Ene Ene Oku v. The State (1970) SC.175/1969

Supreme Court of Nigeria – Before

IAN LEWIS – JSC
ATANDA FATAYI-WILLIAMS – JSC
GEORGE BAPTIST AYODOLA COKER – JSC

Between

ENE ENE OKU – Appellants
AND
THE STATE – Respondents

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Reported:

– (1970) All N.L.R 62

– (1970) LPELR-SC.175/1969

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GEORGE BAPTIST AYODOLA COKER – JSC (Lead Judgement):

Ene Ene Oku, a legal practitioner, has appealed to this court against his conviction by Bassey, J. (High Court, Calabar). The appellant was on the 12th June, 1969, so found guilty of contravening the provisions of Order XVI, rule 4 of the Eastern Nigeria High Court Rules, 1955 (operative in the South Eastern State), which the learned judge seems to have treated as a form of contempt of court, and sentenced to a fine of N11. The circumstances leading to the conviction and sentence of the appellant are not unusual but the complaint before us turned on the approach of the learned trial judge to the whole matter. An accused person in a criminal proceeding (Charge No. C/2C/69) pending before the court, Jerome Agabi, had apparently retained the services of the present appellant. Pursuant to this the appellant had filed in court and before the learned trial judge a motion dated the 21st April, 1969, asking the court to grant bail to Jerome Agabi pending the hearing of his case. There was some argument later as to whether the accused had retained the services of the appellant only for the purpose of getting him out on bail or for defending him in the entire proceedings in accordance with the affidavit of the appellant himself when he stated that “my services have been retained by the accused to defend himself.

In other circumstances a great deal might depend on the resolution of this argument but in view of the approach of the learned trial judge to the matter the point is not of much importance.

To continue the narrative, after some adjournments the motion was listed for the 5th June, 1969, and the appellant was present in court when the date was fixed. On the 5th June, 1969 when the case was called, however, the appellant was absent from court and the trial of the accused commenced, the accused being ready to defend and in fact defending himself. The learned trial judge on that day made an order in the following terms:
“a bench warrant to issue to Mr. Oku to explain why he should not be committed for contempt of this court.”

In time the appellant was arrested by virtue of a warrant dated the 5th June, 1969 the introductory part of which reads as follows:-

 “Complaint on oath has been made on the 5th date of June, 1969 by police, that E. E. Oku, Esquire hereinafter called the defendant, on the 5th day of June, 1969 at High Court, Calabar in the Calabar Judicial Division aforesaid, did absent himself from court without sending an explanation to the court explaining his absence, thus showing disrespect to the court.”

It seems that the learned trial judge had ordered that the appellant be produced before him on the 9th June, 1969. On that day, however, the appellant was not produced and the learned trial judge entreated the appellant’s bail and ordered that he should be rearrested on a fresh warrant and brought before him on the 11th June. The introductory part of the second warrant dated 9th June, 1969, is as follows: –

“Complaint on oath has been made on the 9th day of June, 1969 by police that E. E. Oku, Esquire hereinafter called the defendant on the 9th day of June, 1969 at High Court, Calabar in the Calabar Judicial Division aforesaid, did absent himself from court after having signed a recognizance to appear in court on 9-6-69. Thus showing disrespect to the court. And for failing to appear to conduct a case in which he had already appeared.”

On the 11th June, 1969, the appellant was produced before the judge who then proceeded to address the appellant thus:-
“Mr. E. E. Oku, you as a solicitor of the Supreme Court of Nigeria, having duly appeared to defend charge No. C/2C/69 before this court and in particular having appeared on 12-5-69 when the case was adjourned to 5-6-69 failed to appear to defend the accused without the prior permission of this court to be absent contrary to Order XVI, rule 4 of the High Court Rules, 1955 of the former Eastern Nigeria, still applicable to the South Eastern State of Nigeria. What have you to say, are you guilty or not guilty?” The appellant pleading not guilty appeared by counsel who contended that his client’s instructions were limited to the application for bail and certainly not for conducting the entire defence. The appellant’s counsel also contended that the appellant had tried but had not succeeded to contact the client since the motion for bail was filed. After the appellant (not-withstanding he was represented by counsel) had addressed the court at some length (not giving evidence be it noted) the learned trial judge endorsed his records thus: – “adjourned to 13-6-69 for judgement”. However, on the 12th June, 1969, the learned trial judge delivered a reserved judgement in which he recounted the circumstance preceding the present proceedings and grounding them including the complaint already referred to by us against the appellant.