Godwin Mogbeyi Boyo v. The Attorney General of Mid-West State (1971)

Godwin Mogbeyi Boyo v. The Attorney General of Mid-West State (1971) SC.53/1970

Supreme Court of Nigeria – Before

ADEMOLA ADETOKUNBO – JSC
GEORGE BAPTIST AYODOLA COKER – JSC
CHARLES OLUSOJI MADARIKAN – JSC
UDO UDOMA – JSC
GEORGE SODEINDE SOWEMIMO – JSC

Parties

Godwin Mogbeyi Boyo – Appellants
AND
The Attorney General of Mid-West State – Respondents

Reported

– (1971) All N.L.R 343

– (1971) LPELR-SC.53/1970


ADEMOLA ADETOKUNBO – JSC [Lead Judgment]

This appeal arose out of a case of contempt of court taken summarily suo moto by Atake J. of the High Court of the mid-western state. The contemptor Mr. Boyo is a legal practitioner residing in Benin city was concerned in a case before the learned judge. It would appear that a considerable amount of money was involved in the case and on the 17th March, 1969 in appeal no. S.C. 21/69 the Supreme Court directed that a sum of 27,416Pounds.13s be paid out to Mr. Boyo’s clients (the Ugborodo people) and that the balance of 13,708Pounds.6s do remain in the High Court, Warri pending the determination of another appeal in the Supreme Court.

This order of the Supreme Court was served on the High Court Registrar Warri, who paid out the sum of 27, 416Pounds.13s as directed. On 22nd October, 1969, in another suit pending before Atake J. he ordered that the sum of 13,708Pounds.6s is paid out to the adversary of Ugborodo people, Mr. Boyo’s clients. According to Mr. Boyo, he sought an interview with Atake J. and pointed out to him that his order would appear to be in breach of the Supreme Court order; he stated that nevertheless Atake J. said that his order must be carried out despite the order made by the Supreme Court. Whereupon Mr. Boyo on 3rd January, 1970 wrote a letter to the learned judge, a copy of which was sent to the Accountant General (who in the last resort would pay out the money); he also sent copies to the following:

The Chief Justice, Mid-Western State, the Attorney-General of the State, and the Chief Registrar, High Court. The letter reads:

11, Sapele Road, P.O. Box 277, Benin City,
Nigeria,
3rd January, 1970

“BOYO & BOYO
BARRISTERS & SOLICITORS
NOTARY PUBLIC
G. M. BOYO, LL.B. (Lond.) Barrister of the Middle Temple
C. A. BOYO
Barrister of the Inner Temple
Telephone: 193
Our Ref: CV. 135
The Hon. the Judge, High Court III.
Thro The Registrar, High Court of Justice, Warri.
Your Lordship,
SUIT NO. W/46/69
ITSEKIRI COMMUNAL LAND TRUSTEES
versus
DICK OLUER & ORS.

I recall my interview with Your Lordship in respect of the above suit in Your Lordship’s Chambers on 30th December, 1969.

Your Lordship will recall that I met Your Lordship in the High Court Registry that morning querying Your Lordship’s Registrar as to why he had not sent out a payment voucher for the withdrawal of a sum of 13, 708Pounds.6s which Your Lordship had ordered to be paid out to the Itsekiri Communal Land Trustees as per Your Lordship’s judgment and order dated 22nd December, 1969. It was at that stage that I intervened in the matter and informed Your Lordship that I had in fact come to see Your Lordship about certain aspects of the said suit and judgment/order.

Your Lordship however persisted upon instructing the Registrar Mr. T. K. N. Peregba to proceed without delay to ensure that the voucher left for the Government Treasury and that the Itsekiri Communal Land Trustees were paid; after which Your Lordship invited me to Your Lordship’s Chambers on my application to see Your Lordship in connection with the said suit authorising 13, 708Pounds.6s to be paid out to the Itsekiri Communal Lands Trustees.

In Your Lordship’s Chambers, I informed Your Lordship that when I first heard of the judgment and order dated 22nd December, 1969 on 27th December, 1969, I immediately suggested to Your Lordship’s Registrar Mr. T. K. N. Peregba that he should call Your Lordship’s attention to the order dated 17th March, 1969 made by the Supreme Court in suit no. W. 327/68 by which the sum of 13, 708Pounds.6s which Your Lordship had ordered to be paid to the Itsekiri Communal Land Trustees was kept in court.

Your Lordship then regretted that unfortunately, Your Lordship’s Registrar did not call Your Lordship’s attention to the said order of the Supreme Court and that the said order was also not in the case file in suit no. W/46/69. I agreed with Your Lordship that it was unfortunate those facts were not brought to Your Lordship’s notice.

I then reminded Your Lordship that not much harm had been done as the payment voucher which Your Lordship was ordering Your Lordship’s Registrar to forward to the treasury for the withdrawal of the 13,708Pounds.6s when we met in the registry that morning had not infact left the registry. Your Lordship however refused to intervene in the matter and suggested that if anything had been done wrongly it was so done because of counsel in the case.

I reminded Your Lordship further that the sum involved was compensation money retained in Your Lordship’s court by an order of the Supreme Court pending the determination of appeal to that court which had not been heard but again Your Lordship refused to intervene in the matter to stop the money from being paid out because Your Lordship thought the order dated 22nd December, 1969 contained enough safeguards to ensure that the money went to the people of Ugborodo and the Itsekiri Communal Land Trustees.

I did my best to impress upon Your Lordship that it appears that a grave miscarriage of justice has been committed in the proceedings subsequent to the order made by Your Lordship in suit W /46/69 on 24th October, 1969 substituting Mr. Egbe’s clients (viz: Babine Ereku, Olleh Akpienyi, Aniretuoronwa Okotie-Uro and Tsuko Ejuetami) for Chief Dick Olueh and Chief Ojogbo Eribokuo as representatives of the Ugborodo and Ogidigben people but Your Lordship did not appear to be impressed by my contentions.

After arriving in my chambers and reassessing the responsibility in this matter to Your Lordship, the Supreme Court and the Ugborodo and Ogidigben people (who, I represent in this matter), I have decided to make this further appeal to Your Lordship to reconsider the propriety of the order made by Your Lordship in suit W/46/69 on 22nd December, 1969 authorising the sum of 13, 708Pounds.6s to be paid to the Itsekiri Communal Land Trustees when their appeal to the Supreme Court in suit W /27/68 involving the determination of their rights to receipt of any part of this compensation money (among other issues) has not been heard. Your Lordship should also consider the propriety of paying out this money to the Itsekiri Communal Land Trustees before their appeal and the appeal of my clients in suit W/27/68 are heard and without an order from the Supreme Court.

I am to add further that the plaintiffs in W/46/69 (i.e. the Itsekiri Communal Land Trustees) did not seek an order for the payment out to them of 13,708.6s or any other sum of money but a determination of the following question viz:
“The person or persons entitled to the compensation money and the manner and proportion in which they should share the said money paid in respect of the lands situate at Ogidigben at the mouth of River Escravos in Warri Division acquired by the Federal Government and covered by certificate of title dated 20th July, 1966 and registered as no.8 at page 8 in volume 30 in the Benin City land registry.”

It is also pertinent in this regard to mention that both the originating summons dated 15th May, 1969 (filed after the order of the Supreme Court in W/27/68) filed by the plaintiffs in suit W/46/69 and the statement of claim filed by the plaintiffs in the said suit gave some notice of the nature of the proceedings and the order of the Supreme Court dated 17th April, 1969 in suit W/27 /68.
I remain,
Your Lordship, (Sgd.) Mogbeyi Boyo:
SOLICITOR TO UGBORODO AND OGIDIGBEN PEOPLE.”

After the receipt of this letter, and indeed on 22nd January, 1970, the learned judge (Atake J.) directed the registrar to payout the sum of 13, 708Pounds.6s to the adversary of Ugborodo people, that is, the Itsekiri Communal Land Trustees.
On the same day, a letter was written to the registrar, on the instructions of the learned judge, to Mr. Boyo, demanding an apology within 14 days for the letter written to the judge, otherwise he would be dealt with for contempt of court. On a refusal by the plaintiff to tender the apology required he was on or about 6th February, 1970 arrested at Benin City by a warrant issued under the hand of the learned judge at Warri. The execution of this warrant and a second warrant of arrest at Benin City and the subsequent detention of Mr. Boyo without bail are all the subject matter of another appeal before us on which we are also delivering judgment. It is therefore unnecessary to deal with that aspect of the case here. On Mr. Boyo eventually appearing before the court, the learned judge (Atake J.) stated that the case of contempt has already been fully explained but he would make available to counsel and the contempt or a copy of the charge in the record book.
It reads:
“CONTEMPT OF COURT PARTICULARS
Attempted to countermand or render nugatory the order of this court dated the 22nd December, 1969 to the effect that the sum of 13, 708Pounds.6s be paid out to the Itsekiri Communal Land Trustees and the Ugborodo and Ogidigben community by writing a letter CV. 135 of the 3rd January, 1970 published to the Accountant General Benin City and by other acts with the intention of stopping the said Accountant General from paying the said money to the registrar of this court well knowing of the said order and that pursuant to the said order of this court a voucher had been prepared for presentation to the said Accountant General for payment to the registrar of the court of the said amount of 13, 708Pounds.6s to enable the said registrar to pay the said money to the Itsekiri Communal Land Trustees and Ugborodo community as ordered by this court.
(Sgd.) F. O. M. Atake:JUDGE.”

On the charge as presented to the court, counsel for Mr. Boyo took an objection to the case being heard by the learned judge (Atake J.). He submitted that the court and the judge are so much concerned in the matter and the learned judge might as yet be a witness in the case. In the argument which ensued between counsel for Mr. Boyo and the court (Atake J.) it was held by the judge that the proper court to try Mr. Boyo was his court. On his insistence to try Mr. Boyo an adjournment was asked for to prepare a defence. This was granted. Bail was also allowed. Meanwhile an appeal against the order that the court is the proper court to hear the matter was filed in this court.

At the hearing before us, the learned Acting D.P.P. Mid-Western State first took an objection to the court hearing the appeal on the ground that it has no jurisdiction since it is a criminal matter and that no one has been convicted or acquitted. This objection was later withdrawn and hearing of the appeal continued.

Chief F. R. A. Williams arguing that the appeal stated that the first question was to decide whether the alleged contempt was one in the face of the court or one not in the face of the court; that it is only if it is the former that the judge could deal summarily with the matter, and he submitted that the alleged contempt was one not in the face of the court and the judge could not properly deal with the matter.

In the appeal before us however, the learned D.P.P. conceded that the contempt complained of was one not in the face of the court. We therefore do not have to decide the point. It is enough that both sides are agreed that the contempt complained of was not in the face of the court.

What we are called upon to decide in this appeal is: as the contempt in this matter was not in the face of the court, was the learned judge correct in holding that his was the proper court to hear the matter?

Before deciding the point, however, there is one aspect of this case to which we must reluctantly refer since it forms part of the record before us. It arose in this way. When the notice of motion for this appeal and for an order to stay further proceedings in the High Court was filed in this matter, a further affidavit in support of the motion was filed by six of the thirty counsels who appeared for respondent in the High Court. The object of the affidavit was to introduce an exhibit consisting of some 12 pages which they claimed contained the correct proceedings before Atake J. during the trial for contempt. In other words, the record of proceedings by that court were attacked as not containing the true proceedings in court. The learned judge by a counter-affidavit admitted the correctness of many parts of this document and corrected some; he stated however that he did not regard these as proceedings in the case since, for the most part of it, he was explaining to the lawyers in court why he had brought Mr. Boyo up for contempt. The main object the judge said, he “felt called upon” to explain to members of the Bar present what had led up to the arrest of Mr. Boyo for contempt.

Whether or not this dialogue forms part of the proceedings, we must confess that we feel somewhat dismayed that a court should have thought it proper to carry on a dialogue of such a nature. If these are part of the proceedings, as certain parts appear to be, we must express our surprise that the judge had not forwarded a complete record of proceedings to this court for purposes of appeal but had left out what he thought was unfavourable to him. If on the other hand it was a mere explanation to members of the Bar, we must deprecate the conduct of the judge in making the court a forum for his theatrical performance with Mr. Boyo in the dock.

It appeared that during this “lecture” however, members of the Bar appearing for Mr. Boyo interrupted the proceedings and Mr. Aghahowa who appeared to by leading other members of the Bar took an objection to Atake J. hearing the case. He cited a case in favour of his objection. Atake J. in reply was reported to have said:
“I was expecting this objection. The T.V. girl’s case is different from this case. I know I was bringing someone of Mr. Boyo’s eminence to court. Mr. Boyo said in his letter to the Attorney-General that I fumbled in my law. I have done my home work to make sure I do not fumble in my law at the trial. I have my authority which states that I am the proper court to hear this case.”

The learned judge was recorded to have sent for a copy of All England Law Reports from his chambers and cited a case. He then wrote out a ruling that his court was the proper court to hear the case and he would hear it. As recorded, he said:
“1. The position then is this, gentlemen; if you convince me that what Boyo has done does not amount to contempt of this court, he is entitled to an acquittal.
2. But if I find, as I have done, that the letter to the accountant general is contempt of this court I shall send him to prison.
3. Because he said I fumbled in my law I have prepared my case. I have 16 authorities in support of my case and in this trial I shall trade law for law.
4. I completed my legal studies in 18 months and many people considered me a brilliant student.
5. I used to think of Boyo as a brilliant lawyer. .. .

The learned judge went on and on, and was interrupted by Mr. Aghahowa who applied for adjournment to prepare a defence. He also asked for bail for Mr. Boyo, in his own recognisance. Whereupon Atake J. said:
“I am afraid I cannot grant him bail in his own recognisance. He is a regular contempnor. He deserves no favour in this court. All that he is entitled to say is something in his defence. .. .And you say he is the President of the Nigeria Bar Association. But I expect him to behave in such a way as to show complete awareness of his own position. …

The learned judge then went on to talk about his childhood days with Mr. Boyo; how they grew up together and the loyalty he expected from him. As he went on again about the allegation of fumbling in his law, Mr. Boyo from the dock got up to address him. Atake J. snapped, as recorded:
“If you say anything from there, I will send you straight to prison. Sit down! Stupid.”
As Mr. Boyo remained standing, the judge said:
“Tell that man to sit down or I will send him to prison.”
Eventually, Mr. Boyo was able to put in a few words:
“My Lord; you misunderstood me. I did not say you fumbled in your law.”

After more and more tirade by the learned judge, he granted bail in the sum of 500 and one surety in 500.
The above are a few excerpts from the notes of proceedings taken down by counsel for the defence which they claimed were accurate and true record of the proceedings in court. It is noteworthy that of all we have herein mentioned above, Atake J. in his affidavit only denied the last portion that he referred to Mr. Boyo as being stupid. Be that as it may, such were the tenor of the proceedings before the court.

Now the substance of the argument put before us by Mr. Gbemude, Acting B.P.P. Mid-Western State is that the contempt in this case can be punished summarily by the court although the contempt may not be in the face of the court. In effect he agreed with the learned judge that his court was the proper court to deal with the matter. We were referred to the following cases:
McLeed v. St. Aubyn (1899) A.C. 549 at p. 558. Perera v. Rex (1951) A.C. 482.
Awobokum v. Adeyemi (1968) N.M.L.R. 289 at p. 295.

As we are not trying Mr. Boyo for contempt or hearing an appeal against his conviction for contempt we do not find these cases material to the present issue before us. We are clearly not called upon to decide whether or not there was contempt, it was still a matter at large before the learned judge. The concern at present is about the exercise of the power to punish for contempt when in the face of the court, and also as in the present case, not in the face of the court.

Whether the contempt is in the face of the court or not in the face of the court, it is important that it should be borne in mind by judges that the court should use its summary powers to punish for contempt sparingly. It is important to emphasize the fact that judges should not display undue degree of sensitiveness about this matter of contempt and that they all must act with restraint on these occasions. We recall the observation of Lord Russell of Kilo wen in R. v. Gray (1900) 2 Q.B. 36 at p.41 that “jurisdiction to deal with contempt summarily should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt.”

In the case Shandasami v. King Emperor (1945) A.C. 264 at page 268, Lord Goddard, c.J. in delivering the judgment of the court said:
“Dealing first with the appellant’s reference to the conduct of the Bar, their Lordships share the surprise expressed by the Chief Justice when granting the certificate for appeal as to what he described as the somewhat undue degree of sensitiveness displayed in taking so serious a view of what had been said. Their Lordships would, indeed, go further, and say that it would have been more consonant with the dignity of the Bar to have ignored a foolish remark which has been made over and over again, not only by the ignorant, but by people who ought to know better, and, no doubt, will continue to be made so long as there is a profession of advocacy. To treat such words as requiring exercise by the court of its summary powers of punishment is not only to make a mountain out of a molehill but to give a wholly undeserved advertisement to what had far better have been treated as unworthy of either answer or even notice.”

The case was an appeal against conviction for contempt of court where the appellant before the court had said something contemptuous of counsel against him in a case before the judge.
The Lord Chief Justice at p. 270 of the report continued:
“Their Lordships would once again emphasize what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a court must necessarily possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended.”

And in a case of the last century, Mcleed v. St. Aubyn (1899) A.C. 549 at p. 561, Lord Morris said:
“The power summarily to commit for contempt of court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice.”

These observations to which we have referred, to our mind, apply both in cases of contempt in the face of the court and also in cases not in the face of the court, although in the first case, generally, the contempt cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the offence was committed. In cases of contempt not in the face of the court, there may be cases where the offence should be dealt with summarily, but such hearing must be conducted in accordance with cardinal principles of fair process and the case must be one in which the facts surrounding the alleged contempt are so notorious as to be virtually incontestable.

Where the judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in court it cannot be said that the contempt is in the face of the court. In such cases, a judge should not try a contempt in which he is involved. In the present case, the learned judge had stated, and it is on record, that he had witnesses he was going to call to testify to the contempt and it is clear from the record before us that the learned judge was deeply involved.

In the recent Canadian case of McKeown v. The Queen (1971) S.C.R. 357-492 at page 477 Laskin J. said:
“Where the judge has to be and is a witness to facts which are in issue, he cannot, in my opinion, rely on a rule of discretion to justify him in proceeding to judge the issue. Trial of contempt charge by summary process does not necessarily mean trial before the very judge involved in the proceedings out of which the contempt arises. Indeed, it is the preferable course, where conditions do not make it impracticable, or where there will be no adverse effect upon the pending proceedings by the delay, to have another judge conduct the contempt charge. See Offutt v. United States (1954) 348 U.S. 11.”
He continued (at page 478):
“The present case was not one in which the facts surrounding the alleged contempt were so notorious as to be virtually incontestable, nor was it one where the events upon which the contempt was based took place in the full view and appreciation of the court. It would have been the prudent course in this case either to have the Attorney-General assume the carriage of the proceedings before another judge (see Regina v. Gray (1900) 2 Q.B. 36, and Cooke v. United States (1925) 267 U.S. 517 at p. 539) or to invoke the jurisdiction of the Supreme Court of Ontario. .. .”

In the matter before us, we fail to see how Atake J. would have avoided placing himself in the most invidious position of being an accuser, a witness, and also a judge if he was permitted to hear the matter of the contempt.

If even we were to hold that it is a matter within the competence of Atake J. to hear, we feel compelled to say that we would have found it difficult to allow him to proceed to judge the contempt charge since the result of such a trial was a foregone conclusion judging from his own utterances and conduct of the case so far, from the record before us.

We have abstained from referring in this judgment to the unhappy personal relationship between Atake J. and Mr. Boyo which we regret to say that the learned judge has not only brought out vividly in the proceedings in court, but has allowed this to interfere with his judgment.

In the event this appeal succeeds. The order made by Atake J. in his ruling dated 13th February, 1970 that his court was the proper court to try the case of contempt of court in this matter is hereby set aside.

Held

Appeal allowed. Order of trial judge that his court was proper court to try the case for contempt set aside.

Sule Iyanda Salawu v. The State (1970)

Sule Iyanda Salawu v. The State (1970) SC.219/1969

Supreme Court of Nigeria – Before

ADEMOLA ADETOKUNBO – JSC
CHARLES OLUSOJI MADARIKAN – JSC
UDO UDOMA – JSC

Parties

SULE IYANDA SALAWU – Appellants
AND
THE STATE – Respondents

Reported

– (1970) All N.L.R 107

– (1970) LPELR-SC.219/1969


UDO UDOMA – JSC [Lead Judgment]

The appellant was tried and convicted of the murder of one Ramotu Abeoby Fakayode, J. in the High Court, Oshogbo on 22nd May, 1969. His appeal to the Western State Court of Appeal was dismissed. He now appeals to this Court on two grounds: namely:
“(i) The appeal court erred by finding that the trial court was right in refusing the application of the appellant to call a witness on the state of his (appellant’s) health. The said lower court having erred by assuming that the evidence sought to be tendered was ‘non-essential to the just decision of this case; and
(ii) by the failure of the court of trial to grant the appellant’s application to call a witness, the appellant was deprived of the opportunity of putting the whole of his defence to the court”.

At the trial the evidence given by the principal witnesses for the prosecution Amingu Oyekanmi (P.W.1), Salawu Oyeleye (P.W.2), Ayisatu Aduke (P.W.3) and Rabiatu Laroyeke (P.W.5) was to the effect that they, the deceased and the appellant all lived in Ogbagba Village and were inmates of the same house each occupying a separate room; that on the fateful night in which the deceased was murdered they all, including the deceased and the appellant, had, after supper, retired to their respective rooms to sleep. In the middle of the night the deceased was heard to cry “Sule killed me”. Attracted by the cry they all came out and saw the deceased lying dead in a pool of blood in the parlour of the house at the door leading into the appellant’s room. The deceased had a wound on her back. The appellant was not in his room then nor was he seen in the parlour. The matter was reported to the police at Ede and later at Oshogbo. The appellant was later seen with the police at the police station, Ede.

The defence of the appellant was an alibi. He testified that he knew nothing concerning the death of the deceased; that he had no previous quarrel with the deceased; that in the night in question he was at Ede and that he had slept not at Ogbagba Village but at Obara compound at Ede with his relative, a carpenter by name Raifu Ayinla; and that he was arrested by the police at Ede.

In answer to a question by the court, the appellant stated that he wanted Raifu Ayinla to be called to give evidence. Thereupon the learned trial judge made the following notes:
“Court: Case adjourned till 9 for defence. Subpoena to issue to Raifu, carpenter of Bara compound, Ede to come and give evidence about the accused’s whereabout on the night of the incident. Accused must be given facility by the prison authorities to act as pointer to police when serving subpoena.
When the trial resumed on Thursday, 10th April, 1969, the notes made by the learned trial judge read as follows:-

“The accused is present. Bakare for the prosecution. Fatoki for the accused.
Court to accused: Is this the man you called Raifu, Carpenter?
Accused: Yes, he is. Witness called by Court:

Whereupon Raifu Ayinla, having been duly sworn, gave evidence as a witness called by the court. He was cross-examined by both the counsel for the prosecution and the counsel for the defence and re-examined by the court. In answer to a question put to him by the counsel for the defence, Raifu Ayinla said:
“The accused was sick before this incident occurred. He had fever.”
Under cross-examination by the court he said:
“The accused did not sleep in Gbara compound, Ede the night of the incident. But he came to Gbara compound early in the morning of the day following. He came nakedly. Then the police came to search for him and took him away.”

On the conclusion of Raifu Ayinla’s evidence, counsel for the appellant immediately applied, under section 200 of the Criminal Procedure Act, to have Salawu Oyeleye (P.W.2), described as the father of the appellant, who had already given evidence for the prosecution, to be recalled for cross examination as to the condition of the health of the appellant at the material time when the crime was alleged to have been committed. The application was opposed by counsel for the respondent and refused by the court.

In rejecting the application the learned trial judge said inter alia:
“I do not know what is meant by good health. Certainly this is not a matter of insanity because the accused gave evidence before me in the most rational manner. Power to recall a witness will be exercised if it is necessary for the ends of justice, e.g. where an important issue crops up unforeseeably.

If it was true that the condition of the accused’s health was of some importance it would have been raised under cross-examination or by the accused himself. The application is rejected as the evidence sought by it is in my view non-essential to the just decision of this case.”

Thereafter, although it is nowhere recorded in the proceedings that the appellant had closed his case, counsel addressed the court and judgement was reserved. On 22nd May, 1969 judgement was delivered and the appellant was found guilty and convicted. He appealed to the Western State Court of Appeal against his conviction on the principal ground that:-

“The refusal by the learned trial judge of the application of the defence counsel to recall certain prosecution witnesses is wrong and it is not a judicial exercise of the court’s discretion in the matter.”
The appeal was dismissed.

In dismissing the appeal, the Western State Court of Appeal held that the learned trial judge was right in refusing the appellant’s application to recall

Salawu Oyeleye (P.W.2) because in its view:-

“The question whether the appellant was at the material time enjoying good health is quite irrelevant to the proper trial of the case”.. Since

“Throughout the case there was no suggestion by the defence that the appellant ever suffered from insanity or any mental infirmity.” With respect we do not agree with the Court of Appeal that in the circumstances of the present cases the question as to whether or not the appellant was at the material time enjoying good health was irrelevant to a just decision of the case. It would appear that the Court of Appeal did not adequately direct its mind to the point of non-direction on the part of the learned trial judge when he stated that from his observation the appellant gave evidence before him in the most rational manner. It is obvious that when considering the issue the learned trial judge was thinking not of the state of the mind of the appellant at the time when the offence is alleged to have been committed but at the time when the appellant was being tried in the course of which he had to give evidence. The court thereby failed to direct its mind to the state of the mind of the appellant at the time of the commission of the alleged offence, and to make due allowance for the probability of the occurrence of lucid interval in the event of the defence of insanity.

While it is true that throughout the trial, there was no suggestion by the defence that the appellant ever suffered from insanity or any mental infirmity, it is quite clear on the evidence that the question as to the condition of the appellant’s health at the time of the commission of the offence had arisen ex improvise. It was introduced by Raifu Ayinla witness who was called by the court. It was in the course of cross-examination that Raifu Ayinla for the first time revealed that the appellant was sick when the incident occurred; that he had fever; and that he had arrived naked at Ede from Ogbagba the morning after the incident. That evidence was sufficient, in our view, to have put the court on enquiry. Surely it would be highly improbably for a normal person to have traveled naked from Ogbagba to Ede.

We think this is a proper case in which the learned trial judge should have exercised his powers under section 200 of the Criminal Procedure Act, the provisions of which are as follows:-

“The Court, at any stage of the trial, inquiry or other proceedings under this Act, may call any person as a witness or recall and re-examine any person already examined and the Court shall examine or recall and re-examine any such person if his evidence appears to the Court to be essential to the just decision of the case.”

Further it is a well-established principle of law that a judge has in criminal trial a discretionary power, with which a Court of Appeal cannot interfere, unless it appears that an injustice has thereby resulted, of recalling witnesses at any stage of the trial and of putting such questions to them as the exigencies of justice require. That principle was enunciated in Rex v. Remnant [1807] Ruse and Rye, 136 C.C.R. and followed by the Court of Criminal Appeal in England in the King v. Sullivan, [1923] 1 K.B. 47 C.A See also Rex v. Asuquo Edem and others 9 W.A.C.A 25.  

We think that the learned trial judge fell into a fundamental error in holding that the evidence to be given by Salawu Qyeleye (P.W.2) was not essential to a just decision of the case. As a rule of law it is not within the province of a trial judge in determining whether or not he should allow witnesses to be called on behalf of an accused person to take into consideration the probability of the witness being able to give material evidence. That was the rule laid down by the Privy Council in Shorunke v. The King [1946]
AC. 316. It was subsequently followed by the West African Court of Appeal in Rex v Akpan Udo Modem and another 12 W.AC.A. 224.

In our view it was not open to the learned trial judge and least of all the Western State Court of Appeal to have presumed without having heard the witness sought to be recalled that his evidence would not be essential to a just decision in the instant case. Until the witness had testified before the court it was impossible to determine the nature and substance of the evidence he was to give on behalf of the appellant. In the circumstances we accept the submission of the learned counsel for the appellant that the defence of the appellant was not adequately investigated and that by refusing to recall Salawu Oyeleye (P.W.2) on the application of the learned counsel for the appellant, the learned trial judge had deprived the appellant of the opportunity of placing the whole of his defence before the court. This ground of appeal therefore succeeds.

There is another matter concerning practice and procedure to which we wish to draw attention, although the point was not taken before us by learned counsel for the appellant. It is this throughout the trial the case for the defence was never closed. It is nowhere recorded in the proceedings that it was ever closed; yet counsel was called upon to address the court, which was done. This point is important having regard to the fact that when the prosecution closed its case it was so recorded in the proceedings.

According to the record of proceedings the appellant concluded his testimony on 2nd April, 1969. The case was adjourned to 10th April, 1969 for the defence to continue. When the trial resumed without recording that the appellant had closed his defence, the learned trial judge of his own motion called the witness, Raifu Ayinla, whose name was mentioned by the appellant in the course of his testimony. After Raiful Ayinla had testified the learned counsel for the appellant applied for the recall of Salawu Oyeleye (P W.2). The application was refused. Thereafter the court was addressed by counsel without any indication on the record that the case of the defence had been closed. Judgement was reserved and subsequently delivered. As no arguments were addressed to us on this point we would refrain from saying any more than that this method of treating the defence of an accused person would appear to be unusual.

For the reasons already stated this appeal succeeds and is allowed. It is ordered that the case be sent back to the High Court, Oshogbo to be there tried de novo by another judge. It is further ordered that at the retrial the appellant be granted all facilities necessary to call any witness he may wish to call for the purpose of ventilating his defence. Order accordingly. Court below to carry out this order.

Held

Appeal allowed: case sent back to High Court for trial de novo by another judge.

Agbaje ORS. V. Agboluaje & ORS. (1970)

Agbaje ORS. V. Agboluaje & ORS. (1970) SC.236/1967

Supreme Court of Nigeria – Before

ADEMOLA ADETOKUNBO – JSC
CHARLES OLUSOJI MADARIKAN – JSC
UDO UDOMA – JSC

Between

ALHAJI AHMED AGBAJE & ORS – Appellants
AND
CHIEF SALAMI AGBOLUAJE & ORS – Respondents


Reported:

– (1970) All N.L.R 21

– (1970) LPELR-SC.236/1967


UDO UDOMA, JSC – Lead Judgment

This is an appeal against the judgement of the High Court, Ibadan, in Suit No. 1/225/1966 in which the appellants as plaintiffs therein had sought:-

(i) A declaration that the constitution of the Islamic Missionary Society is as contained in the Printed Revised Edition of 1949 and not as in the “Reprinted Edition of 1966”; and
(ii) an injunction to restrain the defendants from conducting the affairs of the Society on the basis of the alleged “Reprinted Edition of 1966.”

Pleadings were ordered and duly filed and delivered. On the pleadings the issue contested by the parties was a narrow one. It was as to whether the 1966 reprinted edition of the constitution of the Islamic Missionary Society was valid. The appellant contended that it was not valid because:-
(i) the amendments therein contained were not passed by a properly constituted executive committee of the Society as there was no legally and duly elected executive committee for the year 1966; and
(ii) the executive committee meeting at which the amendments were passed was not properly constituted as the 1st and 2nd appellants were not given due or any notice thereof and did not therefore attend.

On the other hand, the contention of the respondents who were defendants therein was that the constitution was a legally valid document and the amendments therein contained favoured not only by the majority of the membership of the executive committee but also by the generality of the membership of the Society. It was also contended that the appellants had acquiesced in the passing of the constitution and were therefore estopped from disputing:-
(a) that there were persons holding offices as General Secretary, President, Vice-President and Treasurer of the Society in 1966; or
(b) that there was an executive committee; or
(c) that the provisions of the 1966 constitution were binding on the members of the Society as aforesaid.

Furthermore, objection was raised that the action by the appellants was not maintainable in law and that the court had no jurisdiction to grant the relief sought or, in the alternative, that the court in its discretion ought not to grant the relief claimed.

Only the appellants gave evidence at the trial; and such evidence ranged beyond the issues actually contested. The respondents rested their case on legal submissions alone, one of which was, quite rightly, we think, rejected by the court, questioned the capacity in which the appellants had instituted their claim.

The evidence in support of the appellants’ case was given by the 1st -3rd and the 5th appellants and was carefully summarized and examined in some detail by the learned trial judge in his judgment. After a review of the evidence, the learned trial judge came to the conclusion that on the whole the appellants were not credible witnesses. Having regard to that conclusion, it seems to us that the principle enunciated in S. O. Nwobuoko v. P.N. Ottih (1961 A.N.L.R. 487) cited and relied upon by Mr Ayoola, learned counsel for the appellants, would appear to be irrelevant. In that case it was held that where a plaintiff adduces oral evidence which establishes his claim against the defendant in the terms of the writ, and that evidence is not rebutted by the defence, the plaintiff is entitled to judgement. The appellants could not be said to have established their claim in this case since the learned trial judge had virtually rejected their evidence.

On the evidence such as it was, the learned trial judge was satisfied that the constitution, the subject matter of the suit, was duly passed on 1st October, 1966; that there was a duly elected and effective executive committee of the Society both in 1965 and 1966; that the constitution was duly ratified by the 1966 executive committee at a properly constituted meeting, the said constitution having been properly referred to it for such purpose. Whereupon the court in its discretion refused to grant the relief sought by the appellants: hence this appeal.

In his submission, learned counsel for the appellants contended that the learned trial judge erred in law to have found that the executive committee which purported to have passed the 1966 constitution of the Society was properly constituted in terms of the 1949 edition of the constitution and that the meeting of the executive committee at which the 1966 constitution was purportedly ratified was invalid for want of notice. The authority for the later proposition relied upon by learned counsel for the appellants was the decision of the Court of Appeal in England in Young v. Ladies Imperial Club Ltd. [1920] All E.R. 223 in which it was held that the resolution of a meeting of the Ladies’ Imperial Club to expel one of its members and the meeting at which the resolution was passed were invalid for insufficiency of the notice convening the meeting.

We do not agree with these submissions. We think that the facts and circumstances of Young v. Ladies’ Imperial Club Ltd. are distinguishable from those present in the instant case. There, a member of the Club was to be expelled on the scandalous ground that her conduct was injurious to the character and interest of the Club; and the member’s expulsion in those circumstances would have left a stigma on her reputation and character and therefore the reason for such expulsion required the widest possible airing. In the case under consideration, the executive committee met only for the purpose of ratifying the amendments to the constitution and thereby to advance the interest of the Society. No one was likely to be damnified by the amendments.

It is not mentioned whether in the rules of the Ladies’ Club there was a provision for a quorum for the purpose of carrying on business as is contained in Article (XII)(a) of the 1949 constitution of the Society, or a provision making the summoning of every executive committee member to an executive committee meeting mandatory in which respect the 1949 constitution of the Society is silent. As the learned counsel for the appellants conceded there is no provision at all in the 1949 constitution relating to the mode of summoning a meeting of the executive committee.

The learned trail judge, as already stated, gave careful consideration to the points raised in the submissions. He expressly rejected the appellants’ denial that there was in existence a duly elected committee of the Society in 1966, and that the 1966 constitution was duly and properly ratified by the executive committee which, the learned trial judge found, was the only competent authority by virtue of the provisions of Article (XXXI) of the 1949 constitution to amend or alter the constitution from time to time “by a majority vote.” It was to that body that the general meeting of the Society, at which the appellants were present, referred the 1966 constitution for ratification. The appellants consented to that reference. The ratification was done at a meeting which was attended by Salawu Yesuff 2nd appellant whom the learned trial judge described as the only member of the executive committee to testify for the appellants. The implication of such finding must be that the learned trial judge did not accept the 1st appellant’s claim that he was also a member of the executive committee. Therefore no question of any notice of the meeting of the executive committee to him would arise.

It was also found by the learned trial judge that, prior to the action in court, the appellants had recognized the respondents as officers of the Society. We are satisfied that the finding was supported by the evidence. The court was therefore right in upholding the plea of estoppel. The decision in Square v. Square [1935] All E.R. 781 to which we were referred by the learned counsel for the appellants can afford the appellants no assistance; for it was there laid down as a general principle, that if two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time. It could not be said that, in the instant case, the appellants and the respondents had agreed to assert the same truth or falsehood at the same time.

This is a peculiar case, and the submission by Chief FRA. Williams, learned counsel for the respondents, which we accept, that it was not a proper case for a grant of a declaration such as was asked for by the appellants would appear to be irresistible. 

It is trite law that a court cannot make an unenforceable order. In a case of this kind, in view of (The undisputed averment that the amendments complained of were popular, if even the evidence of the appellants was accepted and the relief sought granted, there would have been nothing to prevent the respondents soon thereafter from summoning a meeting of the Society and passing a proper resolution ratifying the amendments, the subject matter of the complaint. In a recent case the Court of Appeal in England in reversing Pennycuick J. held that even in the absence of an express power to alter the rules governing a club, such power can be implied from a favourable response by a majority of members by their acquiescence in a change of constitution. See Abbatt and Others v. Treasury Solicitor and Others [1969] 1. W.L.R. 1575.

In refusing the relief sought the learned trial judge had recourse to the warning in the Privy Council judgement in lkebife lbeneweka and Others v. Peter Egbuna and Another [1964] 1 WL.R. 219 delivered by Viscount Radcliffe in which he said

“The general theme of judicial observations has been to the effect that declarations are not lightly to be granted. The power should be exercised ‘sparingly’ with ‘great care and jealousy,’ with ‘extreme caution,’ with ‘the utmost caution.’ These are indeed counsels of moderation, even though as Lord Dunedin once observed, such expression affords little guidance for particular cases. Nevertheless, anxious warnings of this character appear to their Lordships to be not so much enunciations of legal principle as administrative cautions issued by eminent and prudent judges to their, possible more reckless, successors. After all, it is doubtful if there is more of principle involved than “the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation with judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.” (See pp. 224-225).

In view of the care and caution exercised by the learned trial judge in considering the whole of this matter, the appellants have failed to persuade us to hold that his refusal to grant the relief sought was not the result of a proper exercise of his judicial discretion. In the circumstances, this appeal fails. It is dismissed with costs to the respondents assessed and fixed at 40 guineas. Order accordingly.

Held

Appeal dismissed.

Joseph A. Agbachom v. The State (1970)

Joseph A. Agbachom v. The State (1970) SC.304/1969

Supreme Court of Nigeria – Before

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

Between

JOSEPH A. AGBACHOM – Appellants
AND
THE STATE – Respondents


Reported:

– (1970) All N.L.R 71

– (1970) LPELR-SC.304/1969


IAN LEWIS – JSC [Lead Judgment]

In suit C/16/1969 in the High Court Calabar the accused was charged with contempt of court in the following terms-

“In paragraph 5 of an affidavit in support of a motion filed by your solicitor on 9-6-69 in suit No. C/16/69 in which you are 2nd defendant you stated as follows:- .
That the Oban (Nigeria) Rubber Estate Ltd. paid to his Lordship the sum of N488:15s being balance out of 700 guineas legal debt on the 10th day of April, 1969, out of the trust fund.

By that statement I understand you to mean that I clandestinely while a judge collected the said sum without your knowledge or authorisation and that what I call ‘legal debt’ is not in fact a debt owed to me. This false imputation of yours has lowered the dignity and authority that belongs to this court.”

On the 24th of July, 1969 Bassey J., found that the accused guilty and sentenced him to a fine of N75 or to imprisonment for 3 months, and against that decision the accused has appealed to this court.
The charge arose because the accused was a defendant in a civil action and through his counsel he applied by motion to Bassey J. for an order to transfer the case to another judge and for the purposes of that application the accused swore an affidavit which inter alia stated:-

“3. That on the instructions we have given to our solicitor, including documents submitted he has advised us and we verily believe that he would serve a witness summons on his Lordship the judge to give evidence in this suit.

4. That in particular in letter dated 20th March 1968 addressed to the Oban people by Mr. P.O.E. Bassey (as he then was) parts of which read as follows:-
 ‘….In the 1950’s I spent all I had on a bogus lorry which Edet Asuquo went and bought for Oban. And although I have appealed to the town several times in the past to refund my expenditure, nobody paid any heed. As I have become convinced that some Oban people are always interested in my downfall, I have decided to take steps to protect myself. These people, will however, by the help of God never see my downfall… The town has behaved to me as if I was her slave. Even those trained in other places out of the funds of the people have not been treated with the spite, malice, ill-will and ingratitude that Oban people have shown to me. I am now determined that this will not happen again. I tendered professional advice for the town to take legal steps to set aside the decision of the arbitrator yet my advice was turned down for reasons best known to you. I have kept quiet all this time because I felt you had no money. But now I am determined to recover all my expenses, minus the lorry, from you people before you squander the next rent. . . ‘
and in view of this my solicitor informs me and I verily believe that it would not be proper for his Lordship to take this case.

5. That the Oban (Nigeria) Rubber Estate Ltd. paid directly to his Lordship the sum of #488’15s being balance out of 700 guineas legal debt on the 10th day of April 1969 out of the trust fund.”
When the application came before Bassey J. there was argument on whether the affidavit contained sufficient material to warrant the application being granted and after hearing counsel on both sides Bassey J. according to the record apparently said –
“For 1st defendant to say he is Oban and Oban is himself is a fact which should have been alleged in the affidavit. The court has been put into a position it has to defend itself. I shall put the deponent into the witness box”
and then the learned trial judge put the accused in the box and it would seem himself examined him as the record reads –

“I live at Oban, farmer. I see this letter. It is the letter quoted in my affidavit. Mr. Oku has not objection. Mr. Okon has no objection. Letter admitted exhibit 1.

Look at this document: is that the authority you gave to Oban (Nigeria) Rubber Estates Limited to pay ‘a3488 15s to me. Yes. Mr. Oku has no objection. Mr. Okon has no objection. Admitted exhibit 2.

Exhibit 2 was given in respect of arbitration you conducted for Oban while you were a practising lawyer. It is in respect of final payment of professional fees. XXM by Mr Oku: I was not compelled by my counsel to make the affidavit in support of my application. XXM by Mr. Okon: No question.”

The learned trial judge then apparently himself drafted the charge to which we have earlier referred and after asking the accused if he had any:-thing to say why he should not be punished for contempt he granted the accused an adjournment to consult his counsel and the next day the accused pleaded “not guilty”. Mr. Oku who was counsel for the accused then objected to the charge on the ground that the accused could only be tried on indictment or information and after reserving his ruling to the following day Bassey J. gave it then and concluded by saying –

“It is my view that an affidavit before the court that amounts to contempt of court is as much contempt before the court as any other act before the court. Besides, it appears to me that information or indictment need not be resorted to if it would be calculated not to serve the end of justice. I therefore rule that the court could proceed by summary trial in the case.”
Then once again it appears the learned trial judge began to examine the accused as the record reads- ‘

 “This is the authority Oban people gave to the Oban (Nigeria) Rubber Estate Limited to pay you #488’15s signed it. Mr. Oku has no objection. Authority admitted as exhibit 1.
Mr. Oku wishes to tender statement of account between Oban people and Oban (Nig.) Rubber Estate Ltd. Admitted and marked exhibit 2. Mr. Oku tenders another letter which he said he received from the Registrar of the High Court, admitted and marked exhibit 3. Mr. Oku addresses. Paragraph of the affidavit of 5-6-69 was made in good faith stating the facts which are quite correct.

Mr. Oku seeks to tender a copy of the affidavit in question. Affidavit admitted and marked exhibit 4.

Paragraph 5 of exhibit 4 is intended to roundoff a statement in paragraph 4 of exhibit 4. In exhibit 2 it is shown that the sum of 488:15s paid by Oban (Nigeria) Rubber Estates Ltd. has been accounted for.
Looking at paragraph 5 of exhibit 4 I would submit that it is an innocuous statement of facts which existed then.

Court: Mr. Oku look at the paragraph 5 of exhibit 4 without indicating that the money was paid by their authority, does it not give a reflection.
Mr. Oku: I now see your Lordship’s point and I am sorry. No reflection at all was meant.
In his judgement on the 24th of July, 1969 the learned trial judge after setting out the charge said-

“It appears to me this is an imputation of misconduct. Exhibit 1 tendered in the proceedings and which was signed by the accused himself with others shows that the sum arose out of balance of the professional fees of 700 guineas and its payment was authorised by the exhibit.
The exhibit reads as follows-

Oban People
Oban Town,
Calabar.
14th August, 1968.

The Senior Manager,
Oban (Nig.) Rubber Estates Ltd., Oban Town,
P.O. Box 236,
Calabar.
Dear Sir,
Authority
We the undersigned, for ourselves and on behalf of the people of Oban Town, hereby authorise you to pay on our behalf from the 1968 land rent due to us the sum of #488:15s (four hundred and eighty eight pounds, fifteen shillings) to Mr P.O.E. Bassey, being fees owed to him by us for his professional services.
On payment of the said sum to Mr. Bassey, you will accordingly deduct the money from the 1968 rent. This could be done by sending you a receipt as if the money was paid to us.’
At the foot of the exhibit appear the following: ‘Copy Mr Bassey for information please.’
Exhibit 2 tendered by accused clearly shows that they are aware that the sum in exhibit 1 had been paid and that they had complied with their stipulation in exhibit 1 as regards the payers.

The offending affidavit was admitted as exhibit 4. Is this contempt of court and is this contempt in the face of the court?
Section 133 of Cap. 30, Laws of the former Eastern Nigeria, 1963, still applicable to the South-Eastern State of Nigeria by virtue of section 1(5) of the States (Creation and Transitional Provisions) Decree, 1967, in part reads as follows:
Any person who
(a)
(b)
(c)
(d) While a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceedings, or capable of prejudicing any person in favour or against any party to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being had or taken is guilty of a simple offence, and is liable to imprisonment for three months.

I think this false imputation was calculated ‘to lower the authority of’ the person before whom the proceeding in the application by the defendants for the transfer of the suit to another court was pending.
Quite apart from the above section s. 6 of the Criminal Code Law, Cap 30 retains the inherent jurisdiction of this court to punish for contempt of its authority.”,
and concluded his judgement by saying –

“Mr Oku in his address said paragraph 5 of exhibit 4 was a rounding off of what had been said earlier. He further submitted that the para:-graph was made in good faith, stating facts, and no harm was meant. That may well be so, but harm has been done and mens rea is not a constituent of criminal contempt: Reg. v. Odhams Press Ltd. [1956] 3 All E.R. 494.

The purpose of the affidavit and paragraph 5 in particular of exhibit 4 was to obstruct or delay the hearing of the case; for up till now pleadings have not been ordered in the suit.

I hold that a contemptuous affidavit before the court is as much a criminal contempt in the face of the court as any other contempt justifying summary attachment: R. v. Gray [1990] 2 Q.B. 36. for the reasons stated I find the accused guilty.”

Now the first and fundamental point taken by Mr. Lardner on this appeal for the accused is that the paragraph in question in the affidavit which read-
“5. That the Oban (Nigeria) Rubber Estate Ltd. paid directly to his Lordship the sum of N488’15s being balance out of 700 guineas legal debt on the 10th day of April, 1969 out of the trust fund.”
did not on its face amount to contempt of court. It was made in support of a perfectly normal application for transfer of the civil case to another judge, because Bassey J. when earlier a legal practitioner had dealt with the matter, and was stating true facts. It only stated that the learned trial judge was paid a legal debt. Mr Ekong for his part initially argued that there was an implication that something immoral had been done in paying out of the trust fund, that it implied the judge collected the money without authority and that whilst legally due to the judge it was paid in an unauthorised way. He however conceded that it was not specifically so stated in the affidavit that the money was paid in an unauthorised way but he submitted that such was the “undertone”. He further conceded it was never stated that the learned trial judge was not entitled to the money but as a possible aspersion, he submitted might be found in the inverted commas round the words “legal debt”. Finally on this point he conceded that it was possible to draw from the paragraph in question in the affidavit two possible conclusions only one which was adverse to the accused and could be considered contempt.
To our mind, since a contempt of court is an offence of a criminal character, it must be proved beyond reasonable doubt. Therefore, where as in the present case, there are two equally likely possibilities open to the court when considering the act complained of, it is not proper to hold that the offence of contempt has been proved beyond reasonable doubt. (See In re Bramblevale Ltd. [1969] 3 W.L.R. 669 at 705). This view is all the more important if we advert to the observation of Lord Atkin in the Privy Council in Ambard v. Attorney-Generalfor Trinidad and Tobago [1936] A.c. 322 at p. 335 which reads:-

 “But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of jus:-tice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”and see also Lord Denning in R. v. Metropolitan Police Commissioner [1968] 2 All E.R. 319 at 320. Both those cases deal with contempt of court by statements in newspaper or other publications but they establish clearly the principle that a court must be very careful in the exercise of its powers to convict of contempt and to use it sparingly.
We think that principle applies in every way as much to contempt in the face of the court.

Whether a statement in an affidavit before a court could amount to contempt in the face of the court would depend on a number of circumstances such as the conduct of the deponent, the reader of the statement and the circumstances of his reading. Counsel may of course be liable for contempt in the face of the court for statements he may make (See Vidyasagara v. The Queen [1963] A.C. 589). This would be for an act done calculated to bring the court or a judge of the court into contempt or to lower the judge’s authority within what Lord Russell C.J. had laid down in R. v. Gray [1900] 2 Q.B. 36 where at page 40 he said-

“Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a con:-tempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwick L.C. characterise as range scandalising a Court or a Judge.’ In re Read and Huggonson (1742) 2 Atk. 291,469.”

We think further that the learned trial judge would have done well to have kept in mind the words of Lord Goddard in Shamdasani v. King-Emperor [1945] A.C. 264 where at page 268 he said-

“Dealing first with the appellant’s reference to the conduct of the Bar, their Lordships share the surprise expressed by the Chief Justice when granting the certificate for appeal as to what he described as the some:-what undue degree of sensitiveness displayed in taking so serious a view of what had been said. Their Lordships would, indeed, go further, and say that it would have been more consonant with the dignity of the Bar to have ignored a foolish remark which has been made over and over again, not only by the ignorant, but by people who ought to know better, and, no doubt, will continue to be made so long as there is a profession of advocacy. To treat such word as requiring the exercise by the court of its summary powers of punishment is not only to make a mountain out of a molehill but to give a wholly undeserved advertisement to what had far better have been treated as unworthy of either answer or even notice.”

Finally on this point we draw attention to the case of Izuora v. The Queen [1953] A.C. 327 where at page 336 Lord Tucker said –

“It is not possible to particularize the acts which can or cannot constitute contempt in the face of the court, but in this connexion it is desirable to bear in mind what was said in the judgement of the Board delivered by Lord Goddard in Parashuram Detaram Shamdasani v. King-Emperor [1945] A.C. 264, 270 where these words are to be found:-‘Their Lordships would once again emphasize what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended.’ It is not every act of discourtesy to the court by counsel that amounts to contempt, nor is conduct which involves a breach by counsel of his duty to his client necessarily in this category. In the present case the appellant’s conduct was clearly discourteous, it may have been in breach of rule 11 of Ord. 16, and it may, perhaps, have been in dereliction of his duty to his client, but in their Lordships’ opinion it cannot properly be placed over the line that divides mere discourtesy from contempt.”
Quite apart of Mr. Ekong’s concession that two possible meanings are attributable to the paragraph in question in the affidavit, which would dispose of the matter, in fact reading the paragraph in a normal,. natural and balanced way we cannot see that prima facie any contempt of court can be shown on the face of it. It stated a fact, which is not disputed, that money due under a legal debt was paid to the learned trial judge. To impute immoral motives into that, as the learned trial judge did, seems to us quite untenable. It follows that the accused was wrongly convicted and sentenced.

The matter does not rest there however as we must draw attention to the fact that the learned trial judge seems to have been completely confused over the mode of procedure that he adopted. At page 6 of the record to which we have referred it is stated “the court has been put into a position it has to defend itself. I shall put the deponent into the witness box,” and this on any showing was a quite wrong procedure. If the learned trial judge wished to deal with a case of contempt in the face of the court summarily he should have put the accused not in the witness box but into the dock and asked him to show cause why he should not be convicted. He should not have compulsorily put him into the witness box as apart from anything else that offended against section 22 (9) of the Constitution of the Federation which reads-“No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”

The learned trial judge himself drafted a charge and seems to have proceeded both under his common law powers preserved by virtue of section 6 of the Criminal Code Law and also under section 133 of the Criminal Code. The charge did not specify under which provision the accused was charged. The learned trial judge concluded his judgement with the words “for the reasons stated I find the accused guilty” and thus did not state, as he should have done, under what provisions he found him guilty. From the judgement which we have quoted it appears to us that he purported to convict the accused under both his common law powers and under section 133 of the Criminal Code. If the learned trial judge was acting at all under section 133 of the Criminal Code then he was in error as that should have been tried before a different court. We do not think, as Mr Ekong submitted to us, that the reference to section 133 of the Criminal Code in the judgement was as he put it “extraneous argument in the reasoning of the judgement which was convictiag solely under the common law” as the judge stated he convicted the accused “for the reasons stated” which included the reasons why he thought the accused was guilty under section 133 of the Criminal Code.

For the many reasons that we have indicated the conviction here was in error and we accordingly set aside the conviction and sentence of a fine N75 or 3 months imprisonment and enter a verdict of acquittal. If the fine has been paid it must be refunded immediately to the accused.

Held

Appeal allowed: conviction and sentence set aside: verdict of acquittal entered.

Lakanmi & Anor. V. AG. West & Ors (1970)

Lakanmi & Anor. V. AG. West & Ors (1970) SC.58/69

Supreme Court of Nigeria – Before

ADEMOLA ADETOKUNBO – JSC
GEORGE BAPTIST AYODOLA COKER – JSC
IAN LEWIS – JSC
CHARLES OLUSOJI MADARIKAN – JSC
UDO UDOMA – JSC

Between

  1. E.O. LAKANMI
  2. KIKELOMO OLA
    (by her guardian and next friend E.O. Lakanmi) – Appellants

AND

  1. THE ATTORNEY-GENERAL (WEST)
  2. THE SECRETARY TO THE TRIBUNAL
  3. THE COUNSEL TO THE TRIBUNAL – Respondents

Reported:

– (1970) LPELR-SC.58/69


Ademola Adetokunbo – Lead Judgment

This is an appeal from the Western State Court of Appeal which heard and dismissed the appeal of the appellants from the judgment of the High Court of Western State sitting at Ibadan.

The application before the High Court was for an order of certiorari to remove an order dated August 31, 1967, made by Mr. Justice Somolu in his capacity as the chairman of the Tribunal of Inquiry into the assets of public officers of the Western State, into court, for the purpose of being quashed. The order itself which was admitted in evidence as Exhibit B in the certiorari proceedings reads:-
“Order by Assets Tribunal.

Under the provisions of section 13(1) of Edict No.5 of 1967, it is hereby ordered that Mr. E.O. Lakanmi, Kikelomo Ola (his daughter) and all others who may be holding properties on behalf of or in trust for any of them, shall not dispose of or otherwise deal with any of the said properties of whatever nature (i.e., lands, houses, etc.), whether standing in their names, or in any others of their various names and/or aliases, until the Military Governor of the Western State of Nigeria shall otherwise direct.
2. In particular, it is hereby ordered that the said E.O. Lakanmi and his said daughter mentioned above shall not operate their individual bank accounts by means of withdrawal therefrom without the consent of and only to the extent that the Military Governor of the Western State shall permit in writing.
3. It is hereby further ordered that all rents due on the properties of the said persons from henceforth shall be paid by the tenants thereof into the Western State Sub-Treasury at Ikeja or the Treasury at Ibadan, until the Military Governor shall direct to the contrary pending the determination of the issues involved in the investigation into the assets of all those concerned.
4. Attention of all the persons concerned, and or their partners, co-directors, shareholders or nominees, or anyone who may like to have business transactions with them for any reasons or in any manner whatsoever is invited to these orders and the penalties provided by section 13(2) of the same Edict in case of the infringement thereof.
Dated August 31, 1967.”

The Judge of the High Court on December 21, 1967, dismissed the application, holding that the order was not ultra vires and that Edict No.5 of 1967 was validly made since, according to him, the Federal Military Government Decree No.51 of 1966 was not in question in the Western State of Nigeria when the Edict was made. We shall have cause to say more about Decree No.51 of 1966. He went further to say that the validity or otherwise of the order made by the chairman of the Tribunal could not be challenged since section 21 of Edict No.5 of 1967 states that:
“No defect whatsoever in anything done by any person with a view to the holding of, or otherwise in relation to, any inquiry under that Decree and this Edict, shall affect the validity of the thing so done or any proceedings, finding, order, decision or other act whatsoever of any person, the tribunal, or the special tribunal and in particular, no action or proceedings in the nature of quo warranto, certiorari, mandamus, prohibition, injunction or declaration or in any form whatsoever against or in respect of any such thing, proceeding, finding, order, decision or other act, as the case may be, shall be entertained in any court of law.”
A few days after this judgment, and indeed on December 27, 1967, the appellants filed their notice of appeal with nine grounds of appeal, to the Western State Court of Appeal.

From the grounds of appeal filed, it no doubt became obvious to the respondents what they had to meet at the hearing of the appeal; and when the appeal was pending, the Federal Military Government came to their aid by passing three successive Decrees, namely –
No.37 of 1968 – The Investigation of Assets (Public Officers and Other Persons) Decree, 1968.
No.43 of 1968. -The Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree, 1968.
No.45 of 1968. -The Forfeiture of Assets, etc. (Validation) Decree, 1968, dated August 28, 1968.
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These Decrees speak for themselves as their objects are clear, and they applied throughout the Federation. It was therefore no surprise when on October 18, 1968, the Acting Principal State Counsel filed in the Western State Court of Appeal a notice of preliminary objection that the court had no jurisdiction to entertain the appeal on the following grounds, that is to:
“(1) that the proceedings in this appeal relate to a challenge of the validity of an order which has been validated for all purposes under the provisions of section 1(2) of the Forfeiture of Assets, etc. (Validation) Decree, 1968, No. 35 45;
(2) that the said proceedings have abated as from August 28, 1968 by virtue of section 2(2) of aforesaid Decree.”
We recite the whole of the Decree, No. 45 of 1968, leaving out the Schedule, as follows:
”The Federal Military Government hereby decrees as follows:-
1. (1) All orders specified in column 2 of Part A of the Schedule to this Decree and made under the provisions of any enactment or other law (repealed by subsection (1) of section 14 of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968) for the purpose of forfeiting the assets of, or adjudging liable to make reparation, any public officer or other person specified in column 1 of Part A of the Schedule to this Decree, are hereby validated for all purposes with effect from their respective dates of commencement as specified in column 3 of that Part, and accordingly the said orders shall have effect by virtue of this Decree as hereinbefore provided and the assets aforementioned shall be deemed to have been forfeited and the same may be disposed of or otherwise dealt with as provided in those orders.
(2) All orders in writing dated respectively as specified in column 2 of Part B of the Schedule to this Decree and made in respect of the public officers and other persons specified in column 1 of that Part, under subsection (1) of section 13 of the Public Officers and Other Persons (Investigation of Assets) Edict 1967 (repealed as mentioned in subsection (1) of this section) for the purpose of prohibiting dispositions of, or other dealings with, the properties of the said public officers and other persons, except to the extent and in the manner specified in the said orders, are hereby validated for all purposes with effect from the respective dates of the making thereof.
(3) All other orders, notices or documents made or given or other thing whatsoever done under the provisions of any enactment or other law repealed as mentioned in subsection (1) of this section, are hereby validated for all purposes with effect from the dates on which the same were made, given or done respectively.  
2. (1) For the avoidance of doubt, it is hereby declared that the validity of any order, notice or document made or given or purported to be made or given or of any other thing whatsoever done or purported to be done under the provisions of any enactment of law repealed as mentioned in subsection (1) of section 1 of this Decree or the circumstances under which the same has been so made, given or done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising from this Decree or from any enactment or other law repealed as aforesaid.
(2) Where immediately before the date of commencement of this Decree any proceedings in any court of first instance or on appeal from such court are pending or any right to bring such proceedings has accrued in respect of any matter as to the validity of which courts are precluded from enquiring by subsection (1) of this section, the proceedings or right as aforesaid shall abate as from the date of commencement of this Decree.
3. (1) In this Decree, unless the context otherwise requires- “public officer” has the same meaning as in subsection (1) of section 13 of the Investigation of Assets (Public Officers and other Persons) Decree 1968.
(2) Subject to the provisions of this Decree, this Decree shall be read and construed as one with the Investigation of Assets (Public Officers and Other Persons) Decree 1968, and accordingly, the provisions of the last mentioned Decree shall, with necessary modifications and adaptations, apply with’ respect to orders, notices, documents and other things, whatsoever validated by this Decree.
(3) The provisions of this Decree shall have effect notwithstanding anything to the contrary contained in any decision, determination, judgment or order of any court made or given before the date of commencement of this Decree.
(4) This Decree may be cited as the Forfeiture of Assets, etc. (Validation) Decree 1968 and shall have effect throughout the Federation.”
We have not copied out the Schedule but we have to state that the present applicants’ names were included with others in the Schedule.
When on October 22, 1968 the appeal was to be heard, the Senior State Counsel for the respondents objected in limine on the grounds stated in his notice of preliminary objections aforesaid. As the same grounds were argued before us, we refrain at this stage from setting them out, except to say that the Court of Appeal ruled that Decree No.45 of 1968 was valid and that:
(1) the order, which is the object-matter of the action, has been validated by Decree No.45 of 1968, and
(2) that the Decree has also ousted the jurisdiction of the court.
Fatayi-Williams, JA, who delivered a separate judgment agreed on – (1) but did not deal with (2). The court then proceeded to strike out the appeal. It is from this judgment that the appellants have appealed to this court.
It appears clear from the above that the Western State Court of Appeal did not consider the points involved in the arguments before the high court as that court was of the view that since the passing of Decree No. 45 of 1968, it is without jurisdiction.
We feel ourselves bound, however, although that decision of the high court is now overtaken by events, to deal with some important points raised in the arguments in that court. The arguments to which we refer centre around Federal Government Decrees No.1 of 1966 and No. 51 of 1966, and Edict No.5 of 1967 passed by the Government of Western Nigeria on April 14, 1967. We will consider at this stage the history of these enactments. The Federal Military Government it is true to say, justifies its existence by the passing of Decree No. 1 of 1966. For our purpose, however, section 3 and 4 of that Decree are relevant and we reproduce them as follows:-
3. (1) The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.
(2) The Military Governor of a Region-
(a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and
(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter included in the Concurrent Legislative List.
(3) Subject to subsection (2) above and to the Constitution of the Federation the Military Governor of a Region shall have power to make laws for the peace, order and good government of that Region.
(4) If any law-
(a) enacted before January 16, 1966 by the legislature of a Region, or having effect as if so enacted, or
(b) made after that date by the Military Governor of a Region, is inconsistent with any law-
(i) validly made by Parliament before that date, or having effect as if so made, or
(ii) made by the Federal Military Government on or after that date, the law made as mentioned in paragraph (i) or (ii) above shall prevail and the Regional Law shall, to the extent of the inconsistency be void.”
It is evident from these sections of the Decree that the Federal Military Government is empowered to legislate for the whole of Nigeria and that its powers are in no way derogatory to the powers that Parliament had under section 69 of the Republican Constitution of Nigeria. It is also evident that State Governments shall legislate by means of Edicts (as opposed to Decrees by the Federal Military Government), and for our present purpose, it is clear that the Legislative Lists, namely, the Exclusive Legislative List and the Concurrent Legislative List, as evidenced by our Constitution, are kept distinct by the Federal Military Government. Section 3(2) above provides –
3. (2) The Military Government of a Region –
(a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and
(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter included in the Concurrent Legislative List.”
But on May 24, 1966, Decree No.34 of 1966 was passed.
Section 1 reads – “Subject to the provisions of this Decree, Nigeria shall on May 24, 1966…..cease to be a Federation ….and shall as from that day be a Republic ….”
By Section 2(1) – The Federal Military Government shall be known as the National Military Government.
Section 2(1)(c) – makes the Regions a group of Provinces.
Section 2(3) – deprives a Regional Military Governor of his powers to make laws except by express delegation from the National Military Government.
The National Military Government, as it was then called, on June 28, 1966 passed Decree No. 51 of 1966 – Public Officers (Investigation of Assets) Decree which gives powers as to certain assets of public officers to be investigated. Section 5 of this Decree delegated powers to each Military Governor “in relation to their respective group of provinces” to carry out investigations in their provinces, and subsection (3) states that no order shall be made by a Military Governor except with the prior consent of the Head of the National Military Government.
Thus, it is clear that this Decree, No. 51 of 1966, provided for the investigation of assets of public officers throughout the country.
On September 1, 1966, however, Decree No. 34 was repealed by Decree No. 59 of 1966 and once again, the Government assumed the name Federal Military Government and the position before that Decree (No.34) was restored.
Decree No. 51 of 1966 relating to Investigation of Assets etc., however stands.
On April 14, 1967, the Government of Western Nigeria passed Edict No.5 of 1967 entitled Public Officers and Other Persons (Investigation of Assets) Edict 1967 35 to which we have earlier on referred in this judgment. It was by virtue of this Edict that the order Exhibit B against the present appellants by the chairman of the Tribunal was made.

The arguments before the high court were –
(1) that the Edict No.5 of 1967 is void since it purported to operate in the same field as the Federal Military Government Decree No.51 of 1966, which in fact has covered the whole field, and
(2) that some sections of the Edict are in direct conflict with the provisions of the Decree No.51 of 1966. In the High Court, and indeed in his argument before us, the Attorney- General, Western State admitted the inconsistencies with the Decree but sought that at the time the Edict was enacted (namely, April 14, 1967), the Decree No. 51 of 1966 had no force as a Decree in the Western State. He said further, that the Edict and the Decree were to be read together. The Attorney-General then submitted that Decree No. 51 of 1966 was not recognized in Western Nigeria at the time Edict No.5 of 1967 was passed and went on to say that the cumulative effect of Decree Nos. 34 of 1966, 59 of 1966, 8 of 1967, 13 of 1967 and 27 of 1967 was to make Decree No. 51 unrecognizable.
We have considered earlier on the effects of some of these Decrees like Nos. 34 and 59 and we see nothing worthy of our attention relevant to the point in the other Decree except to say that Decree No.8 of 1967 re-established the position of Decree No.1 of 1966 vesting the Supreme Military Council both the legislative and executive powers of the Government of the Federation.
Arguing further on the point, the Attorney-General relied on the provisions of section 6(i)(a) of the Interpretation Act (No.1 of 1964) which provides that ”the repeal of an enactment shall not revive anything not in force or existing at the time when the repeal takes effect”.

With respect, we find ourselves unable to agree with the Attorney-General that the reading of these various Decrees lead to the conclusion he had put forward. It is clear to us that Decree No. 51 of 1966 was valid and was in operation throughout the country when it was made, and the constitutional changes in the country during that period have not, to our mind, affected it. Further, it was never denied or argued that Decree No.1 of 1966 was at any time ineffective particularly in regard to sections 3 and 4 which we have earlier considered and the effect of this Decree on Edict No.5 of 1967 is to render the latter void.
We entirely disagree with the views of the Judge of the High Court in his consideration of the phrase “cover the field” as applied by the Australian Courts, when he said:-

“The Decree No.51 of 1966 has passed through four constitutional changes in the country. I think it will be sweeping to say that the intention to be inferred was the intention of the Federal Military Government at the time the Decree was enacted. The conditions in this country are unlike what is obtaining in Australia where the Constitution referred to in the cases cited is almost permanent.
But in this country since 1966 January the Constitution of the country has on many times been suspended and the constitutional Decree by which the country is largely governed have been importantly changed four times.”
We fail to see anything in the changes made by the various Decrees in 1966 and 1967 which deprived the Federal Military Government of its right as the Supreme Legislative body to manifest within its powers its intention or to express by enactment a complete, exhaustive and exclusive code, as to what shall be the law governing the investigation of Assets of Public Officers, etc. In our view any other law made by any state on the same subject, is void. This of course is the doctrine of “covering the field” attributed to the Australian Courts, and in accord with the cases:-
i. Ex Parte Mclean 43 C.L.R. 472 at page 483;
ii. The State of Victoria and Ors. v. Commonwealth of Australia and Ors. 58 C.L.R. 618 at page 630; and
iii. O’Sullivan v. Noarlunga Meat, Limited, etc. (1956) 3 All E.R. 177; (1957) 45 A.C. 1.

We therefore reject the views of the Judge of the High Court on the validity of Edict No.5 of 1967. We have no hesitation in holding that the Edict is ultra vires the Decree of the Federal Military Government.
We now direct our attention to the series of events which took place between the judgment of the High Court and the hearing of the appeal in the Western State Court of Appeal. As we mentioned earlier on, during the pendency of the appeal in the Western State Court of Appeal, the Federal Military Government enacted three Decrees, namely: No.37 of 1968, No.43 of 1968 and No.45 of 1968, all of which we will now examine.
(i) Decree No.37 of 1968 was enacted on July 29, 1968 and applies throughout the Federation. It provides for the investigation of the assets of public officers and other persons whether related to them or not. Sections 14 and 12 are relevant.
Section 14(1) repeals certain enactments including:-
(a) Decree No.51 of 1966; and
(b) Edict No.5 of 1967 as from July 29, 1968.
These, as will be remembered, are the contentious Decree and Edict we dealt with earlier and upon which the judge of the High Court was called to adjudicate.
Section 14(2) of Decree No.37 of 1968 is as follows:-
(2) It is hereby declared that –
(a) the repeal of any enactment or law by this Decree shall not affect any order, notice or other document made or thing whatsoever done under the provisions of any enactment or law hereby repealed, and every such order, notice or other document or thing so far as it is subsisting or in force at the time of the repeal shall continue or have effect by virtue of this Decree;
(b) any tribunal of inquiry established under any enactment or law repealed by this Decree and in being immediately before the making of this Decree shall, on its promulgation by any means thereafter, continue as if constituted by or under and for the purpose of this Decree, and matters uncompleted before any such tribunal or pursuant to any enactment or law hereby repealed, prepared and intended for presentation thereto shall, where necessary be continued or completed, either by the same or any other tribunal accordingly by virtue of this Decree.”

And section 12 provides for the validity and exclusion of the court’s jurisdiction. It reads:-
“12. The validity of any direction, notice or order given or made, or of any other thing whatsoever done, as the case may be under this Decree, or under any enactment or other Law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any Court of Law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.”
The effect of section 14 is that although subsection (1) repeals Edict No.5 of 1967, under subsection (2), the Tribunal of Inquiry about which this complaint arose is to continue its function, and all orders already made by it are validated and to continue to operate. On the other hand, the effect of section 12 is that despite the provisions of the Fundamental Human Rights in Chapter III of the Constitution, validity of orders, notices and directions made shall not be inquired into by any Court of Law.
(ii) Decree No. 43 of 1968 is dated August 28, 1968 and made to operate as from July 29, 1968; it applies to the whole Federation. It is short and the two sections are as follows:-
“1. The Investigation of Assets (Public Officers and Other Persons) Decree 1968 is amended with effect from its commencement:
(a) in section 12 by omitting all words from “or under any enactment” up to and including the words “whatsoever done”;
(b) in section 14(2) by inserting in paragraph (a) after the word “Decree” where it secondly occurs, the words “so however that the effect of this provision shall not affect any cause or matter pending before a court at the time of such repeal”.
2. This Decree may be cited as the Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree 1968 and shall have effect as hereinbefore provided and apply throughout the Federation.

As will be seen this Decree amended the last Decree, i.e., No.37 of 1968 as from the date it was made and the effect of the amendments was to withdraw the validity and preclusion from the courts which the last Decree had originally provided for. But it would appear that the object had not been achieved, for eight days later, and indeed on August 28, 1968 –
(iii) Decree No. 45 of 1968, the whole of which we had earlier set out in this judgment was passed on August 28, 1968. The provisions of this Decree have a far-reaching effect.
Section 1(1) validates all orders specified in the Schedule.
Section 1(2) refers specifically to Edict No.5 of 1967 (Western States) and validates the order by which the properties of the appellants are attached.
Section 1(3) provides a general cover validating all other orders, notices or documents made or given or anything done by virtue of any enactments within the contemplation of the Decree No. 45.
There can be no doubt of the importance of sections 1 and 2 of this Decree.
Section 2(2) is significant. This section purports to shut out completely any proceedings pending in court either at nisi prius or on APPEAL, in any court whatsoever, with respect to matters contemplated by the Decree. Such proceedings, it stated, shall abate as from the date of commencement of the Decree.
Applying this to the present case, the section purported to shut out the appeal filed on December 27, 1967 to the Western State Court of Appeal and, as we observed earlier, the section was relied upon before that court. After hearing arguments on the ousting of its jurisdiction, the Court of Appeal upheld the validity of the Decree and declared itself without jurisdiction to hear the appeal. Not only are the provisions of the Decree No. 45 of 1968 designed to oust the jurisdiction of the courts generally, but there was a schedule tied to sections 1(1) and 1(2) of the Decree. These are very important as we shall point out later. Part A of the Schedule sets out, inter alia, the names of particular officers whose forfeiture orders, however made, are validated. The name of the first appellant is shown as item No. 4(a). Part B of the Schedule contains the names of officers and other persons affected by the Decree and the names of the appellants appear as item No.5.

It is therefore clear what the Decree (No. 45 of 1968) sets out to do and that the object of the legislature was directed to the appellants and their pending appeal.
It is in this context that the question has arisen whether this Decree is valid or not. In effect, is the validity of Decree No.45 of 1968 pronounced by the Western State Court of Appeal correct? This is the substance of the appeal before us. Counsel on both sides agreed that to determine the validity of this Decree, it is necessary to determine the basis of the power of the Federal Military Government to make laws. To do this, we must of necessity examine the events in the country as from January, 1966 and how the Federal Military Government came into being.

In this argument before us, the Attorney-General for the Western State, on behalf of the respondents, said what took place in January, 1966 was a revolution and the Federal Military Government is a revolutionary government which seized power on January 15, 1966. It accordingly has an unfettered right from the start to rule by force and by means of Decrees and therefore nothing from the Republican Constitution of 1963 can be implied into the new mode of ruling the country; that section 3(1) of Decree No.1 of 1966 gave the Federal Military Government unlimited power of legislation on any subject either by Decree or by part of the Constitution which has not been abrogated; that the doctrine of necessity which was propounded by counsel for defence, and about which we say more later, does not apply. Further, that section 6 of Decree No. 1 of 1966 (see above) must be construed literally and should not be construed to doubt the validity of a decree as this court has interpreted an edict in the case of Adamolekun v. The Council of the University of Ibadan (1968) N.M.L.R. 253 and that that interpretation can only be limited to an Edict. In short, the submission is that there is nothing in the Constitution which can make a decree void. He further submitted that once a document purporting to be a Decree is signed by the Head of the Federal Military Government it cannot be challenged and no court has any jurisdiction to adjudicate on its validity. The order of August 31, 1967 by the chairman of the Assets Tribunal, he submitted, was validly made since Decree No. 45 of 1968 made on August 28, 1966 has validated everything done under it.
Chief Williams, counsel for the appellants, submitted that the Federal Military Government is not a revolutionary government but a constitutional interim government, which came into being by the wishes of the representatives of the people, and whose object is to uphold the Constitution, excepting so far as it had to derogate from it under the doctrine of necessity whereby it was granted power. That thus the Federal Military Government assumes the continued existence of the Constitution and in its Decree No. 1 of 1966 (supra) impliedly provided for a separation of powers between the legislature, the executive and the judiciary as did the Constitution of Nigeria; that this must be perpetuated unless necessity otherwise arose compelling it under section 3 of Decree No. 1 of 1966 to make laws by Decree “for the peace, order and good government of Nigeria on any matter whatsoever.” This power, it was submitted, must not be read as unfettered powers to legislate to amend the Constitution save in so far as properly justified by the doctrine of necessity. In regard to section 6 of Decree No.1 of 1966 and the Adamolekun’s case (supra), Chief Williams submitted that section 6 of Decree No. 1 has to be read down as this court put it in Adamolekun’s to only not being able to challenge the legislative authority of a decree; that is, not to challenge the right of the Federal Military Government to make a law by way of a decree signed by the Head of the Federal Military Government as proved by sections 4 and 5 of Decree No. 1 of 1966. Further that a decree prevails over the Constitution only to the extent that the decree, if “otherwise” properly made, could amend the “Constitution, Finally, that the order Exhibit B made on August 31 1967 by the Chairman of the Assets Tribunal was not validly made, since Decree NO.45 of 1968 which sought to validate it (and thus implied that it was otherwise invalid) was a legislative act which impinged upon the sphere of the judiciary and to that extent invalid as an executive interference into the sphere of the judiciary.

Now, to understand, the doctrine of necessity so propounded, we must go into history. Nigeria before January 1966, under its Republican Constitution of 1963 provided, inter alia, for:-
(i) A President of the Republic, section 34;
(ii) A bi-cameral Legislature Section 41:
(iii) An executive, known as Council of Ministers, sections 84, 87, etc., and
(iv)A Judiciary vested with full judicial powers, section 111 et seq.
All these functioned normally until January 15th, 1966, when a section of the army rebelled in different parts of the country. Two Regional Premiers were put to death and the Prime Minister of the Federation and one of his Ministers were captured and taken to an unknown destination; also some senior members of the army were killed. The events which bestirred the country were unprecedented and serious constitutional upheavel was created. The head of the army rallied his men round and the rebels were arrested. The Prime Minister’s whereabout was unknown; the Minister who was apparently next to him and had previously acted for him, was out of the country. The President of the Republic was also away from the country, but there was an acting President. It appeared however that the Council of Ministers met without the Prime Minister and decided to hand over the Administration of the country to the Armed Forces before the situation got worsened. The full text of the Acting President’s speech delivered on January 16, 1966, is contained in Government Notice No.147 dated January 16 1966 and it reads:-
“FULL TEXT OF HIS EXCELLENCY THE ACTING PRESIDENT’S SPEECH
“I have tonight been advised by the Council of Ministers that they had come to the unanimous decision voluntarily to hand over the Administration of the country to the armed forces of the republic with immediate effect. All ministers are assured of their personal safety by the new administration. I will now call upon the General Officer Commanding Major-General Aguiyi-Ironsi, to make a statement to the nation on the policy of the new administration. It is my fervent hope that the new administration will ensure the peace and stability of the Federal Republic of Nigeria and that all citizens will give them their full co-operation.”
This statement by the Acting President was broadcast to the nation. Following this, and also broadcast and published as Government Notice No.148 of the same date, (January 26, 1966), is the speech of Major-General Aguiyi-Ironsi. It reads, in part:-
FULL TEXT OF THE SPEECH OF MAJOR-GENERAL J.T.U. AGUIYI-IRONSI, THE GENERAL OFFICER COMMANDING THE NIGERIAN ARMY.
”The Government of the Federation of Nigeria having ceased to function, the Nigerian Armed Forces have been invited to form an interim Military Government for the purposes of maintaining law and order and of maintaining essential services.
2. This invitation has been accepted and I, General J.T.U. Aguiyi-Irorisi, the General Officer Commanding the Nigerian Army, have been formally invested with authority as Head of the Federal Military Government, and Supreme Commander of the Nigerian Armed Forces.
Suspension of certain parts of the Constitution.
The Federal Military Government hereby decrees:
(a) The suspension of the Provisions of the Constitution of the Federation relating to the Office of President, the Establishment of Parliament and of the Office of Prime Minister.;
(b) The suspension of the provisions of the Constitution of the Regions relating to the establishment of the Offices of Regional Governors, Regional Premiers and Executive Councils, and Regional Legislatures …..”

Thus the Federal Military Government Notice came into being and assumed power and responsibilities. It is to be noted from the Government Notice (No. 148) set out above that the invitation to the Armed Forces, which was duly accepted, was to form an interim Military Government and it was made clear that only certain sections of the Constitution would be suspended. It was evident that what the Government thus formed is an interim government which would uphold the Constitution of Nigeria and would only suspend certain sections as the necessity arises.

At this stage it is incumbent on us to clear one point. It must be accepted that the Council of Ministers validly met at the time. The Acting President accepted that they met and they gave him an assessment of the situation. In our view, the Council of Ministers could validly meet in the absence of the Prime Minister, since the evidence available at the time was that the Prime Minister was alive but circumstances made it impossible for him to be present. If he had been killed or he was dead at the time, the situation might have been different.

It is apt to point out, however, that the Attorney-General does not accept the doctrine of necessity, nor does he seek to argue whether or not necessity has been shown in this case. He bases his case on the fact that necessity, or rather the doctrine of necessity, does not arise for our consideration. We understand him to say that question of necessity only arises with Colonial Governments, as we stated earlier, what happened in Nigeria in January 1966, in the submission of the Attorney-General, was a revolution.
It is no gainsaying that what happened in Nigeria in January 1966 is unprecedented in history. Never before, as far as we are aware has a civilian government invited an army take-over, or the armed forces to form an interim Government. We disagree with the Attorney-General that these events in January 1966 are tantamount to a revolution. As Chief Williams for the appellants puts it, quoting from the Shorter Oxford Dictionary, a revolution occurs when ”there is an overthrow of an established government by those who were previously subject to it” or ”where there is a forcible substitution of a new ruler or form of Government”. These, from the facts, did not take place in Nigeria in 1966 as the situation to which we have previously referred – a rebellion by some members of the Armed Forces – caused the Acting President, with the advice of the Council of Ministers in the absence of the Prime Minister, to hand over power to the Armed Forces. We venture to put the attitude of the Acting President and the Council of Ministers to the head of the Army thus – your men have started a rebellion, which we fear may spread; you have the means to deal with them. We leave it to you to deal with them and after this, return the administrative power of the Government to us.

Cases of revolution abound in history and in law, and an example is to be found in Pakistan where there is a proclamation annulling the Constitution of the country. In Uganda v. Commissioner of Prisons (1966) E.A.L.R. 514; the Pakistan case of the State v. Dosso (1958), 2 P.S.C.R. 180, was referred to at page 538 in the following terms:
“That the President’s proclamation of October 7, 1958 by which the Constitution of 1956 was annulled and Martial Law was proclaimed constituted an ‘abrupt political change,’ not within the contemplation of the said Constitution, that is a revolution. A victorious revolution is an internationally recognized legal method of changing a constitution. Such a revolution constitutes a new law creating organ, by virtue of having become a basic law creating fact. Laws which derive from the ‘old order’ may remain valid under the ‘new order’ only because validity has expressly or tacitly been vested in them by the new constitution, ‘and it is only the contents of these norms that remain the same, not the reason of validity’. Further no jurist would maintain that even after a successful revolution, the old constitution and the laws based thereupon remain in force on the ground that they have not been nullified in a manner anticipated by the old order itself“.
The Attorney-General submits that both the legislative and executive were swept away by the uprising in January, 1966 and the judiciary was altered by prescribing a new code of appointing Judges; all these he said were nothing short of revolution; that the Republican Constitution of 1963 no more exists except and in so far as the revolutionary government decreed: that the authority of the Federal Military Government is not derived from the 1963 Constitution but from the revolution itself. He also relied on Hogde v. The Queen (1883) 9 A.C. 117. The Attorney-General argued further that there is no provision in the 1963 Constitution enabling the Acting President, in the absence of the Prime Minister, even with the advice of other Ministers of the Council of Ministers, to hand over the administration of the country to the Armed Forces of the Republic. What happened, he said, was that the Government “having ceased to function” agreed to abdicate its powers and that therefore there was a revolution.

We think it wrong to expect that constitution must make provisions for all emergencies. No constitution can anticipate all the different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by section 84 of the Constitution and we think in a case of emergency he has power to exercise it in the best interest of the country, acting under the doctrine of necessity. Moreover, it must be remembered that it is not a case of seizing of power by the section of the Armed Forces which started a rebellion. The rebellion had been quelled; the insurgents did not seize power nor was it handed over to them. But the state of affairs in Pakistan to which The State v. Dosso (supra) refers is different. In Pakistan the President had issued a proclamation annulling the existing Constitution. There was a disruption of the Constitution and the national legal order by an abrupt political change not contemplated by the Constitution. Such a change is a revolution.
The submissions by the Attorney-General
eave no room for the doctrine of necessity. He argued that as there was a revolution in the country in 1966, it is not permissible to read into the actions of the Federal Military Government any fetter arising out of the Republican Constitution of 1963 and the Government could legislate as it thought fit and could suspend and modify portions of that Constitution as it thought fit; that section 3(1) of Decree No.1 of 1966 should be given its plain meaning and nothing should be read into it: that also the proviso to section 1 of the Constitution should be given its literal meaning and that it puts no limitation on the power of a decree and in effect a decree automatically prevails over the Constitution whether or not it is specifically or impliedly inconsistent with it. He referred us in support, to the case of Smith v. East Elloe Rural District Council (1956) A.C. 736 where at page 751 Viscount Simonds said:
“My Lords, I do not refer in detail to these authorities only because it appears to me that they do not override the first of all principles of construction, that plain words must be given their plain meaning. There is nothing ambiguous about paragraph 16: there is no alternative construction that can be given to it; there is in fact no justification for the introduction of limiting words such as “if made in good faith”, and there is the less reason for doing so when those words would have the effect of depriving the express words “in any legal proceedings whatsoever” of their full meaning and content.”

The cases Edinburgh Railway Corporation v. Wauchope (1842) 8 E.R. 279 and Lee and Another v. The Bude and Torrington Junction Railway Corporation (1871) 6 L.R.C.P. 576 were referred to in support of the principle that, if two statutes are inconsistent, the latter of the two statutes prevails; and as such if Decree 45 of 1968 is inconsistent with Decree No. 1 of 1966, the Decree of 1968 must prevail.
We do not doubt the validity of these cases but the real answer is, to our mind, to be found in the dicta of Lord Reid in the case Anisminic Limited v. The Foreign Compensation Commission and Another (1969) 2 W.L.R. 163 at page 168 where he said:
‘The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that “determination” means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity, you are not questioning the purported determination – you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned.”
As we stated earlier in this judgment, the Attorney-General does not accept the presumption of necessity. We have earlier on pointed out that in our view the Federal Government is not a revolutionary government. It made it clear before assuming power that the Constitution of the country still remains in force, excepting certain sections which are suspended. 

We have tried to show that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of the Constitution and Decrees. The necessity must arise before a decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country ceases to have effect as a superior norm. From the facts of the taking over, as we have pointed out, the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing effectively with the situation which has arisen, and its main object is to protect lives and property and to maintain law and order. As Willes, J. put it in Phillips v. Eyre (1871) 6 L.R.Q.B 1 at page 16:

“This perilous duty, shared by the Governor with all the Queen’s subjects, whether civil or military, is in an especial degree incumbent upon him as being entrusted with the powers of government for preserving the lives and property of the people and the authority of the Crown; and if such duty exists as to tumultous assemblies of a dangerous character, the duty and responsibility in case of open rebellion are heightened by the consideration that the existence of law itself is threatened by force of arms and a state of war against the Crown established for the time. To act under such circumstances within the precise limits of the law of ordinary peace is a difficult and maybe an impossible task and to hesitate or temporize may entail disastrous consequences.”
In the case of Madzimbamuto v. Lardner-Burke (1969) 1 A.C. 645 at page 740 Lord Pearce, on the doctrine of necessity said:
“The principle of necessity or implied mandate is for the preservation of the citizen, for keeping law and order, rebus sic stantibus, regardless of whose fault it is that the crisis had been created or persists.”

Reference may also be made to the Cyprus case of Attorney-General for the Republic v. Mustafa Ibrahim of Kyrenia (1964) 3. Supreme Court of Cyprus 1. In that case owing to the immutable nature of the constitution of Cyprus and the political secession of the Turkish members of the judiciary and the legislature, the courts and the parliament were unable to function. The Greek members of Parliament took upon themselves to pass a “law” providing for a new Supreme Court with no racial quorum, such as had been provided by the Constitution. The new court, staffed by Greek Judges only, was set in motion and started to function. It was contended that the “law” being unconstitutional was a nullity; but all the three Judges held that the “law” should be read into the Constitution, by applying the doctrine of necessity, and that the new court was only constituted. We quote a portion of the judgment of Josephides, J. where he said as follows:
“Faced with the non-functioning of the two superior courts of the land and the partial breakdown of the district courts, the Government had to choose between two alternatives, viz, either to comply with the strict letter of the constitution (the relevant articles being unalterable under any condition), that is, cross its arms and do nothing but witness the complete paralysis of the judicial power, which is one of the three pillars of the State (vide Prof. Alessi, ubi supra, at pages 218-9; or to deviate from the letter of the Constitution, which had been rendered inoperative by the force of events (which situation could not be foreseen by the framers of the constitution), in order to do what was imperatively and inevitable necessary to save the judicial power temporarily until return to normal conditions so that the whole State structure may not crumble down. I have no hesitation in arriving at the conclusion that in these exceptional circumstances it was the duty of the government through its legislative organ, to take all measures which were absolutely necessary and indispensable for the normal and unobstructed administration of justice. I agree with the submission of respondent’s counsel that the measures taken should be for the duration of the necessity and no more. This is also conceded by the Attorney-General of the Republic. The question now arises: Did the legislature, do what was absolutely necessary in the circumstances or did it exceed it?”
By recognizing the fact that there is a doctrine of necessity we do not alter the law, but apply it to facts as they do exist. We are unable to find that the facts of cases cited to us by the Attorney-General do fit in with the events which took place in this country in January, 1966: but they are basically cases of revolution. In this connection and before us we conclude this particular aspect of the matter; we would like to refer to the case of Uganda v. Commissioner of Prisons (1966) E.A.L.R. 514, where there were no pretentions on the part of the Prime Minister who abolished the Constitution of the country in the National Assembly and submitted a new one, which installed him as Executive President with power to appoint a Vice-President contrary to the Constitution of the country – actions which could only appropriately be described in law as a revolution.
Now we come to consider the effect of Decree No.45 of 1968 which Chief Williams, for the appellants has attacked as a usurpation of judicial power. The questions we ask ourselves are, was the passing of this decree a performance of legislative function as envisaged by section 3(1) of Decree No.1 of 1966? and does it go beyond the requirements or demands of the necessity of the case? Chief Williams for the appellants has argued that the effect of Decree No.45 of 1968 was a usurpation of judicial power as it deprived the appellants of their properties without compensation by legislative act. He referred us to section 31 of the Republican Constitution 1963 and to section 31(3)(b) which reads:
“Nothing in this section shall be construed as affecting any general law ….. (b) for the imposition of penalties or forfeitures for breach of the law, whether under civil process or after conviction of an offence.”
The subsection, he said, only contemplated deprivation of property as punishment if the deprivation was to be without compensation; the section was dealing with general law and not ad hominem laws.
We must here revert again to the separation of powers, which the Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary. Our Constitution clearly follows the model of the American Constitution. In the distribution of powers the courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the State. See Attorney-General for Australia v. The Queen (1957) A.C. 288 at page 311, etc. In Lovell v. United States (1946) 66 Supreme Court Reports 1073 at page 1079, Mr. Justice Black said as follows:  
“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.”
These principles are so fundamental and must be recognised. It is to define the powers of the legislature that Constitutions are written and the purpose is that such powers that are left with the legislature be limited; and that the remainder be vested in the courts.

We have earlier pointed out the crushing effect of Decree No.45 of 1968 on the individuals it named, including the appellants. Part A of the Schedule to the Decree names particular individuals and mentions specific orders made concerning these individuals including the first appellant whilst Part B of the Schedule mentions names of particular individuals whose properties are affected as well as the dates of the Orders made against them on their properties, including the names of both appellants. The particular order, Exhibit B, which they are contesting, was specifically mentioned. Earlier, Decree No.37 of 1968 sought to repeal Edict No.5 of 1967, but section 14(2)(a) left unaffected the order made directly against the appellants. At the time it was passed, the appeals of the appellants were pending in courts. Section 12 stifled any further rights of the appellants to continue their appeal, thus depriving them of their constitutional rights. Later, Decree No.43 of 5 1968 purported to restore their rights but it was quickly followed by No.45 of 1968 which, by section 2(2) stipulates that all pending matters before any court in respect of all matters, including the appeals of the appellants, are abated as from the date the Decree was passed, and validated all the orders which affected the second appellant who had not been included in the earlier Decree No.37 of 1968 not being a public officer. It also validated all orders and decrees which had been wrongly made, all undoubtedly pointing to the appellants. These enactments are directed against certain named individuals with the aim of punishing them or depriving them of their properties. These individuals were not being dealt with as general members of the public for whom laws are passed generally. It is therefore necessary to consider more closely the nature of the legislation. It was this type of legislation that was being dealt with in Uyanage and Others v. The Queen (1967) 1 A.C. 259 at page 289-290; (1966) All E.R. 650 at 659 when Lord Pearce said in his judgment as follows:-
“In so far as any Act passed without recourse to section 29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires. It goes without saying that the legislature may legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence. But the Acts of 1962 had no such general intention. They were clearly aimed at particularly known individuals who had been named. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law, is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the Judges, the law should revert to its normal state. The first Act was wholly bad in that it was a special direction to the Judiciary as to the trial of particular prisoners who were identifiable and charged with particular offences on a particular occasion …As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity.”
Such act of usurpation was considered an infringement of the Constitution, as Lord Pearce at page 291 of the Report continued:
“One might fairly apply to these Acts the words of Chase, J., in the Supreme Court of the United States in Calder v. Bull (1789) 3 Dallas U.S.S.C. 386;
These acts were legislative judgments; and an exercise of judicial power.”
He further continued:-
“Blackstone in his Commentaries Vol. 1 (4th Edn.) p. 44 said:-
‘Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law.’
If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the Judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had the power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringed the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’
Among other cases which we have also considered for what is a judicial power may be mentioned Shell Company of Australia Limited v. Federal Commissioner of Taxation (1931) A.C. 275, and in respect of usurpation of judicial powers, we would refer to Buckley v. Attorney-General of Eire (1950) Irish Reports 67 where O’Byrne, J. said at page 84:
“There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Article 6. The effect of that article and of Articles 34 to 37, inclusive, is to vest in the courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas to dismiss the plaintiff’s claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution as being an unwarrantable interference by the Oireachtas with the operations of the courts in a purely judicial domain.”
We are not unmindful of the fact, that not all enactments of this nature are judicial legislation. The Attorney-General cited some cases showing instances of legislation which though they have their faults were held not to intrude on the sphere of the judiciary: every case must depend upon the facts surrounding it. Cases to which we were referred like (1) Roche v. Kronheimer (1921) 29 Q.L.R. 329; (2) Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonwealth (1943) 67 C.L.R. 116; (3) Australian Communist Party. v. The Commonwealth (1950) 83 C.L.R. 1. In these Australian cases the enactments were found by the courts to have been justified on the facts and in the circumstances postulated by them. And in Kariapper v. Wijesinha and Another (1968) A.C. 717 it was held that a Ceylon Act was intra vires. As this is a case more favourable for the submissions made to us by the Attorney-General, we will consider it more fully. It is the case where an Act passed by the Ceylon Parliament imposed disabilities upon any person “to whom the Act applies” and “a person to whom the Act applies” was defined to mean “each person specified in the schedule to this Act in regard to whom the relevant commission in its report found that any allegation or allegations of bribery had been proved.” The disabilities imposed by the Act extended to disqualification for seven years from registration as an elector and from voting at elections; disqualifications for seven years from being a candidate for election to the House of Representatives or to any local authority; disqualification for seven years from being elected or appointed as Senator or member of House of Representatives or a member of any local authority or sitting and voting as such: and disqualification for all time from being employed as a public servant. The appellant in the case and others were Senators and were concerned in the matter to which the Act referred. As we stated earlier, the Act was held not to be an exercise of judicial power. We have considered this case closely and comparing it with the present case on appeal we have come to the conclusion that the facts were clearly different. The reasoning in the case was that the Act was not a judicial usurpation for reasons stated in the judgment. Decree No.45 of 1968 was not in form of an alteration of any existing law but it was clearly a legislative sentence and the Decree was spent on the persons named in the Schedule.
We must once again point out that those who took over the Government of this country in 1966 never for a moment intended to rule but by the constitution. They did, in fact, recognize the separation of powers and never intended an intrusion on the judiciary. Section 3(1) of the Decree No.1 of 1966 does not envisage performance of legislative functions as a weapon for exercise of judicial powers, nor was it intended that the Federal Military Government should, in its power to enact Decrees, exceed the requirements or demands of the necessity of the case. In the present case we are satisfied that Decree No.45 of 1968 did go beyond the necessity of the occasion.
The Attorney-General has argued that validation laws are normal legislative functions and are not usurpation of judicial power, even though they affected judgments given by the courts. Also, that it was common practice to enact laws, and they are valid, which oust the jurisdiction of the courts. He cited the Indian Divorces (Validity) Act 1921, Validation of Wartime Leases Act 1944, and submitted that, Acts of Indemnity have been passed to legalise acts which are of doubtful character performed during emergencies and the like – Phillips v. Eyre (supra) and Eshugbayi (Indemnity for Deportation) Ordinance passed in Nigeria 1931, He also referred to a law passed in Western Nigeria – The Constitution of Western Nigeria (Amendment) Law, 1963 reversing the Privy Council’s decision in Adegbenro v. Akintola (1963) A.C. 614.

We have examined all these enactments and it is of the utmost importance to note that each of these enactments could not be said to have gone beyond the exigencies of the necessity of the occasion which brought them about. In the present case, we observe that no argument was put forward as to whether or not the Decree (No. 45 of 1968) goes beyond the actual demand or exigencies of the necessity of the occasion. Clearly, necessity for the Decree was not shown or established throughout the proceedings. Further, as stated by counsel for the appellant, the amendment of section 33(10) of the Constitution of Western Nigeria (Amendment) Law 1963 following the Privy Council decision in Adegbenro v. Akintola (supra) was never tested in court. Neither the legislative competence of the legislature nor the legislative validity of the law has been put to the test.
At the passing of Decree No.37 of 1968, the present case was pending in the Western State Court of Appeal. Although the Decree repealed Edict No.5 of 1967 and purported to withdraw the Constitutional rights to challenge by way of action and prerogative writs in any court of law provided for in Chapter III of the Constitution dealing with Fundamental Human Rights. The Decree refrained from touching the order made against the appellants. It would appear that more thoughts were given to this enactment and Decree No.43 of 1968 followed. But Decree No.45 of 1968 is the pith and meat of the matter.

It validated everything that was wrong or wrongly done, referred specifically to the names of the appellants in its Schedule, without defining a new ‘public officers’. Validated orders made against the second appellant, who according to section 13(1) of Decree No.37 of 1968, could not by any stretch of imagination be considered a public officer. In an attempt to crown the efficacy of the Decree, it purported to shelve all actions and appeals pending before any court. In short, it stops the pending appeal of the appellant in the Western State Court of Appeal. We have come to the conclusion that this Decree is nothing short of legislative judgment, an exercise of judicial power,. It is in our view ultra vires and invalid.
We are in no doubt that the object of the Federal Military Government, when it engaged in this exercise, is to clean up a section of the society which had engaged itself in corrupt practices – those vampires in the society whose occupation was to enrich themselves at the expense of the country. But if, in this pursuit, the Government, however well-meaning, fell into the error of passing legislation which specifically in effect, passed judgment and inflicted punishment or in other words eroded to the jurisdiction of the courts, in a manner that the dignity and freedom of the individual, once assured, are taken away, the courts, must intervene. Every case, we reiterate, must be considered on its own facts and the materials placed before us in this matter lead to no other conclusion than that the provisions of the Decree No.45 of 1968 are such as are not reasonably necessary to achieve the purpose which the Federal Military Government set out to fulfil.

This appeal will therefore be allowed and both the Edict No.5 of 1967 and the Decree No.45 of 1968 are declared ultra vires; they are null and void.
Now, we recorded during the argument before us, that counsel on either side, if this case were to be sent back to the Western State Court of Appeal to hear the arguments on the issue before the High Court, would have nothing more to add to their arguments and submissions before us. No useful purpose will be served therefore in sending the case back. We have already pointed out that we cannot support the judgment of the Judge of the High Court and also that the preliminary objection to the jurisdiction of the Western State Court of Appeal was wrongly upheld.
It follows that the order dated August 31, 1967, made by the Assets Tribunal and which was admitted in evidence as Exhibit B in the certiorari proceedings must be quashed, and is hereby quashed.

The orders for costs made both in the High Court and in the Western State Court of Appeal are hereby set aside. The appellants are entitled to costs in the two courts, which we now assess at seventy-five guineas in the High Courts and fifty guineas in the Court of Appeal respectively. Costs in this court in favour of the appellants are assessed at 100 guineas.

Held

Order quashed. Edict No. 5 of 1967 and Decree No. 45 of 1968 declared ultra vires and void.

Ene Ene Oku v. The State (1970)

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


Reported:

– (1970) All N.L.R 62

– (1970) LPELR-SC.175/1969


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.

In the judgement the learned trial judge observed as follows:-
“In view of Mr Oku’s defence one would have thought that the most appropriate thing for him to do was to plead guilty and apologise. But Mr Oku pleaded not guilty and was represented by counsel. He elected to offer his explanation through his counsel”

The judge then rejected the explanations of the appellant for being absent from court on the 5th June, 1969. He ‘considered the case of Izuora v. Regina [1953] A.C. 327 where the Privy Council considered the provisions of Order XVI, rules 11 and 19 of the Rules of the Supreme Court of Nigeria (Which are in pari materia with rules 4 and 13 of Order XVI of the Eastern Nigeria High Court Rules) and observed that Izuora’s conduct did not constitute a contempt of court. The learned trial judge observed in respect of Izuora’s case as follows:-

“Their Lordships also held that what Izuora did was discourtesy and did not go over the border to criminal contempt of court. But I think Izuora’s case is distinguishable from the present case. In that case he had finished conducting the case and therefore the need for him to appear was not as urgent as in this case. That case was a civil case while this is a serious criminal case.
Again in Izuora’s case a sentence of imprisonment was imposed which was not provided for under rule 19 of Order XVI of the Supreme Court Rules under which the learned judge acted. This seems to be from the speech of Lord Tucker, what weighed on the mind of the Privy Council. “
At the end of the judgement he stated as follows:-
“I therefore find that the defendant has violated the provisions of Order XVI, rule 4 of the High Court Rules, 1955”.

On the appeal before us a number of grounds of appeal were filed and argued on behalf of the appellant but it is only necessary to deal with one of them which states:-

“3. The learned judge misdirected himself in law in that having initiated proceedings under Order XVI, rule 4 of the High Court Rules (E.R.) he proceeded to found his judgement, as stated by him in the first paragraph thereof, as on a “contempt of court.”
In the course of the argument of this ground of appeal by learned counsel for the appellant, Mr. Ekong, Senior State Counsel, who appeared for the respondent, frankly told the Court that he was not longer supporting the conviction of the appellant. We think he took the wisest step in the circumstances but nonetheless in view of the importance of this matter we propose to write a judgement.
It is beyond doubt that what was tantamount to a criminal charge was framed by the learned trial judge and read over or caused to be read over to the appellant. He was then requested to, and indeed did, plead to that charge. In that charge the conduct of the appellant is stated to have breached the provisions of Order XVI, rule 4 of the High Court Rules.

The rule reads as follows:-
“Every solicitor who shall be engaged in any cause shall be bound to conduct the same on behalf of the plaintiff or defendant as the case may be for whom he shall have so engaged, until final judgement, unless allowed by the Court for any special reason to cease from acting therein; but he shall not be bound, except under express agreement, or unless re-engaged to take any proceedings in relation to any appeal from such judgement.”

At this juncture it is well to refer to a point which was raised before the learned trial judge concerning the import of this rule. It was submitted on behalf of or by the appellant that the rule in envisaging a “cause” in contra-distinction to a suit does postulate that an application for bail for an accused person constitutes by itself cause without necessarily including the conduct of the entire defence. We think that the submission is misconceived. Whilst we are not prepared to say that a legal practitioner may be instructed only for purposes of applying for bail for an accused person we think it right to point out that by virtue of the definition of “cause” in section of the High Court Law, Cap. 61 (Laws of Eastern Nigeria, 1963, operative in the South Eastern State), a criminal proceeding is implied thereby. On the 5th June, 1969, when the trial of the accused Jerome Agabi commenced, the application for bail had not yet been disposed of and had in fact been adjoined to that date. A failure to attend court on that date, even if it be merely for the purpose of applying for the bail of the accused, is clearly envisaged by Order XVI, rule 4. The learned trial judge however did not deal with the matter on that basis but seemed, for reasons which are not clear from the records, to take the view that the appellant was retained for the entire defence of the accused person although it is surprising that the accused himself said nothing on this point.

In the proceedings on appeal, the learned trial judge manifestly dealt with the appellant as if he had been charged with contempt of court and exercised a summary jurisdiction which in appropriate cases is exercisable by a superior court of record such as the High Court. The power to punish summarily for a contempt in the face of the court is ‘undoubted and when a contempt is committed in facie curiae a superior court of record is entitled to punish it by fine and/or imprisonment as part of the jurisdiction of the court to prevent brevi manu any attempt to interfere with the administration of justice. As Cockburn, C.J. said in The Queen v. Lefroy [1873] L.R. 8. Q.B. 134 at p.137:

“It is perfectly true that it is laid down by authority, and reason shews the correctness of the rule, that all courts of record have power to fine and imprison for any contempt committed in the face of the Court; for the power is necessary for the due administration of justice, to prevent the Court being interrupted… In the case of the superior courts at Westminster, which represent the one supreme court of the land, this power was coeval with their original constitution, and has always been exercised by them.”
See The Queen v. Judge of the Brompton County Court and Vague [1893] 2 Q.B. 195; also the recent English case of Morris & Ors. v. Master of the Crown Office (Times, 11th February, 1970 (p.13) Court of Appeal).

Apart from this power however, contempt of court is punished by attachment or committal and the procedures for these are well known. In Joseph Izuora v. The Queen (supra), the appellant there had failed to appear in court in order to take the judgement in a case in which he had appeared for one of the parties, despite the warning of the judge that he should not be absent. He was thereafter dealt with for contempt of court and convicted therefore. On appeal from a conviction in such circumstances, the Privy Council (Lord Tucker) observed at p.336 as follows:-

“It is not every act of discourtesy to the court by counsel that amounts to contempt not his conduct which involves a breach by counsel of his duty to his client necessarily in this category. In the present case the appellant’s conduct was clearly discourteous… and it may perhaps have been in dereliction of his duty to his client but in their Lordships’ opinion it cannot properly be placed over the line that divides mere discourtesy from contempt.”
We have already referred in the course of this judgement to the conduct of the appellant which is being impugned. We are clearly of the opinion that whilst the appellant herein may have been guilty of dereliction of his duty to his client by failing to appear for the application for bail, that is however how the learned trial judge dealt with the matter and we can find nothing on the record to justify any view that he committed a contempt of the court.

This, however, is not all there is to the appeal. The learned trial judge made it clear from the beginning of the proceedings appealed that he was dealing with the appellant for a breach of Order XVI, rule 4 of the Rules of Court Order XVI, rule 13 of the same Rules provides as follows:-

“Any solicitor who commits any breach of any of the provisions of this order or who fails to comply with any of its provisions for which breach or non-compliance a specific penalty is not provided shall be liable for a first offence to a fine not exceeding fifty pounds without prejudice to the powers of the Court to suspend any solicitor from practising in any court within the jurisdiction of the Court.”

We have already pointed out that Order XVI, rule 4 applies as well to criminal proceedings and it follows from the provisions of these rules that a breach of rule 4 incurs the liability “for a first offence to a fine not exceeding ‘a350 without prejudice to the powers of the court to suspend… from practising in any court within the jurisdiction of the court.” (See Order XVI, rule 13).

In the case in hand, the learned trial judge took the view, wrongly in our judgement, that Order XVI, rule 4 deals with contempt in facie curiae. With respect, it does not. If, as was contended, the solicitor did not conduct the cause for which he was engaged by a party, then he would incur the liability prescribed by Order XVI, rule 13. That rule clearly involves a conviction for, or finding guilty of, an offence and it is elementary law that in those circumstances the guilt of the person charged must be proved according to the law and that until this is so proved he could not be held liable. We take the view therefore that proceedings for contravention of Order XVI, rule 4 are proceedings for a criminal offence and in the holding of such proceedings the provisions of section 285 of the Criminal Procedure Act dealing with the manner of hearing must apply and were not applied here by the learned trial judge.

We observe that in concluding his judgement the learned trial judge had refrained from using words such a “guilty” or “conviction” or cognate expressions. We are not in any doubt, however, as to the substance of the entire proceedings; the appellant was asked to plead whether he was guilty or not and he did then plead “Not Guilty” and the enquiry was to ascertain the rightness of his plea. The law should be, and indeed is, able to encompass the subtle as well as the obvious infraction of it and a finding of guilty of a criminal offence where the procedure prescribed by law has not been followed in the preceding investigation, whatever be the phraseology in which the finding is couched, cannot be allowed to stand.

We have set out briefly the introductory parts of the two warrants issued for the arrest of the appellant on the 5th June, 1969, and the 9th June, 1969. Both warrants refer to complaints having been made on oath against the appellant. No such evidence was shown to exist; at any rate nothing appears to support this on the records of appeal before us. We bear in mind that the judge ordered the appellant to be arrested with a bench warrant but both warrants used in arresting him on both occasions were clearly not bench warrants and are clearly false to the extent that they were regarded as such. Where contempt of court is punishable brevi manu in court no warrant is necessary for the apprehension of the offender as his is always in court and the contempt is stated to have been committed coram judice. In other cases the proper procedure of apprehension or arrest, charge, prosecution, etc., must be followed and if followed will obviate the necessity of having to amend the processes in so distasteful a way as had happened in this case.

We conclude that for reasons appearing in this judgement, this appeal must be allowed. It is so allowed and the judgement appealed from (Charge No. C/2C/69 High Court, Calabar) involving the conviction and sentence of the appellant is set aside. We order that in its place an order of discharge and acquittal be entered in favour of the appellant and if the fine of N11 has already been paid by him, it should be refunded forthwith.

Held

Appeal allowed: judgement of High Court set aside: order of discharge and acquittal entered in favour of appellant.