Franklin O. Atake V. The Attorney-general Of The Federation & Anor (1982)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

The threshold questions in this appeal are whether (a) the appellant, Senator Franklin Oritsemueyiwa Atake, was on the 2nd day of April, 1982, in contempt of the court presided over by Chief Judge of the Federal High Court (Anyaegbunam, C.J.) and (b) the procedure adopted by the learned Chief Judge in committing him to prison until he purged his contempt is erroneous in law In order to answer these questions, it is necessary to recount the facts which gave rise to what I shall refer to in this judgment simply as the “Atake contempt proceedings”. On the 25th February, 1982, at the close of arguments of counsel in an application for interlocutory injunction arising in a suit filed – in the Federal high Court 4th February, 1981 – by Senator Atake against the President of the Federal Republic of Nigeria (hereinafter referred to simply as “the President”) and the Attorney- General of the Federation of Nigeria, in which he sought, inter alia, (1) “a declaration that Section 2 of the Allocation of Revenue (Federation Account etc) Act 1981 is unconstitutional, void and of no effect having regard to Sections 149 (2) and 149(3) of the Constitution of the Federal Republic of Nigeria and also a perpetual “injunction restraining the first defendant (i.e. the President) from operating the provisions” of the said Section 2(2) “and any other provisions of the said Act”, the learned Chief Judge of the Federal high Court who heard the arguments reserved Ruling thereon for the 13th day of March, 1981. As the learned Chief Judge was about to read his Ruling on that day (i.e 13th March, 1981), Senator Atake rose from his seat and told the court that he had “a preliminary point to raise before the Ruling should be read”; although hardly an appropriate time to raise “a preliminary point” in a suit or matter in court, he was allowed to raise his point. From what followed, it turned out that the “preliminary point” was in fact an oral application for the learned Chief Judge to transfer the entire proceedings (including the matter upon which the Ruling was about to be made and on which arguments had been taken without prior objection whatsoever) before him to another judge for hearing and determination on the ground that in the opinion of the applicant he, (the Chief Judge) was unlikely to do justice in the proceedings. It is, I think, very desirable at this stage to set out – as appears from the record – the dialogue between the applicant and the learned Chief Judge (on 13th March, 1981): –

“Atake On 25/2/81 arguments were concluded in this matter [i.e. the application for interlocutory injunction aforesaid]. Ruling was adjourned to 13/3/81 [ i.e today]. On 7/3/81 1st defendant/respondent saw it fit to confer on Your Lordship the honour of OFR. I sued the President in his official capacity. The award was conferred to your Lordship in [sic] his official capacity. No party in any suit can confer honour on the adjudicating Judge. I impute no actual bias or actual prejudice to your Lordship——-the President’s character is in issue.Court: Please Mr. Atake kindly withdraw that remark I pray you.Atake: I withdraw the statement.

Court: thank you very much Senator Atake.

Atake: If there is any likelihood of bias the court is

Continues: disqualified from taking this case. What would a reasonable man say if the ruling goes against me I tell your Lordship what he would say. What do you expect After-all he has been conferred with the honour of OFR. If the Ruling is in my favour the ordinary man would say that the Judge is a super-man. He is above the run of the ordinary man. My complaint is about the timing. The timing is wrong. I ask the court to transfer this case to one of the judges of this court.—-

Court: I would read my Ruling [i.e. on the interlocutory application] which is ready. I would write a Ruling on Senator Atake’s application [i.e. the application for transfer which was really his “preliminary point”] later.

NWADIALOR: [Counsel for the President] I wish to be heard on behalf of my client. I had thought the objection [i.e. Senator Atake’s “preliminary point”] should have been in writing and served on us ——–

The objection is a——– misconception of the principle of natural justice and the mechanics of (the) National Honours Act 1964. Section 14, Section 140 (1) of the Constitution 3rd schedule of the Constitution, Part 1 Section 2. The award [i.e. of O.F. R. on the learned Chief Judge] was made on 1/10/80 [i.e 4 months prior to filing in court by Senator Atake – on 4th february, 1981 – of the action in which he challenged the validity of the Allocation of Revenue (Federation Account etc) Act 1981].

The objection is very dangerous—–”

(Square brackets together with their contents & brackets supplied by me for explanation & emphasis).

The learned Chief Judge, thereafter, read his Ruling in which he refused Senator Atake’s application for interlocutory injunction to restrain the President, his servants and/ or agents from operating (in the interim) the allocation of Revenue (Federation Accounts etc) Act 1981.

On the 26th of March, 1981, Senator Atake filed a motion on notice to the defendants for leave of the court (anyaegbunam, CJ., High Court) to appeal from the said Ruling of 13th March, 1981 and exhibited in his affidavit in support of the motion three grounds of appeal – which really, at this stage, are in law proposed grounds of appeal – meant for consideration of the court in the exercise of its discretion before granting leave; these proposed grounds of appeal if and when filed after leave has been granted become, in law, the grounds of appeal. It is, in my view, necessary to set out in full ground (1) of the three proposed grounds of appeal; this reads:-

“(1) The entire decision is a nullity in that there was ‘a real likelihood of bias’ on the part of the learned trial Judge