CONTEMPT BY COUNSEL
A
contempt of court may be committed by a lawyer or any other person. Where it is
lawyer, it is unethical of his duty and honour of the court, not for the sake
of the temporary incumbent of the judicial office, but for the maintenance of
its supreme importance. The respect is not for the sake of the judge, but for
the maintenance of respect for and confidence in the judicial office.
Contempt
of court was pointed out in Shamsadani v. King Emperor (1945) A. C 268 that:
“The purpose of the discipline enforced by the court in the
case of contempt is then need to protect the dignity of the court of the judge
and to prevent undue interference with the administration of justice, but not
to bolster up the power and dignity of the judge as an individual. The
importance of this is that of all the places where law and order must be
maintained, it is the court…; the course of justice must not be deflected or
interfered with. Those who strike at it at the very foundation of the society.
To maintain law and order, judges have and must have power at once to deal with
those who offend against it.”
On
the other hand, the duty of a lawyer before the court often requires great
courage and independence and these are virtues which if not properly handled
can bring him into collision with the court. He must strive to perform his
duties without being provocative or offensive to the court, remembering always
that he is an officer of the court.
TYPES OF CONTEMPT
There
are two types of contempt namely –
1. Criminal
contempt; and
2. Civil
contempt
CRIMINAL CONTEMPT:
Criminal
contempt are acts done which obstruct or interfere with the administration of
justice. It consists of
words or acts which obstruct or tend to obstruct or interfere with the
administration of justice. To call a judge a liar, or to allege he is partial –
Vidyasagara
V The Queen 1963 AC 589, after or during the course of
judgement, "That is a most unjust remark" – Stafford County Judge 1888-57 LTQB 483, JORDAN 36 WR 289.
However, it is not every unjust remark
that leads to contempt, as if one gives a fair and candid remark, it may not
amount to contempt.
CIVIL CONTEMPT:
Civil
contempt has to do with disobedience to the judgments, orders or other
processes of court and
involving a private injury – Obiekwe Aniweta v. The State FSA/E/47/78 delivered
on 16/8/78; Awobukun v. Adeyemi (1968) NMLR 289 at 294, Afe Babalola v. Federal
Electoral Commission & Chief Adegborioye: SUIT NO. AK/MA/77 OF 21/2/78
delivered by T.A. AGUDA CJ ONDO STATE.
ACTS OF CONTEMPT
It is not possible to particularize
the acts which can or cannot constitute contempt of court - Agbachom v. The State (1970) 1 All NLR 69.
It is not every act of discourtesy
to the court by counsel that amounts to contempt, nor does conduct which
involve a breach by counsel of his duty to his clients necessarily amount to
contempt – Izuora V. Queen 13 WACA 313.
Nevertheless the following acts or
conduct have been held to constitute contempt of court –
1. Language
or behavior which is outrageous or scandalous or deliberately insulting to the
court;
2. Comments
scandalizing the court;
3. Publication
in a newspaper containing scurrilous personal attack on the judge with
interference to his conduct in court in a judicial proceeding even when the
proceeding has terminated is contempt under section 133(4) of Criminal Code; R v. Thomas Horatius Jackson 6
NLR 46-55, Obiekwe Aniweta v. The State (supra);
4. Frivolous
allegations of partiality against a judge in a judicial proceeding; and
5.
Private communication
to a judge intended to influence him in performance of his judicial duties in
respect of a matter pending before him – Awobokun v. Adeyemi (1968) NMLR 289.
Howver, a fair and civil criticism
made against the court, may not amount to contempt – Okoduwa v. State (1988) 3 S.C.N.J. 110.
CLASSIFICATION OF CONTEMPT OF COURT
Contempt of
court are classified into two viz: direct and indirect contempt of court.
DIRECT CONTEMPT OF COURT
This
is contempt ex facie curiae (that is,
in the face of the court) and may take the form of acts done or a speech made
within the premises of the court which obstructs or interferes with the
administration of justice.
In
such instances, the judge against whom the contempt is committed may deal with
it summarily by putting the contemnor (the person who is involved in the act)
in the dock (it should be noted that it is not in the witness box), then he
should be informed of the act of the contempt and asked why he should not be
convicted for the contempt. On hearing his defence, the court may either
discharge or convict him, which shall be a sentence of imprisonment or fine.
Thus, it is
direct where it is committed in the immediate view and presence of the court
(such as insulting language or acts of violence) or so near the presence of the
court as to obstruct the due and orderly cause of proceedings.
INDIRECT CONTEMPT OF COURT
This is also
termed constructive contempt of court. It arises from matters not accruing in
or near the presence of the court, but which tend to obstruct or defeat the
administration of justice, and the term is chiefly used with reference to the
failure or refusal of a party to obey a lawful order, injunction, or decree of
the court laying upon him the duty of action of forbearance.
It
is usually an act of spoken or published words done outside the court which are
calculated to obstruct, or interfere with, the due administration of justice – Atake
v. Attorney-General (1982) 11 SC 153; Awosanya v. Board of Customs (1975) 3 Sc
47.
Where
the contempt of court is outside the court, it may be tried summarily where the
facts are clear and virtually incontestable e.g. in a newspaper publication.
In all these cases of contempt outside the
court, it is not desirable that a judge who is the subject of the attack should
try the case. It should be tried by another court – Awobukun V. Toun Adeyemi (supra).
A
lawyer should also endeavour by all honourable means to ensure that he does not
find himself answering a charge of contempt, but is he has to do so, he should
insist that the court should follow the right proper or right procedure.
In
most cases of contempt outside the court, the proper or right procedure is to follow
the normal processes of arrest, charge and prosecution – Boyo v. Attorney-General M. W
State (1971) 1 All NLR 342; Oku v. The State (1970) 1 All NLR 60.
Thus, civil contempt is ex facie curiae as it is committed
outside the face of the court, while criminal contempt can be in facie curie and ex facie curie as it can be committed within the court and outside
the court.
PURPOSE
"The purpose of
the discipline enforced by the court in the case of contempt is the need to
project the dignity of the court to the person of the Judge and to prevent
undue interference with the administration of Justice but not to bolster up the
power and dignity of the Judge as an individual. The importance of this is that
of all the places where law and order is maintained, it is in the courts,
the course of justice must not be deflected or interfered with. Those who
strike at it strike at the very foundations of the society. To
maintain law and order judges have and must have power at once to deal with
those who offend against it".
Thus, the main purpose is to prevent
undue interference with the administration of justice. Rather, it is basically for
there to be respect for the court, and to uphold the dignity of the judicial
office.
PROCEDURE
In initiating proceedings of this
nature, the guiding principle is that no person shall be punished for contempt
of court which is a criminal offence unless the specific offence charged
against him be distinctly stated and an opportunity of responding to the charge
given to him – Obiekwe Aniweta v. The
State (Supra).
Though, a court can deal summarily
with cases of contempt in the face of the court and by the very judicial
officer in whose presence the offence was committed .
However in such cases of contempt
committed in the face of the court, the court has two options:
1.
There
may be cases where the offence should be dealt with summarily but such hearing
must be conducted in accordance with the cardinal principles of fair hearing
and the case must be one in which the facts surrounding the alleged contempt
are so notorious as to be virtually incontestable.
2.
In
most cases, the proper procedure of apprehension or arrest, charge, prosecution
etc., must be followed – Boyo v. The Attorney-General Of Mid-West State (1971)
1 All NLR 342; Oku v. The State (1970) 1 All NLR. 60; Maharaj v. Attorney-General Trinidad & Tobago (1977) 1 ALL NLR 411.
When a contempt is not
committed in the face of the court, a judge who has been personally attacked
should not as far as possible hear the case – Awobokun v. Adeyemi (SUPRA). This is based on the fact that no
one shall be a judge in its own case.
If a trial court wishes to deal with
a case of contempt in the face of the court summarily, he should put the
accused not in the witness box but into the dock and ask him to show cause why
he should not be compulsorily put into the witness box as that offends section
36(11) of the 1999 Constitution which reads "No person who is tried
for a criminal offence shall be compelled to give evidence at the trial” – Deduwa v. The State (1975) 1 All NLR 1 - 17; Agbachom v. The State (1970) 1 All NLR 69.
Also, natural justice demands that
before anyone is committed for contempt, he must be informed of the details of
the contempt and must be given an opportunity to make an answer and defence – Re: Olu
Onagoruwa FCA/E 117/79
delivered on 5/2/80.
PUNISHMENT FOR CONTEMPT OF COURT
A charge of contempt of court is a
serious one and it is necessary not only for the protection of the courts of
justice, but also for the preservation of justice and the administration of it.
In this country, acts or conducts which tend to invade these concepts should be
very sternly dealt with and in a good time as well – In Re Boyo (1970) 1 All NLR 116.
The court will pardon a contemnor
whose conduct is unintentional and who purges his contempt by a sincere apology
and credible explanation. Also, the court will pardon and discharge a contemnor
if he acts unintentionally and from a mistaken belief or misconception of the
laws thereby flouting a court's order – The State v. Hon. Justice A.A.M. Ekundayo
& Anor KWS/I06/77 of 2/9/77.
Contempt committed under section 133
of the Criminal Code carries a maximum imprisonment of 3 (three) months – Okoma v. Udoh (2002) 1 NWLR (Pt.748) 438.
According to Halsbury's Laws of
England, the punishment permissible by law in the case of civil contempt is 6 (six)
months – Afe Babalola v. Federal Electoral Commission & Chief Adegborioye
(supra).
A contemnor can be ordered to be
kept in prison until he purges his contempt – Ikabala v. Ojosipe SUIT NO.
LD/967/71 of 30/3/72 .
JURISDICTION
OF COURT TO PUNISH FOR CONTEMPT:
The High court has inherent
jurisdiction to punish criminal contempt summarily but the power should be
exercised with the greatest caution – Awobokun v. Adeyemi (1968) NMLR 289.
The inherent power to impose fine
and imprisonment for contempt is not retained for the personal aggrandisement
of a judge or whoever mans the court. The power is created and maintained for
the purpose of preserving the honour of the court – Obiekwe Aniweta v. The State
(supra); Deduwa v. Okorodudu (1975) 2 SCP.37; section 133
of the Criminal Code.
Follow @wingrassnews
No comments:
Post a Comment