Okonofua Vincent Omoijahe V. Uwesu Umoru & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C.

The main issue arising in this appeal relates to the power of a court to punish for a criminal contempt committed exfacie curiae. The appellant herein, a legal practitioner, had sued Uwesu Umoru (1st respondent) claiming aggravated damages for assault. When the writ, taken out in November,1989 was to be served on the 1st respondent at his workshop on 14 December, 1989, it was alleged that he assaulted and beat up the bailiff and the appellant who accompanied the bailiff to act as a pointer. In consequence of the alleged incident, the appellant brought an application before the High Court, Benin to have the 1st respondent committed to prison for contempt of court. The application was still pending before the court when the appellant yet again made another allegation against the 1st respondent, D.E. Emujieze and G.E. Onohwakpor, Chief bailiff and Assistant Chief Registrar respectively. The appellant alleged that the respondents interfered with the bailiff- potential witness in the committal proceedings. He brought another application to have the three respondents committed to prison for this contempt of court.

On being served with the committal papers each of the respondents moved the trial court to dismiss the appellant’s motion for committal against them. The 1st and 2nd respondents’ application was struck out for procedural error while that of the 3rd respondent proceeded to determination. After a hearing, the learned trial judge dismissed the application and held that she had jurisdiction to hear the application for committal under Order 42 of the High Court (Civil Procedure) Rules 1988 of Bendel State.

On appeal to the Court of Appeal, that court allowed the appeal of the present respondents. In the course of its judgment, the lower court held as follows:

“It is my humble view that the procedure of preferring a charge, taking a plea and proving the case against the alleged contemnor beyond reasonable doubt as laid down by the authorities, still applies and ought to have been followed in this case ….’

Barrister Okonofua Vincent Omoijahe was dissatisfied and has further appealed to this court.

At page 3 of the appellant’s brief of argument dated 25 November, 1992, the appellant raised three issues for determination in the appeal. These are:

1. Did the Learned trial judge exercise her discretion judicially and judiciously in holding that the appellant’s application of 19th March, 1990 for an order of committal for contempt of court against the respondents was properly before her and, if so was the Court of Appeal right in substituting its own discretion for that of the trial judge
2. Was the Court of Appeal right in holding that because the contempt of Court allegedly committed was committed exfacie curiae and amounts to criminal contempt, the High Court lacked jurisdiction to entertain same pursuant to Order 42(1) of the High Court (Civil Procedure) Rules 1988 of the former Bendel State notwithstanding that the specific offence allegedly committed was distinctly stated in the committal application and an opportunity afforded to the respondents to answer them
3. Was the cost awarded excessive in the circumstance having regard to the principle governing the award of cost

For his part the 1st respondent formulated four issues which read as follows:

(i) Whether the defendants (respondents) proved their case and were entitled to judgment.

(ii) Whether the Learned Justices of the Court of Appeal correctly directed themselves as to the mode of trial for contempt of court of allegations criminal in nature but not committed in the face of the trial court.

(iii) Whether their Lordships of the Court of Appeal made a correct approach to the applicability of decided cases and statute law, to the arguments proferred by both sides to the case.

(iv) Whether the cost awarded was not reasonably justifiable in a case hotly contested by both sides.

The 3rd respondent raised three issues at pages I and 2 of his brief of argument. These are:

(i) Whether the Court of Appeal was right or not in setting aside the judgment of the High Court of Justice Benin-City presided over by Oni-Okpaku (Mrs.) Judge, having regard to the judicial interpretation placed on Order 42 Rule 1 of the High Court (Civil Procedure) Rules 1988 (Applicable to the defunct Bendel State) by the Court of Appeal and, also having regard to all the relevant authorities relied upon by the said Court of Appeal in arriving at its decision.