In The Matter Of The Constitution Of The Federation V. Re G.m Boyo (1970)

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COKER, J.S.C. 

The applicant in this matter has lodged an appeal in this Court against, inter alia, the decision of Atake, J. (High Court, Warri) given in the course of his trial for contempt of court. He has now applied for orders that, pending the hearing and determination of his appeal, the proceedings before the High Court, Warri, should be stayed and also that notwithstanding the rules of this Court his appeal be heard and determined on the papers exhibited in his present application.

We were not told whether or not the primary circumstances leading to this case are in dispute and indeed it is not necessary to consider these circumstances for the purpose of this ruling. It is sufficient to point out that the substance of the charge against the applicant is that he tried by writing a letter to the Accountant-General of the Mid-West State to obstruct the payment out of money which the same judge had ordered to be so paid out.

The case itself concerns an alleged contempt of court as stated before, but the question whether it was contempt committed in the face of the court, entitling the court to deal with it brevi manu, or contempt committed not in the face of the court was settled before this Court, it being generally agreed that the contempt alleged was not committed in the face of the court. This point is fundamental to the present proceedings before us and it is well to point out that all the arguments before us and this ruling have proceeded on that basis.

As can be gathered from the affidavits before us, the applicants states that he has some grounds for his action but again we observe that we are not now concerned with this aspect of the case. The charge on which the applicant is being tried, as formulated by the learned trial judge himself, reads as follows:-

“Attempted to countermand or render nugatory the order of this Court dated the 22nd December, 1969 to the effect that the sum of ‘a313,708′ 6s’ 8d 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 this Court of the said amount of ‘a313,708  6s 8d, to enable the said Registrar to pay the said money to the Itsekiri Communal Land Trustees and Ugborodo Community as ordered by this Court.”

The applicant was arraigned before the court and apparently the charge was read to him so that he might plead thereto. The records do not show whether he pleaded or not but learned counsel appearing on behalf of the applicant, soon after the reading of the charge, objected to the learned trial judge hearing the case on the grounds that he, the judge, was so “intimately connected” with the case. The judge’s notes of the objection of counsel for the applicant are as follows:-

“Mr Aghahowa: Takes a preliminary objection to this case being heard in this Court. This Court is so intimately connected and concerned with this matter that it should not hear it. This Court (Atake, J.) may be required to give evidence. Nemo debet esse judex in sua propria causa.

The cause is Atake, J.’s cause both as to the contempt of the Court and as to the personal contempt of Atake, J. A likelihood of real bias exists.”

The learned trial judge delivered a ruling in which he observed that his court was the proper forum to try the applicant and ended his ruling as follows:-

“Authority also can be got in R. v. Gray [1900] 2A.B. 36. Objection is over-ruled. ”
As stated before, the appellant has appealed against that ruling and the present application is to preserve the status quo until that appeal is heard.

Before us learned counsel for the applicant refers to section 22 of the Constitution of the Federation of Nigeria, 1963, which, so far as is relevant to this matter, reads as follows:-
“22 (1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:
(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.
(4) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
(10) No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law:

Provided that nothing in this subsection shall prevent a court of record from punishing any person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefore is not so prescribed.”