T.A.A. Awosanya Vs Board Of Customs & Excise (1975)

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O. ELIAS, C.J.N. 

In Charge No. FRC/L/20/74, Belgore J., found Mr T.A.A. Awosanya, Senior Magistrate, Lagos State, guilty of criminal contempt of his court in that the accused person had disobeyed his order to stay further proceedings in a case before the accused’s court in which two persons were charged with offences of evading payment of customs duties on certain imported goods. .

The material facts may be stated briefly as follows. A criminal charge B/161/73, Board of Customs & Excise v. Alhaji Wasiu Dosunmu & anor. was filed at the Magistrate’s Court Igbosere, Lagos before Senior Magistrate Awosanya on July 3, 1973 while the defendants were remanded in custody and the matter was adjourned to July 26, 1973. The case later came up again on July 19, 1973 when it was adjourned first to September 12, 1973 and later to October 23, 1973.

On the latter date, a Senior State Counsel applied for the case to be transferred to the Federal Revenue Court on the ground that the Magistrate’s Court no longer had jurisdiction in view of the Federal Revenue Court (Amendment) Decree 1973 or, alternatively, to withdraw the charge. On November 2, 1973, Senior Magistrate Awosanya, in a considered ruling, refused the application, and then adjourned the case first to November 8, 1973 and finally to January 17, 1974 for hearing. On that date, the Senior Magistrate adjourned the hearing of the case to February 5, 1974. Meanwhile, on January 21, 1974, however, a fresh charge No. FRC/L/2C/74 which was substantially the same as the one before Senior Magistrate Awosanya was filed in the Federal Revenue Court and was then adjourned to January 23, 1974 for mention so that the accused persons could be served and a date fixed for trial.

When the two accused persons failed to appear on January 23, 1974, Bench Warrants were issued by Belgore, J., but, as the warrants could still not be executed until January 28, 1974, a State Counsel, Grade I filed a motion ex parte for leave to bring a motion for an order of prohibition and certiorari against the respondents, and also for a stay of the proceedings before the Senior Magistrate until the determination of the orders of certiorari and prohibition. The ex parte motion was granted and all parties were to be served with notice of the motion fixing the argument for February 6, 1974. On that day, when neither the two accused nor Senior Magistrate Awosanya turned up, the State Counsel informed the court that the Senior Magistrate had struck out the case on the previous day, February 5, 1974, and the bailiff tendered an affidavit of service on the Senior Magistrate on January 31, 1974. The State Counsel later, on February 13, 1974, filed an affidavit as to what happened in the Magistrate’s Court on February 5, 1974, when “the Magistrate struck the case out because according to his statement in the open court he had been served with an order and a motion of certiorari” .

Thereupon, the learned trial judge ordered that a criminal summons be issued against Senior Magistrate Awosanya to appear before the Federal Revenue Court of February 18, 1974 “to show cause why he should not be committed for contempt”.

He also instructed “a summary of the facts of the complaint should be attached to the criminal summons to be served”. On February 18, 1974, Awosanya appeared in court being represented by the Solicitor General, and a Senior State Counsel, Lagos State. The Solicitor-General asked for an adjournment to study the case, as he had just then been served with the summons.

The matter was then adjourned to February 28, 1974 but, before this date, Awosanya had filed an affidavit to which he annexed a certified true copy of the record of proceedings in the Igbosere Court up to January 17, 1974 and an uncertified true copy of the proceedings at Ikeja Court on February 5, 1974. As it was considered necessary for Mr Awosanya to file an additional affidavit in order to answer certain points, the matter was further adjourned from February 28, 1974 to March 5, 1974.

When on March 5, 1974, the Lagos State Solicitor-General decided to withdraw on the ground that the State could not represent any individual on a criminal charge, Chief Rotimi Williams appeared for Senior Magistrate Awosanya before the Federal Revenue Court. He submitted that as his client would not have a fair trial, the learned judge should not try the case; that a criminal summons should not have been issued against Awosanya in the circumstances of this case; that, if Awosanya was guilty of any contempt at all, it was a civil, and not a criminal, contempt; that, if it were held to be a criminal contempt, the Federal Revenue Court could not try it as it did not come within section 7 of the Federal Revenue Court Decree 1973; and that there must be evidence of bad faith on the Magistrate’s part for disobeying the order of the Federal Revenue Court, and his submission was that that was not established in the instant case.

The learned judge, after reviewing the evidence and the law, came to the conclusion that the Magistrate’s disobedience was willful and that it proceeded from improper motive, and so found him guilty of contempt. The present appeal has been brought against this judgment.

Various grounds of appeal were filed but, Chief Williams, learned counsel for the appellant, asked and was granted leave to argue all the grounds together. His arguments may be considered as falling under three broad submissions. The first is that the action of the appellant did not constitute a contempt of court. Secondly, if it constitutes an offence at all it is one involving only a civil contempt by the Magistrate for disobeying the order of the superior court for a stay of proceedings. The third submission is that, assuming that it is a case of criminal contempt, the appellant has not had a fair trial on the ground of procedural irregularity. Let us examine each separately.

At the time that the appellant struck out the matter of February 5, 1974, there was an order for stay of proceedings pending the hearing of the application for an order of prohibition in the Federal Revenue Court. He nevertheless made a determination striking out the case in these words:

“I have repeatedly observed that I am not particularly interested in hearing any of the Federal Revenue Cases and that my duty here is to dispense justice without any fear or favour. I am still avowedly dedicated to this course of justice.

In the circumstances I felt bound to declare closed the proceedings herein and dismiss this charge with liberty to the Board to proceed with the matter in a court of the Board’s own choice.