An Indirect Justification For Disobeying Court Order And The Need For Judicial Restraint By Balogun Sofiyullahi. O.

INTRODUCTION “The respect extended to the courts[by obeying its Orders]  is an outward expression of the continuing fidelity to the pact embodied in the social contract, when the citizens conceded substantial parts of their sovereignty to government. Thus to denigrate the authority of the court is to assault and violate an aspect of the expression of the collective will of the citizens embodied in the social contract. The court, in this context, therefore, is a symbol of the sovereign will of the people. Hence, any act of discourtesy [or  disobedience] is not directed at the judge, but to the institution, itself, an offshoot of the people’s will to be governed by law”. {Per Centus Nweze} Besides,  it is premised  on the foregoing, that any act which tends to violate the  will of the people by justifying disobedience to an order of court  (or judicial arm of government) established by their collective prerogative through the Constitution must as a matter of necessity, be viewed with abundance of caution. However, the immutable postulation that a court order remains forever binding, with corresponding obedience by the person concerned until it is set aside, can at least be regarded as an over-generalization of the concept upon a deep and meticulous appraisal of the law of contempt in terms of Civil Disobedience to an order of court made in the course of a civil proceedings. Hence, the objective of this article is to examine in relation to Civil Contempt whether this above over-generalization is for all material purposes helpful and it would be submitted in the negative with recommendations from this writer. THE LAW OF CONTEMPT In Nigerian  legal system, the power of the court to punish for contempt is not concentrated in a single statutory enactment but runs through varieties  of Laws. See Sections 17(2)(e), 6(6)(a) and 39(3)(a) of the 1999 Constitution; Sections 6 and 133 of the Criminal Code; sections 66 and 72 of Sheriffs and Civil Process Act, and the various Federal/ State High Court Rules. However, contempt of court is the act of putting into disrepute, disdain or denigrating the integrity of the court either directly or constructively which may be civil or criminal. Justice Agbaje JSC (as he then was) in 1990 Judicial Lectures: Continuing Education for the Judiciary, MIJ Publishers, titled “Contempt of Court and Discourtesy” lucidly submitted  thus : “Contempt are of two kinds, direct or constructive. When the contempt are(sic:is) direct i.e committed in the immediate view and presence of the court or so near(in) the presence of the court as to obstruct or interrupt the due and orderly course of proceedings they are said to be contempt committed in curiae facie i.e contempt in the face of the court. On the other hand, those contempt (sic) which arise from matters not occurring in or near the presence of the court, (are) said to be constructive or indirect contempt, are referred to as contempt committed ex facie curiae.” The power to punish for contempt inheres in every court of law to the extent that even where a challenge is posed at the jurisdiction of a court in a matter, it must still proceed to determine whether contempt has been committed against it, the jurisdictional challenge notwithstanding . See JOHN EBHODAGHE V. MR. MIKE OKOYE (2004) LPELR-SC.218/2000, where the Supreme Court held : “While it is a settled law that when an issue of jurisdiction is raised by a party the court ought generally to take it first, where however due to a combination of factors an act which would impugn on the majesty of a court and likely to bring the court to odium and disrespect is done, it is I dare say, not just desirable but essential for the court to first look into the matter of contempt before proceeding on the issue of jurisdiction.” Per Ancholonu JSC (as he then was). See also : the  American case of Passmore Williamson (1855) 26 Pa 9, 67 Am Dec 374. The sum total of the above therefore reveals the essential reasons why a court must possess the power to punish for contempt although, It is a power which a court must necessarily possess; (but) its usefulness depends on the wisdom and restraint with which it is exercised and employed. See Shandasami v. King Emperor (1945) A.C. 264 at page 268 and Boyo v. AG, Mid West State(1971) LPELR-SC.53/1970. NON COMPLIANCE WITH  COURT ORDER & INITIATING CONTEMPT PROCEEDINGS AGAINST THE CONTEMNOR Obviously, from the provision of  Section 72 of the Sherriff and Civil Process Act, any person who fails to comply with an order (other than monetary payment) of Court directed against him is to be committed to prison for contempt of court upon issuance of Form 48 (Notice of the Consequence of Disobedience) and Form 49 (Motion for Committal for Contempt) designated for such committal proceedings. However, based on common law, a  Contemnor cannot be proceeded against for contempt of the court order  irrespective of his deliberate attitude not to comply with same, in  two  exceptional circumstances below:

1. When he challenges/lodges an appeal against the order made in respect of him,
2. When he brings an application to the same Court that made the order challenging the validity of such order.

The facts in the case of AG OF EDO STATE & ANOR v. CHURCHGATE INDUSTRIES LTD & ANOR (2016) LPELR-41439(CA) are lucidly captivating on this point. In the above case, the Attorney General of Edo State was committed to prison for contempt of the Order of the Federal High Court, Benin Division in his official capacity while his appeal against the competence of the Order  was still pending before the Supreme Court. Upon appeal against his committal to prison, the Court of Appeal held: “… I am of the view that although a Judgment of a Court of competent jurisdiction remains valid and binding until it is set aside by an Appeal Court or by the lower Court itself if it acted without jurisdiction, but where the defendant in the cause challenges the validity of the order directed at him either by way of an appeal or other application, he should not be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other. See – GROUP DANONE VS VOLTIC (NIG) LTD (Supra) Page 637 at 660 paragraphs E – G Page 661 paragraphs B – H.”Per BADA, J.C.A. (Pp. 19-20, Paras. F-B) Similarly, the Supreme Court in the case of INEC & ANOR v. OGUEBEGO & ORS (2017) LPELR-42609(SC) held : “Now, the general common law rule is that a person in contempt cannot be heard in the cause unless he purges himself of the contempt, Group Danone and Anor v. Voltic (Nig) Ltd (2008) LPELR 1341 (SC) 21; B-D; [2008] 7 NWLR (pt. 1087) 637; (2008) 34 NSCQR (pt. 1) 40. However, that ancient prescription is now subject to certain exceptions. Thus, it is now tolerably settled that where a defendant, in a cause, challenges the validity of an order directed against him, either by way of an appeal or other application, he cannot be proceeded against for contempt of that order unless and until the issue of its regality is settled one way or the other, Onwochei Odogwu v. Olemeoku Odogwu (1992) 2 NWLR (pt 225) 539, 554. Gordon v. Gordon (1904) All ER 163. This re-statement has even become necessary now having regard to the distinctive attribute of contempt as sui generis, Boyo v. The State (1970) All NLR 316; (1970) LPELR – 797 (SC) 4- 5; C-A;” Per Centus Nweze(JSC) THE NEED FOR JUDICIAL RESTRAINT IN APPLYING THE EXCEPTION Since this common law exception is firmly established by a  long line of authorities, and it has become an  indisputable principle of law in Nigeria, it is the  candid submission of this writer that the provision of Section 32(2) of the Interpretation Act, Cap.123,  LFN 2004 (infra) should as a matter of policy go hand in hand with the application of this exception in deserving cases and circumstances which would be brought to light as follows:

1. Having honest regards to our peculiarities in Nigeria, this exception can be deliberately abused by the Judgement debtor against the Judgement Creditor in order to deprive him of the fruit of the Judgement obtained in a case.
2. A Judgement Debtor may deliberately file a frivolous appeal or application against an Order or Judgement made against him and at the same time willingly not prosecuting same diligently, at the detriment of the Judgement Creditor.
3. The rich may use this exception (because of their ‘means’) by oppressing the poor, thereby using the machinery of justice against the common man.
4. Importantly, the undue delay encountered in the administration of justice is a notable factor why a judicial restraint is necessary in applying this common law exception.

However, a consideration of Section 32(1) & (2) of the Interpretation Act is pertinent at this point, it provides: (1) Subject to the provisions of this section and except in so far as  other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1^st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria. (2) Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and local circumstances shall permit and subject to any Federal law.(emphasis added). See also Sections 3 & 15 of the Interpretation Law Cap.65, Laws of Oyo State of Nigeria, 2000 It is apparent from the above provision,  that the legislature in their profound wisdom through subsection (2) of Section 32 above, had made an important qualification to the application of all these imperial laws in Nigeria, (the common law in particular as relevant to this discussion,) because to apply everything hook, line and sinker would be unnecessarily subservient and unreasonably  over reaching because, our peculiarities are distinct with that of England and many a times, these received imperial laws had ceased to be in operation, applied cautiously and/ or with necessary modifications  in England. On this note, I humbly take the liberty of adopting the words/dicta  of the Supreme Court of Nigeria through Hon. Justice Centus Nweze in the case of    SYLVA V. INEC(2015) LPELR-24447(SC)  thus: “What makes the matter more irksome is that some of those concepts have been abolished in the land of their nativity, namely, England. Is it, then, not curious that here, in Nigeria, we are pretending to be more Catholic than the Pope?” RECOMMENDATION The exception cannot be completely dispelled as of no practical significance,  because of its constitutional flavour as  the right to appeal to higher courts  or to bring  an application to the same court that made an order to set same aside in order to cure some fundamental flaws or test the correctness or otherwise of such decision is important because:

• Right to Appeal is a continuous exercise of  the right to fair hearing as guaranteed under Section 36(1) of the 1999 Constitution. In Obikoya v. Wema Bank Limited (1989) 1 SC (Pt. 1) 132, the Supreme Court per Oputa, JSC stated thus:

“A right of appeal is a very important constitutional right and its exercise ought not to (be) unduly fettered.” See also SKYE BANK v. IWU (2017) LPELR-42595(SC), Imegwu v. Okolocha & ors (2013) LPELR-1986 .

• the general inherent powers donated to the Courts vide Section 6 of the Constitution extend to setting aside an order made by the same court without jurisdiction or in  deserving circumstances. See KOLAWOLE v. ADULOJU & ORS : (2018) LPELR-44075(CA), AHMAD v. SAHAB ENTERPRISES (NIG) LTD & ORS: (2016) LPELR-41313(CA), ADEBAYO v. OLAJOGUN : (2016) LPELR-41390(CA).

It is therefore my humble RECOMMENDATIONS that :

1. where the contemnor acts malafide (in bad faith) by deliberately disobeying an order of court against him, he should not be aided with the application of this exception until he purges himself of his Contempt or
2. the circumstances of a case coupled with the conduct of the Contemnor must determine the application of the exception.

On this point, the statement of Denning LJ (as he then was) in the case of  HADKINSON v. HADKINSON (1952) 2 All ER 567, 573,  is of logical significance at this juncture, he observed : ‘I need hardly say that it is very rare for this Court to refuse to hear counsel for an appellant. No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard for the simple reason that, if he is not heard, his right of appeal is valueless…the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but if his disobedience is such that so long as it continues, it impedes the cause of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.‘ CONCLUSION The significance of compliance with an order of a court of law,  underpins one of  the very essence of Rule of Law which is  always seen to  triumph  in a sane democratic dispensation and thus, Rule of Law equally  underscores to my view, the reason why the common law exception examined above coupled with the Nigerian induced factors  should propel the reasons why there is a need to be an exercise of judicial restraint in the application of the principle because, this might be an indirect justification for allowing a defendant/contemnor to perpetuate in his disobedience if not properly checked. Balogun Sofiyullahi writes from Faculty of Law, Ahmadu Bello University, Zaria. 07032676039 or balogunsofiyullahi@gmail.com.]]>