Adeyemi Candide-johnson V. Mrs. Esther Edigin (1990)

LawGlobal-Hub Lead Judgment Report

ACHIKE, J.C.A.

On 22nd December, 1987, at the Chief Magistrate Court No.8, Kano, presided over by Her Worship, Mrs. Esther A. Edigin, Ag. Chief Magistrate, Grade 2, Mr. Adeyemi Candide-Johnson appeared in that court as counsel to the accused in the case of Commissioner of Police v. Obong Etukurem, KA/70CB/87. Consequent to what transpired at the said court, Her Worship ordered the detention of Mr. Candide-Johnson for a couple of minutes at the cell. Having obtained prior leave of the Court by Ex parte Motion, Mr. Candide-Johnson, as applicant, moved the Federal High Court Kano by Motion on Notice for redress for the breach of his fundamental rights on the grounds set out in the copy of the Statement in support of the application. The amended Statement in its paragraph 4 contained the following reliefs:

“1. An order to remove the purported second proceedings of the 22nd day of December, 1987 for the purpose of the said proceedings and the purported order of commitment (sic) and all such other orders affecting the liberty of the applicant, being quashed.

2. An order that the respondent make full apology in writing to the applicant.
3. Damages for deprivation of liberty.”

The application was supported by an affidavit and exhibits used in the motion ex parte as well as a further affidavit to which was attached a certified record of the proceedings, Exhibit ACJ “A” The application was opposed by an eighteen paragraph counter-affidavit deposed to by Her Worship, hereinafter referred to as the respondent, which was supported by yet another affidavit deposed to by one Idris Abubakar, the clerk of Court to the Chief Magistrate’s Court No.8, Kano.

After due consideration of affidavit evidence of the parties including submissions of counsel, Kolo, J., of the Federal High Court, Kano Division dismissed the application in its entirety in a Ruling handed down on 3rd May, 1988. It is against this ruling that the applicant, hereinafter referred to as appellant, has appealed to this court having filed four grounds of appeal.

Parties duly filed and exchanged briefs of argument. At the hearing before us, Mr. J. B. Majiyagbe, S.A.N., appearing with D. I. Daneji, Esq., adopted appellant’s brief and adumbrated briefly. The learned Senior Advocate first drew attention to pages 62 and 63 of the record of proceedings which were originally omitted but subsequently added as forming part of the record of proceedings. Furthermore, learned counsel drew attention to the concession made at page 38 of the record of proceedings on behalf of the respondent by her counsel. Specifically, at page 38, lines 9 to 12, counsel stated:

“I shall finally urge the court to dismiss this application in so far as it relates to grounds 4(2) & 4(3) while we concede to grounds (4(1) that that part of the record be quashed accordingly as it relates to the detention.”

Mr. A. B. Mamoud, learned Ag. Director of Civil Litigations, appearing with Tijani Yahaya, ADCL, for the respondent, adopted respondent’s brief and also made a brief further oral submission. Learned counsel stressed that there was no conviction of appellant by the respondent but rather he was detained as a result of the altercation. He further submitted that “if appellant was not insisting on apology and damages (i.e. reliefs 4(2) and 4(3) he had no objection to the matter being quashed.”

He finally referred to respondent’s brief at page 1 which, according to him, indicated the only questions for determination in this appeal.

The learned Senior Advocate in reply submitted that section 315 of the C.P.C. did not apply to the case in hand and cited Agbegende v. Ilorin Native Authority (1968) N.M.L.R. 144 and Richardson on the Annotated Notes on the Penal Code in support of his contention. Learned counsel further submitted that the respondent (Magistrate) had signed off the sitting of the day before the altercation between her and the appellant ensued – refers to page 62 of the record – and cites Prophet Malim Sheriff Kafola v. Commissioner of Police (1973) 9 – 11 S.C. 110 in support.

Mr. Mahmoud interpolated by referring to section 91 of the Kano State Magistrate’s Court Edict 1986, No.8 of 1987 as affording ample immunity to the respondent and also cites Egbe v. Adefarasin (1985) 1 N.W.L.R. (Pt.3) 549, particularly the lead judgment of Karibi-Whyte, J.S.C., wherein it is shown that there is no difference today between the immunity enjoyed by the Magistrate and a Judge of the High Court. Counsel concluded by referring to section 115 of the High Court Law of Kano State which protects Judges of the superior court as being in pari materia to section 91 of the Kano State Magistrate. Court Edict and urged us to dismiss the appeal.

Mr. Majiyagbe finally concluded by referring to pages 18 to 21 of appellant’s brief and said that it adequately answered the submission of Mr. Mahmoud, placing reliance on Ransome- Kuti v. A.G. of Federation (1985) 2 N.W.L.R. (Pt.6) 211, and accordingly urged that the appeal be allowed.

Both parties in their briefs respectively set out three and five issues for determination. With due respect to learned counsel, but in order to promote greater degree of clarity, I shall examine this appeal under four issues:

1. Whether the conduct of the appellant in the proceedings in the case before the learned trial Magistrate (the respondent) was contemptuous.
2. Whether the act or order of the respondent was protected under any law.
3. Whether having regard to the evidence before the trial Judge his findings were perverse or supportable.
4. Whether the rights enshrined under chapter IV of the 1979 Constitution were available to the appellant.

It is proposed to deal with these issues in the above order.

The first issue is whether the appellant’s conduct during the proceedings in the criminal case he was engaged as counsel to the accused was contemptuous of the respondent who presided over the said case. It is not always that the courts engage themselves in the difficult, often fruitless exercise of formulating a satisfactory definition of a subject-matter under reference. Nevertheless, it is useful to have at the back of one’s mind the nature and scope of a subject-matter called for consideration. Contempt of court may be described as any act or conduct which interferes with the course of justice and tends to bring the authority and administration of law into disrespect. The twin elements of contempt of court are, therefore, interference and disrespect. The aim of the law of contempt of court, therefore, is to protect the dignity of court from any conduct that tends to obstruct or interfere with the administration of justice. The case of Morris and Ors. v. Crown Office (1970) 2 Q.B. 114 is interestingly illustrative. A group of University of Aberystwyth Welsh undergraduates, protesting over an order of a court made against one of their leaders, stormed into well of the court while in session, shouted slogans, chanting songs, scattered pamphlets and flocked into the public gallery. They disturbed the Court in its business. They were convicted and sentenced to three months imprisonment and E50 fine each. Their appeal against their conviction and sentence was dismissed, though the sentence was varied by binding them over to be of good behaviour for twelve months. It is also useful to recall the case of Re Jordon, (1888) L.J.Q.B. 483. Here a Solicitor interrupted a Judge who was reading his judgment by shouting “That is a most unjust remark.” He was convicted, and rightly in my view, for contempt of court.

We shall now turn to the record of proceedings in the case in hand and see what transpired on that ill-fated day. The drama can be re-captured by looking at the event on 22nd December, 1987, either at pages 26 to 27 or pages 62 to 63 of the record, the later reference being slightly more comprehensive. For ease of reference, it is reproduced hereunder in full.

“IN THE MAGISTRATE’S COURT OF KANO STATE OF NIGERIA: IN THE MAGISTRATE’S COURT OF KANO JUDICIAL DIVISION: HOLDEN AT KANO

SUIT NO. KA/70C8/87

BETWEEN:

COMMISSIONER OF POLICE V. ORONG ETUKEREM

22nd-12-87 Accused present.

Inspector Ememo for prosecution.

C.R. Johnson for the accused.

Johnson – This is a motion that is brought in pursuance to section 33(1) of the Constitution and apparent inherent jurisdiction of this court to dismiss the charge and discharge the accused. It is supported by an eight paragraph affidavit and I rely on all paragraphs. See Sogekun and Akinyemi 1980 5 -7 S.C. Pg 1 at 18. Allen v. McAlpine & Sons Ltd. (1968) 2 Q.B. 229 at 259. See Street Field Committee report cost it on delays in criminal trials. See Tofi v. U.B.A. (1987) 3 Nigerian Weekly Law Reports (Pt.62) p.707. It is with respect that I submit that if the court decides that 4 years is an unreasonable time for the accused to still be standing trial then the court should dismiss the case.

Court: Case adjourned 21/1/88 for ruling.

Mrs. E.A. Edigin

Ag. Chief Magistrate

Grade 2,

22/12/87.

22/12/87: Court to Mr. Johnson: I would like to remind you that when next you make submission in courts, you make them with the utmost respect and to the court.

Mr. Johnson: The court is obliged to record everything I say.

Court: I record only what is reasonable to me as the law requires.

I do not record nonsense. It’s a bloody waste of time and please keep quiet when I am talking.

Mr. Johnson: The court should listen to me first.

Court: Please do not argue with me and stop being rude.

Mr. Johnson: We are not in a competition here.

Court: As a Judge – I sit over your cases and you should give me that respect.

Court: When did you leave the Law School?

Mr. Johnson: I will refuse to answer that question in the rudest manner.

Court: repeats the question time and time over again.

Mr. Johnson: I will not answer the question.

Court: You are being rude and committing contempt and you know it and I have no alternative. If you intend to disgrace the court as a lawyer I will have no alternative than to hold you for contempt. I hereby order that you be detained.

After ten minutes. Miss Olaniyan and 2 other lawyers on behalf of Mr. Johnson -we are very sorry for Mr. Johnson’s behaviour.

Court: to Mr. Johnson – It is not my desire to put people in the cell anyhow but when you push me to the wall by being very disrespectful, I have no alternative. All I can tell you now is that your behaviour in the court amounted to utmost disrespect but I will temper justice with mercy and warn that no matter any court in which you appear, you are bound to show first and foremost absolute respect. You are a lawyer and your first duty is to the court. Please behave and be respectful next time. You are free to go.

Mrs. E. A. Edigin,

Ag. Chief Magistrate

Grade 2,

Kano.

22/12/87.”

The first half of page 62 will hereafter be simply referred to as Part 1 whilst the remaining part of that page to the end of page 63 may be referred to as Part 2. First to Part 1. This Part is characterised by two glaring distinct observations of features: first the respectful counsel’s submission for dismissal of the case against the accused for want of diligent prosecution, and second, the adjournment of the case for ruling to 21st January, 1988 with the signing off, dated 22nd December, 1987 by Mrs. E.A. Edigin, the Ag. Chief Magistrate Grade 2. In my humble view, the respondent (the Ag. Chief Magistrate) had on the said day, by the prescribed adjectival law completely disposed of the case in which the appellant was appearing as counsel. Reading the content of Part 1 very closely and dispassionately, I am of the considered view that nothing could be said of any act of disrespect on the part of the appellant, that he directly or indirectly interfered with or tended to interfere with the courts business in the case in which he appeared as counsel relative to the time the respondent signed off the record. Indeed the affidavit evidence placed before the lower court did not establish anything to the contrary. On behalf of the appellant it was submitted that his conduct was lawful at all material times and this of course encompasses the period of Part 1. No impute was made on behalf of the respondent relative to the question of contempt during Part 1 stage because the submission of learned respondent’s counsel in the written brief (see pages 3 and 4) was focused on the event of appellant’s conduct in refusal to answer questions put to him by the respondent, a matter to which I shall return presently. Turning to the respondent, the record of proceedings, earlier reproduced, did not contain any exhibition of misconduct during the course of appellant’s submission in respect of the case he was appearing as counsel. But very strangely and in contradiction to the official record of proceedings prepared by her, the respondent specifically deposed in paragraph 16 of the counter-affidavit as follows:-

“The applicant was not put on trial for his attitude towards the court neither was he convicted for such an attitude. The applicant was detained to enable the court attend to other cases which could not go on because of the noises being made by the applicant and also his attitude of belittling the court.”

The stance of the respondent as well as the account contained in the record of proceedings was seriously confounded by the counter-affidavit of Idris Abubakar, clerk of court to the respondent. In paragraph 5 he deposed.

“That in the course of moving the motion the lawyer (i.e. the appellant) made (i.e. the respondent) to caution him up to three times.

With practically nothing to commend the contradictory affidavit evidence of the respondent and that of Idris Abubakar which was offered in support of the respondent’s, and guided by the record of proceedings, I am of the firm view that there was nothing to show any contemptuous or disrespectful interference by the appellant in the course of the proceedings of the court throughout the stage he was moving the motion.

Of course, this could have been the end of the respondent’s consideration of the case, Suit No. KA/70/C8/87 on 22nd December, 1987, having, as earlier noted, signed off and dated her record. But this was not to be Guided by the record, it is clear that the respondent suo motu confronted the appellant to some dialogue wherein she pontificated to him regarding his future submissions in courts. That pontification heralded the beginning of Part 2 of the drama, and had earlier been reproduced in this judgment: it starts from immediately after the first signing off by the respondent at page 62 to the second signing off at page 63. In my humble view, the event recorded above seems to me to be extra-judicial in the sense that it cannot be said, in all honesty, that it either formed part of the proceedings of the application made by the appellant on behalf of his client, the accused or part of a new matter in which appellant had any interest because the Ruling in connection with appellant’s client had, as earlier stated, been adjourned to 22nd January, 1988. Some glaring observations about the content of Part 2 are that they are disjoined and rather tendentious. Its disjointed nature coupled with the affidavit evidence of the respondent, which was disturbingly in conflict with that of Idris Abubakar and the record of proceedings, leaves one with the profound feeling that it was a make-up – a mere after thought proffered to fill up the missing portion of Part I in order to justify the act of the respondent. Unfortunately, this anomalous feature of the record did not attract the attention of the lower court which was deeply enmeshed in the scope and content of judicial immunity available to the respondent both under the statute and the case law. I think that Part 2 – a makeshift recordation – should be safely ignored, moreso as it was completely extraneous to the matter the learned respondent was invited to consider in the application moved by the appellant.

Even if one does not ignore Part 2 as a belated supplementation of part 1, one is still left with the fact that the incident re-captured by the content of Part 2 remained extra-judicial. It is extra-judicial because the respondent having adjourned and signed off the matter for which the appellant appeared as counsel, the judicial proceedings in relation to that case became terminated. Now, suppose the respondent at that stage tried to exchange pleasantries with the appellant – it being only three days to Christmas Day and the appellant, not being interested, ungraciously walked out on the respondent. Again, suppose appellant’s assignment in court having terminated in such circumstances described above, and as he was about to leave the court the respondent requested him to take a letter and deliver same to X – a deplorable sad, but common experience in our lower and higher courts but the appellant was uncompromisingly unobliging. Could either of such situations be said to have occurred in the discharge of the respondent’s judicial duty? Secondly, could the respondent in either case regard the situation as contemptuous and proceed to deal with the appellant for his recalcitrancy? My answer to each question is unhesitantly in the negative. This is because each circumstance was first, extra-judicial and second, not contemptuous. If the situation was extra-judicial then its legal implications may now be considered. In my humble view, it was the respondent that triggered off the vituperative altercation with the appellant when she said, inter alia;

“I do not record nonsense. It’s a bloody waste of time and please keep quiet when I am talking.” (emphasis supplied).

Apparently, when tempers rose rather meteorically, the respondent, exacerbated by the situation, unleashed this incisive question:

“When did you leave the law school?

The response, going by the record, was equally unrelenting:

“I will refuse to answer that question in the rudest manner.”

It was the refusal to answer this question, according to the record, that broke the camel’s back, and led to the detention of the appellant for contempt of court. It was unfortunate, to say the least, for the respondent, according to the records, to have taken leave of her exalted bench, invited counsel to extra-judicial dialogue and thereafter descended into the arena of vituperative conflict with him. Is the situation narrated above reasonably defensible or covered by judicial immunity?

It is perhaps useful to bear in mind that the alleged contempt was criminal in nature. And. as earlier noted, it was appellant’s refusal to answer the question as to the time that he left the Nigerian Law School that imperiled his liberty as a citizen. Although in paragraph 16 of respondent’s counter-affidavit (already reproduced in this judgment) the respondent denied that the appellant was on trial, one would observe that the right to keep silent even when arraigned for a criminal offence remains inviolate. The citizen’s right to remain silent has for long been firmly recognised and established under the common law. In Rice v. Connolly (1966) 2 All E.R. 649 at p.652, the Lord Chief Justice opined:

“The whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority and refuse to accompany those in authority to any particular place short of course of arrest.”

Today, this right has been expressly preserved under Section 33(11) of the Constitution of the Federal Republic of Nigeria 1979. If, therefore, the appellant was not on trial and an irrelevant question was put to him, even by a judicial authority, it would seem to me that the necessity or obligation to answer such question cannot arise. It is trite that relevancy of facts is of paramount importance in our adjectival law. That paramountcy has been given conspicuous expression in Part II, Sections 3, 6 to 13 and 15 to 18 of the Evidence Act.

A court has a duty to disallow a question which is not relevant to the proceedings; but a question which is relevant can freely be put to a witness and must be answered, although the weight to be attached to the answer is an entirely different matter. Thus relevance and admissibility are closely knit together while the question of weight appertains to the province of evaluation and should, as always, be kept in separate compartment. Now it, may well be asked, was the question when the appellant left the Nigerian Law School relevant and necessary to the proper determination of the motion earlier moved by the appellant and adjourned to a date for ruling? The answer must obviously be in the negative.

It would be recalled that the learned Judge of the lower court had in the course of his judgment said that the test whether an act is contemptuous or not is subjective and not objective because, he argued, “that the fact that of the Judge will treat such an issue (that is, of contempt) differently from another may not necessarily mean that one or the other is wrong in treating the issue the way he did.” One would note that the court’s power to punish for contempt is as old as the courts themselves. In the celebrated case of Atake v. The President of the Federal Republic of Nigeria (1982) 11 S.C. 153, the Supreme Court, per Idigbe, J.S.C., had decided that the power of the court to punish for contempt is inherent and indeed preserved under Sections 6 and 36(3)(a) of the 1979 Constitution. It is undoubtedly a sine qua non to the smooth and proper administration of justice and ought to be preserved. It belongs to the realm of discretionary powers of the court. But the courts have recognised its uniqueness and have cautioned that the power to punish for contempt should be invoked sparingly. Lord Justice Stephenson had in Balogh v. St. Albans Crown Courts Q.B.D. 73 warned that:

“It (the power) must never be invoked unless the ends of justice demand such drastic means. It appears to be rough justice, it is contrary to natural justice, and it can only be justified if nothing else will do…”

Clearly, it seems to me that the discretionary power of the court to punish for contempt is reviewable. Any reviewing authority is undoubtedly invited to make an objective assessment of a matter under consideration. To, therefore, hold as the lower court did, that the test regarding the power of the court to punish for contempt is subjective, is with respect, unacceptable.

From the foregoing, I am unable to hold that the extra-judicial vituperative exchanges between the appellant and the respondent in the peculiar circumstances of this case amounted to contempt of court. On the contrary I think that the invocation of the power of contempt in the instant case bordered on abuse of judicial authority. It is clearly improper and will expose the administration of justice to ridicule if a magistrate or a presiding officer of an inferior court were invested with such extraordinary powers to provoke unnecessary extra-judicial verbal exchanges with counsel or a member of the public and yet invoke against him the lethal and drastic power to punish for contempt. Condemning such untrammeled abuse of judicial authority in Ikonne v. CO.P. & Justice Nna Nna Nwachukwu (1986) 4 N.W.L.R. (Part 36) 473, at 495 Aniagolu, J.S.C., had this to say:

“It is unthinkable that a Judge of the High Court to whom the law looks up for the protection of the fundamental rights of the people should be the one to trample on those rights.”

In the result I resolve Issue No.1 in favour of the appellant.

The second Issue focuses on the scope of immunity enjoyed by the inferior court, that is, the respondent, having regard to the detention order imposed on the appellant. The order by the respondent for the detention and actual detention of the appellant are facts agreed upon by both sides. It was further conceded by the respondent in paragraph 16 of her counter-affidavit, as earlier noted, that the appellant was not tried nor was he convicted but was detained in order to stop the noise from the latter. It has been strongly submitted on behalf of the appellant that the act or order of the respondent was not covered by any immunity prescribed under the law. Furthermore, it was submitted that the authority of Egbe v. Adefarasin (1985) 1 N.W.L.R. (Pt.3) 549, heavily relied on by the lower court, was inapplicable or distinguishable from the circumstances of the present case. First, the ratio in Egbe’s case is limited to the immunity of Judges of superior courts of record whereas the case in hand relates to a magistrate court, an inferior court of record. Second, Section 88(1) of the Lagos State High Court Law which fell for determination in Egbe’s case, dealing with immunity for “judicial act”, and construed in the light of the common law rules on the question of contempt, tended to reject the discrimination between the immunity of inferior and superior courts. The sameness of immunity of both inferior and superior courts, relying on Egbe’s case, was urged by learned counsel for the respondent as the correct state of the law today in Kano State, and, indeed, throughout Nigeria. Learned counsel also submitted that Section 88(1) of Lagos State High Court Law (relied on in Egbe’s case) was similar to the provisions of Section 91(1) of the Kano State Magistrates Court Edict 1987 and it gave full immunity to inferior courts and accordingly urged that the detention order made by the respondent was immune.

It is necessary to have a closer look at both Section 88(1) of the Lagos State High Court Law and Section 91 of the Kano State Magistrate Court Edict 1987. First Section 88(1). It provides that

“No Judge shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do or order to be done the act in question.”

Section 91(1) on the other hand states that:

“No magistrate or justice of the peace shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not the act was within the limits of his jurisdiction, provided that he, at that time and in good faith, believed himself to have jurisdiction to do or order to be done the act in question.”

I am in full agreement with the submission of respondent’s counsel that the provisions of Sections 88(1) and 91(1) are identical and virtually word for word, save that while the former relates to Judges of the High Court the latter provided for immunity of presiding officers of the inferior courts. The effect is far-reaching because both provisions have shown that the common law distinction regarding the immunity between judicial acts of superior and inferior courts is no longer tenable. It seems quite clear that in order to sustain the immunity of a Judge or a magistrate, under either of the two statutory provisions, the offending act must be shown to have been done in good faith. The complaint in the instant case is not whether or not the respondent acted within the limits of his jurisdiction as much as whether or not the act of the respondent was done in the discharge of his judicial duty. It would be recalled that I had already held that the act of the respondent was extra-judicial. It seems patently clear that the respondent, with respect, was using the sledge-hammer of contempt as a subterfuge to visit the appellant for his style of advocacy which was unacceptable to her. This lucidly demonstrates the bad faith with which the respondent reacted to the conduct of the appellant in the adjourned case where the latter appeared as counsel to the accused. In that premise, it is my considered view that the extra-judicial act of the respondent, which was not done in good faith, is legally indefensible and cannot be protected under Section 91(1).

The entire circumstances and facts of Egbe’s case except in so far as that case considered the issue of judicial immunity, were different from those of the present case. Similarly, the authorities of Tayo Odusete & anor. v. Senior Magistrate Ayenibiowo (1985) 6 N.C.L.R. 778 and Ransome-Kuti & Ors. v. A.G. of Federation & Ors. (1985) 2 N.W.L.R. (Pt.6) 211- the latter dealing with state immunity rather than judicial immunity – are also different and unhelpful.

Accordingly, I would also turn in an answer in the negative with regard to Issue No.2.

The complaint raised under the third issue is that the learned trial Judge failed to properly evaluate the evidence placed before him. The evidence before the trial Judge was primarily affidavit evidence to which were attached certain annexures. I had earlier considered the record of proceedings credited to the respondent in two parts. I had also shown and would reiterate, with all apologies for being repetitive, that the affidavit evidence of the respondent, the record of proceedings and the sworn statement of one Idris Abubakar, clerk of court to the respondent were radically in conflict particularly with regard to the alleged rude remarks of the appellant that sparked off the detention of the latter (see part 2 of he record, already reproduced in this judgment, paragraph 10, and 14 of respondent’s affidavit and paragraphs 5, 6, 7, 8, 9, 10 and 11 of Idris Abubakar’s affidavit). Nowhere in his ruling could one discern an attempt to resolve these crucial areas of conflict. The learned trial Judge, from the affidavit evidence before him, concluded that the respondent diligently recorded all appellant’s submissions and that “the applicant’s (that is, appellant’s) behaviour bordered on youthful exuberance and unwarranted …. I am inclined to believe the respondent in the light of the applicant’s failure to categorise a particular submission not recorded by the respondent.” With due respect to the learned trial Judge, while I can easily see the recordation of authorities cited by the appellant, I am however unable to discover the submission or argument for which the legal authorities were cited in support. This again cast aspersion on the quality of the record kept by the respondent as complained by the appellants. The need to keep proper record of proceedings cannot be over emphasised. Indeed, Section 43(1)(a) and (b) of Kano State Magistrates’ court Edict 1986 No.8 of 1987 enjoins the court to record in writing any question of law or equity raised at the hearing and any legal submission made together with any authorities cited in support of the same. The Supreme Court in Otapo v. Sunmonu (1987) 2 N.W.L.R. (Part 58) 587, per Belgore, J.S.C., at p.624, has stressed the importance of proper recording of proceedings:

“It is in the interest of justice that all that is said or raised in court during hearing be taken down in writing that is, be properly recorded. When this is not done and it is through the affidavit of parties that the true records could be known, questions will usually be asked why the court adopted such a procedure.”

Finally, by Rule 3 of the Rules of Professional Conduct of the Legal Profession made by the General Council of the Nigerian Bar in 1967 (vide Government Notice No. 1977 Official Gazette no. 107 Vol. 54 of December 14, 1967) a legal practitioner should not only courageously prosecute his client’s case but

“…should vigorously present all proper arguments against any ruling he deems erroneous and should see to it that a complete and accurate case record is made. In this regard he should not be deterred by any fear of judicial displeasure or even punishment.”

If, despite the persistent insistence by the appellant that his submissions be properly recorded and this was not in fact done, as the record clearly shows, then with respect, the learned trial Judge’s holding and castigation that the appellant’s “behaviour bordered on youthful exuberance and unwarranted” to say the least, were unfortunate. The findings by the lower court, in this regard, were unquestionably not borne out by the affidavit evidence before the court, they were perverse.

The learned trial Judge in making his findings and conclusions failed to advert to the principle so ably enunciated in Mogaji v. Odofin (1978) 4 S.C. 91 and revised in other modern celebrated decisions such as Woluchem v. Gudi (1981) 5 S.C. 291, Ebba v. Ogodo (1984) 4 S.C. 84 and Jude Ezeoke v. Moses Nwagbo (1988) 1 N.W.L.R. (Pt.72) 616 at 627. Had his Lordship properly adverted to and evaluated the evidence before him he would have resolved the material issues in controversy in favour of the appellant.

The result is that I again resolve Issue No.3 in appellant’s favour. The fourth and last issue in this appeal is whether the rights enshrined under Chapter IV of the 1979 Constitution are available to the appellant. We have in the course of this judgment established that the conduct of the appellant was not contemptuous and yet without trial or conviction and without powers – statutory or otherwise – the respondent unjustifiably caused the detention of the appellant under circumstances which were extrajudicial. The contention of the appellant in relation to the first relief sought for the removal from the High Court for quashing the second purported proceedings of the 22nd December, 1987 and the order of committal and detention of the appellant has been satisfactorily made out, all the issues canvassed in the appeal under the four grounds of appeal having been resolved in appellant’s favour.

In his second and third reliefs the appellant respectively sought an order of public and written apology from the respondent and damages for deprivation of liberty. I shall deal with the two reliefs in the reverse order that is, starting with claim for damages. In the instant case, it was the appellant’s right to freedom of movement that was infringed, contrary to the provisions of section 38(1) of the 1979 Constitution. In his application for redress the appellant chose a procedure expressly provided under section 42 of the 1979 Constitution. This peculiar feature of the instant case makes it demonstrably distinguishable from the decision of Ransome-Kuti v. A.G. of Federation & Ors. (1985) 2 N.W.L.R. (Part 6) 211 which was a case founded on tort and decided against the plaintiff in that case on the ground of state immunity that no legal action could be taken against the state in its own court for the tortuous acts of its servants, rather its servants were to be personally liable. There is nothing under the provisions of Chapter IV of the 1979 Constitution that precludes a claim of monetary compensation to an applicant such as the appellant herein for violation of his fundamental right. Unless where special damages are claimed, which is not the position in the case in hand, the award is usually one in general damages.

What should be the proper approach to the award of damages in the instant case? There appears to be some measure of consensus that the appellant was detained in the cell for about 10 minutes. Be it noted that this was neither in the usual Police cell at a Police Station nor was the appellant detained at the regular Federal prisons. I also bear in mind the candour of Mr. J .B. Majiyagbe, the learned Senior Advocate for the appellant that his client was more enthusiastic on quashing the vexed proceedings and to a lesser degree the apology, and least of all the question of damages. This is perfectly understandable because, as may be gathered from the record of proceedings and the briefs of the parties, the appellant is a legal practitioner in the legal firm of “J. B. Majiyagbe & Co.” The reputation of the appellant and that of his firm which is headed by a Senior Advocate of Nigeria had been under fire. It is that reputation that calls for protection. This cannot be achieved, in my humble view, by compensatory damages, not even aggravated or exemplary damages. Taking all these into consideration, I think the ends of justice in this case would be met if the court declines to award damages.

The second relief seeks an order for a written apology. An apology in the real sense of the word is a subsidiary act, whether verbally or in writing, done in mitigation of monetary compensation. Having gone so far to decline making an award of damages I would also, in the circumstances of this case, refuse the subsidiary relief for apology.

In the result, this appeal succeeds; the same is allowed. The ruling of the learned trial Judge is hereby set side. I enter judgment in favour of the appellant and hereby remove and quash the second purported proceedings of the 22nd December, 1987 and the order of committal and detention of the appellant.

I assess and fix costs at N350 in favour of the appellant.

Other Citations: (1990)LCN/0101(CA)