel reminded His Lordship of a pending application filed since June 26, 2022, asking him to recuse (excuse) himself from hearing the suit for bias or likelihood of bias, and an oral application for leave of court for an order that the armed policemen vacate the courtroom and wait outside, His Lordship reportedly refused to judicially make pronouncements on the said pending applications, but summarily made a Committal Order committing the Learned defense counsel to prison for contempt of court. His Lordship the chief judge clearly felt insulted by defense counsel and apparently acted on previous and accumulated resentment to so act.
This exposition looks at the line between insulting the judge, and contempt of court. Does insulting the judge amount to contempt of court in our legal system, assuming without conceding that Inibehe Effiong Esq insulted His Lordship ?
CONTEMPT OF COURT; DEFINITION.
Contempt of court is a conduct that prevents the court from administering justice. Contempt in facie curiae is the contempt committed right inside the court room or premises at the time court is sitting, and to the sight and or hearing of the judge. Contempt may be committed by laypeople or a lawyer especially in course of judicial proceedings. Therefore, a contemptuous act by counsel before court is only such conduct that interferes or interrupts the administration of justice, not discourteous arguments with the judge that does not interfere with the cause of justice. See Oku v. State (1970) LPELR-2525(SC) per Coker JSC.
WHAT CONDUCT OF A LAWYER APPEARING BEFORE COURT WOULD AMOUNT TO CONTEMPT?
Since the Committal of Inibehe Effiong Esq on 27/7/2022, several opinions and conjectures have flown in the news space that counsel insulted His Lordship the Chief Judge of Akwa Ibom State in course of legal proceedings, which is claimed to be contemptuous of court. Assuming without conceding that learned counsel insulted the court as alleged, does mere uttering of insulting words at the court constitute contempt of court known to our legal system?
In the case of Joseph Izuora v. The Queen (1953) AC 327 PC, Lord Tucker of the Privy Council observed as follows: “ it is not every act of discourtesy to the court by counsel that amounts to contempt.” In the recent case of INEC & A OR V. OGUEBOGE & ORS (2017)71 NSCQR 187, the Supreme Court of Nigeria whilst considering which words and actions used in the face of the court in course of legal proceedings constitutes contempt, held, inter alia thus:
“for words or actions used in the face of the court, or in course of legal proceedings, to be contemptuous, they must be such that interfere with the cause of justice.”
In Gani Fawehinmi v State, the court held that strongly worded criticism of the court or judge would not be contempt provided the criticism is fair, temperate and made in Good faith.
Standing on the above case law authorities, I venture to say that a lawyer arguing or disagreeing with the magistrate or judge disrespectfully and in discourteous manner, but in a way that does not interfere with, or interrupt the delivery of justice, cannot constitute contempt of court.
As in the case at hand, it is trite in the circumstances of this case, that counsel making an application for the recusal of the presiding judge, which is a constitutional demand in fair trial with foundation in section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (Which shall hereinafter be referred to as the CFRN) and under the Sherriff and Civil Process Act and rules of court made thereunder, could not have, and did not obstruct the administration of justice by the court and can therefore not constitute contempt, nonetheless the fact that counsel may have use very annoying language in the said application in accusing the presiding judge of actual bias and or likelihood of bias and strong words in disagreeing with the judge in cause of court proceeding.
Similarly, counsel making an observation such as seeking leave of court for an order that armed police officers vacate the court room in compliance with court practice, cannot constitute obstruction of justice and cannot constitute contempt in facie curiae or at all.
The reasoning of this writer is that discourteous and insolent conduct toward the judge in course of court proceedings is a matter of professional ethics which may constitute professional misconduct under the Legal Practitioners Act, but does not amount to contempt of court, as held in a plethora of case law authorities. See INEC & ANOR V. OGUEBOGE & ORS, Joseph Izuora v. The Queen, and Fawehinmi supra. Hence counsel who insults the judge in course of legal proceedings, in my view, ought to be referred to the Nigerian Bar Association (hereinafter, NBA) for disciplinary measures, not the judge sentencing him to prison for contempt. This would amount to judicial rascality and abuse of judicial power. In Inec supra, the Supreme Court said inter alia that the inherent power to cite counsel for contempt must be used sparingly, and in very serious matters. This must not be on circumstances of personal quarrel between the judge and counsel in course of legal proceedings, but must be exclusively in circumstances which interferes with court power and authority to administer justice.
In the case of Adeyemi Candid-Johnson v. Mrs. Esther Edigi (2018) LPELR 45148 (CA) , Counsel had refused to answer the question put to him by the court during alternation between him and the court. Counsel had said that he will refuse answering the question. The presiding chief magistrate after altercation had angrily asked counsel when he was called to Bar apparently to assess his age in practice such as to have the audacity to challenge him in his court. Upon refusing to answer the question, the Learned trial chief magistrate considered counsel rude and discourteous, and cited him for contempt. The court of appeal found that tempers had arose between the respondent presiding chief magistrate and the appellant counsel, where His Worship the chief magistrate cited counsel for contempt. The court of appeal frowned at such abuse of judicial power. And held that annoying the judge in course of legal proceedings is not contemptuous of court.
This writer is of a firm position that a line must be drawn between conduct that obstructs the cause of justice, and personal grievances of the judge against counsel in the manner he is conducting his case. For instance, if the court puts a question to a litigant in course of investigating the truth of the issues before court, and counsel advices his client, the litigant, not to answer the question with the intent of preventing the court from finding out the truth, this, in my view, would amount to contempt because such conduct is capable of obstructing the administration of justice. On the other hand, disagreement with the presiding judge on personal grouse of counsel in the manner the judge is perceived to handle the proceedings, with respect, does not amount to contempt, but may amount to misconduct and should be treated as such. Even when a conduct constitutes contempt, laid down procedure must be strictly followed in conducting the contempt proceeding.
EFFECT OF BREACH OF RULES OF PROCEDURE IN CONTEMPT PROCEEDING.
Rules of procedure, in a layman’s definition, is the way and manner in which court proceedings are conducted, which in Akwa Ibom State, must be in compliance with procedural laws of Akwa Ibom State such as the Administration of Criminal Justice Law 2022, Akwa Ibom State Civil Procedure Rules 2019 et cetera.
It is fundamental principle of law that any breach of procedure in the conduct of contempt proceeding renders the entire proceedings null and void. See Dikibo v Ibuluya, where the court held that, since contempt proceeding touches on a person’s liberty and freedom, any breach in strict compliance with procedure, vitiates the proceedings and renders same a nullity. In Onowu v Nwapa and ORS (CA/WO/104/2019), Ita Mbaba JCA citing with approval Tobi JCA (as he then was), in Akpan v. Akpan (1996)7 NWLR (462)620 at 626, observed thus, “since contempt proceeding affects the liberty of the individual, the law expects strict compliance with the procedural rules. Therefore, where there is the slightest deviation or non-noncompliance with the rules, a court of law must exercise its discretion in favour of the contemnor. This is because the law cannot afford to temper with the liberty of the individual.”
Where the contemptuous act happened ex facie curiae or outside court presence, the court must issue arrest warrant or criminal summons as the case may be, against the contemnor to be brought before court on a specified date to show cause why he should not be committed to prison for contempt of court. On August 1st 2018, Justice Stephen Pam of Federal High Court, Abuja Division, issued an arrest warrant against the chairman of the Independent National Electoral Commission, Prof. Mahmoud Yakubu in Suit No. FHC/ABJ/CS/854/2015, to be arrested and brought before him on a latter date to show cause why he should not be committed to prison for contempt of court. This compliance with the rules of procedure afforded the alleged contemnor the right of fair hearing as envisaged under section 36 CFRN.
However, where the alleged contempt is in facie curiae or happened right before the judge during judicial proceeding, the judge has the inherent power to cite the alleged contemnor summarily and sentence him to prison for contempt after a fair trial. The universal law principle of Audi Alteram Partem must be strictly observed in strict compliance with the fair hearing principle in Chapter IV of the CFRN, to the effect that the alleged contemnor must first be allowed adequate time and facility to defend himself as encapsulated under the fundamental human rights provisions in section 36(1) and (6)(a)(b)and (c) of the CFRN. This is soul of fair hearing and an inalienable fundamental human right. Inalienable fundamental human rights means those fundamental human rights that can never be deprived a person by the mere fact that he/she was born as human being.
The said section 36(1) of the CFRN provides that in the determination of any question before the court of law, every person must be afforded fair hearing before an impartial judge. Subsection (6) (a) provides that a person accused of an offense shall be informed in the language he understands, of the nature of offense he is alleged to have committed. In subsection (6)(b) thereof, the constitution says that the accused person must be given adequate time and facility to prepare his defense. In subsection (6)(c) thereof, it is provided that an accused person must be allowed to defend himself personally or by a lawyer of his choice. The totality of these cited constitutional provisions forms the basis of fair hearing.
In the case of Inibehe Effiong, Esq in view, His Lordship the chief judge did not inform him of the act that constituted contempt which he was alleged to have committed. Neither was he afforded any opportunity to say a word in defense of himself, either by himself or a lawyer of his choice. Counsel was not afforded adequate time or time at all, and facility to prepare his defense. He was only slammed with a 30 days sentence without any charges prepared by court, not notified of the charges against him, and no semblance of trial but sentencing outright!
It is my submission that since the Contempt that learned counsel may have been accused of committing was before court, which could be tried summarily, the court ought to have afforded him adequate time and facility in the court library to prepare his defense under section 36(6) (b) of the CFRN, except he waived that right. However, it is appears His Lordship’s complaint against learned counsel’s contemptuous act also arises from a number of accumulated incidents that annoyed His Lordship, including but not limited to learned counsel’s ex facie curiae of addressing the press on the conduct of the proceedings, which in any case is not Contemptuous of court since those press briefings do not address the merit of the matter being sub judice. If so then His Lordship ought to have issued warrant of arrest in the prescribed forms, as this writer observed on Heritage Radio 104.9FM, Eket on 28/7/2022. Having not done so, the entire Contempt proceeding is a nullity for breach of procedure, as held in a plethora of judicial authorities.
In outlining the proper procedure of proceeding in contempt in facie curiae(before the judge) , Ita Mbaba JCA in Onawu v Nwapa supra, noted thus “… where it is contempt committed in the immediate view and presence of the court…such as to obstruct or interrupt the due and orderly course of proceedings… it is dealt with by court summarily. The offending party will be told to go into the dock and a charge would be prepared by the court, and the offense of the offending party will be specifically and distinctively stated to him, and he would be asked to show cause from the dock why he should not be punished for contempt.” (Bolden words, mine).
But Inibehe Effiong Esq, was never put through any of the due process of contempt proceeding as highlighted above. His committal to prison is therefore unconstitutional, ultra vires the powers of his lordship, null and void ab initio. I also fail to see how learned counsel’s conducts before court in refusing to answer the traditional “much obliged,” and “as court pleases,” even though doing so is at the detriment of his client and administration of justice, would amount to contempt of court, even if said in a manner of discourtesy to court.
Before conclusion I must stress that a lawyer has the right to be robed, remain at the Bar (where lawyers sit in court) and conduct his own defense in criminal trial without being put in the dock.
The false imprisonment of Barr. Inibehe Effiong is an actionable wrong that touches inter alia, on his constitutionally guaranteed right of liberty and dignity where the equitable locution Ubi Jus Ibi Remedium comes in his aid. His Lordship the chief judge of Akwa Ibom State, Chief Justice Ekaette Fabian Obot, is the exalted lady personification justititia, inured with the trait of the blindfolded goddess, omniscient, untilted, and insensitive to parties and irascible behavior from the minister in temple of justice of which he is the goddess justitia omnimus that answers prayers in iudex non calculat.
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