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:
- 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
- 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
- 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.
(ii) Whether the Court of Appeal on the issue of costs, used its discretion judicially in awarding costs.
(iii) Whether the Court of Appeal rightly and properly formulated the issues for determination as arising from the ground of appeal and/or the entire proceedings in the trial court.
The issues raised by the parties are similar in content. I shall however consider this appeal on the basis of the issues formulated by the appellant.
I find it convenient to deal with the first two issues together. This is because the discussion of both issues is closely related.
ISSUES 1 and 2
The main issue here turns on the interpretation of Order 42 Rule 1 of the Bendel State High Court (Civil Procedure) Rules 1988. Rule 1 provides:
“1. The power of the Court to punish for contempt of Court may be exercised by an order of committal.
- An order of committal may be made by the Court where contempt of Court –
(a) is committed in connection with –
(i) any proceedings before the court;
(ii) criminal proceedings;
(iii) proceedings in an inferior court;
(b) is committed in the face of the court, or consists of disobedience to an order of the court, or a breach of an’ undertaking to the court; or
(c) is committed otherwise than in connection with any proceedings”.
The learned trial judge in the instant case, exercised her discretion to proceed with the committal proceedings in accordance with Order 42. It is indeed the view of the learned trial judge that Order 42 of the High Court (Civil Procedure) Rules, 1988 covers all cases of contempt whether civil or criminal, in curiae facie or ex curiae facie. The court below disagreed. In the course of its judgment it said thus:
“Rule 1 (1) makes it permissive for the High Court to proceed by way of committal. The Order does not exclude other forms of procedure. This is particularly borne out of the saving provisions of rules 3, 5 and 8. Order 42 notwithstanding, it is my 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 and. I dare say, in dealing with the first contempt allegations also.”
The principles of construction/interpretation of statutory provisions are well established. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. Judges are not called upon to apply their opinions of sound policy so as to modify or alter the plain meaning of statutory words, but where, in construing the general words the meaning of which is not entirely plain or clear, then there are adequate reasons for doubting whether the Lawmaker would have intended so wide an interpretation as would disregard fundamental principles. In such a situation the courts may be justified in adopting a narrower construction. See Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 A.C. 1014. It should be borne in mind that statutes are construed to promote the general purpose of the legislature/lawmaker. Judges ought not to go by the letter of the statute only but also by the spirit of the enactment.
Here, the wider interpretation of Order 42 of the High Court (Civil Procedure) Rules 1988 given by the appellant would appear to disregard fundamental principles with regard to criminal trials. In criminal trials the usual procedure for the apprehension, charge and prosecution of the offender must be followed. This is to ensure that an accused person receives a fair trial as guaranteed by the Constitution of this country. A construction of Order 42 Rule 1 which seeks to disregard this principle is not acceptable.
In the present case, it is not in dispute that the allegations against the appellants are criminal in nature. The alleged contempt was ex facie curiae. Therefore, what is in dispute herein is the mode of trial for such a contempt of court.
There are two types of contempt – that committed in facie curiae and that committed ex facie curiae. In the case of the second type, a charge and a plea are necessary and the accused is entitled to a fair hearing of the case against him. In both types of contempt, a trial is involved. See Awosanya v. Board of Customs & Excise (1975) 3 SC. 47. What separates one from the other is the procedure to be adopted.
For words or actions used in the face of the court, or in the course of proceedings, to be contempt, they must be such as would interfere with the course of justice. A superior court of record has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. It must once again be emphasised that the summary power of punishing for contempt should, however, be used sparingly and only in serious cases. See Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264 at 270; Arake v. Attorney-General (1982) 1 S.C. 153: Oku v. State (1970) 1 NLR 60. It is a power which a court must of necessity possesses, Its usefulness, surely, depends on the wisdom and restraint with which it is exercised.
In cases of contempt ex facie curiae 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 the facts surrounding the alleged contempt are so notorious as to be virtually incontestible. 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, he should not try the case himself. The matter must be placed before another judge where the usual procedure for the arrest, charge and prosecution of the offender must be followed. In Oku v. The State (supra) this court per Coker JSC held at page 68 that:
“Where the contempt of court is punishable brevi manu in court no warrant is necessary for the apprehension of the offender as he 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 … ”
(Italics for emphasis).
In other words, in the trial of criminal contempt exfacie curiae, an offender is entitled to the benefit of a full process of a criminal trial. The reason for this is obvious. Firstly, this is to ensure that the accused receives a fair hearing of the case against him. In the second place, the judge no doubt would have to rely on evidence or testimony of witnesses to events which did not occur in his presence. In Boyo v. Attorney-General of Mid- West (1971) 1 All NLR this court observed at page 353 of the Report thus:
;’These observations, to which we have referred, to our mind, apply both in cases of contempt 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 incontestible. 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.”
It is to be realised that in both types of contempt, some form of trial is conducted. In that sense it is correct to say that the court can make an order of committal in the situations specified by Order 42 Rule 1 of the High Court (Civil Procedure) Rules 1998 of the former Bendel State. Such an order of committal must be made after due hearing of the case against the accused. This can be summary in cases of contempt committed in the face of the court or through a trial only after framing of a charge and taking of a plea in cases of contempt not committed in the face of the court. Each type of contempt has its own procedure. Each type must be kept within its compartment.
In the instant case, it is not in dispute that the contempt in question was not committed in the face of the court. It was committed exfacie curiae. This does not attract summary trial. Here the offender is entitled to the benefit of a full process of a criminal trial. It cannot be contested that the judge would need evidence or testimony from prosecution witnesses and also from the accused and his witnesses in order to come to a just decision. There is clearly in my view no jurisdiction in the learned trial judge to exercise her summary jurisdiction in this case. The contempt was not committed in her presence.
I now come to the 3rd issue which is on costs. It was submitted on behalf of the appellant that the costs of N850.00 awarded by the Court of Appeal were excessive and arbitrary. I find no merit in this contention. The three respondents engaged the services of counsel to fight this case in the Court of Appeal. I am satisfied that the court below judicially exercised its discretion in the award of costs. I have not been shown any good reason to interfere with it. This issue also fails.
In view of the foregoing, this appeal fails and is dismissed. I affirm the decision of the lower court dated 27 March 1992. The respondents are entitled to costs which I assess at N10,000.00 against the appellant.
SC.196/92