In Re “Magistrate Orders Lawyer To Be Handcuffed, Jailed For Contempt Of Court”: How Both The Magistrate And The Lawyer Erred

By Sylvester Udemezue (Udems)

Kindly refer to these two pieces of news published on 23 March 2021:

(1). “BREAKING: Abuja Magistrate Orders Lawyer To Be Handcuffed, Jailed For Interrupting, Challenging Him” (Sahara Reporters).

(2). “Lawyer Remand Order: Eye Witness Gives First Hand Report On What Transpired, In Magistrate Ibrahim Mohammed’s Court”
(TheNigeriaLawyer)

MY OPINION:
Because of public belief and confidence in the disposition and ability of the courts to dispense justice with utmost impartiality, notwithstanding whose ox is gored and ensure that in all cases, justice is not only done, but is seen clearly to be done. Judicial and other officers involved in the administration of justice must therefore engage and be seen to engage only in conducts and pronouncements that inspire, promote and sustain, rather retard, public confidence and respect. On the other hand,
litigants and their lawyers alike involved in proceedings before the courts must imbibe the appropriate manner of dealing with the courts and the judiciary, bearing in mind what negative impact their contemptuous and disdainful stance towards judicial officers may have on administration of justice and rule of law, without which democracy cannot survive. In a November 29, 2010 article under the title, “DELIMITING THE POWERS OF PRESIDING JUDICIAL OFFICERS TO PUNISH FOR CONTEMPT OF COURT”, (see: < : https://allafrica.com/stories/201011300335.html> accessed March 23, 2021), I had described contempt of court thus:

“Contempt of court is essentially seen as a form of disturbance that may impede the functionality of the court. In Atake v. AG, Federation (1982) 11 S.C 175, Idigbe JSC described contempt as “any conduct which tend to bring into disrespect, scorn or disrepute the authority and administration of the law or which tends to interfere with and or prejudice litigants and/or their witnesses in the course of litigation.”. Also, contempt is defined in Agbachom v. The State (1970) 1 All NLR 69 at page 77 (per Lewis J.S.C. citing with approval what Lord Russel laid down) as “any act done or writing published calculated to bring a court or Judge of the court into contempt or to lower his authority. This is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with due course of justice or the lawful process of the Courts is a contempt of court. The former class belong to the category which Lord Hardwick L.C. characterised as range scandalising a court or a Judge: In Re Read & Huggonson (1742) 2 ARK 291, 469.” Contempt therefore means any wilful disobedience to, or disregard of, a court order or any misconduct in the presence of a court; any action that interferes with a judge’s ability to administer justice or that insults the dignity of the court. Granted that it is not necessarily every act of discourtesy to the court by counsel or litigant that amounts to contempt (see Izuora v. Queen 13 WACA Page 313; Okoduwa v. State (1988) 3 SCNJ 110), yet it has been held that to call a judge a liar or to allege he is partial is contemptuous — see Vidyasagara v. The Queen (1963) AC 589”.

With due respect, on no account should a lawyer stand in court or elsewhere in the open and accuse a Magistrate or judge of colluding or of conspiring with counsel on the other side. Even if the only statement he made in the open court was that “the opposing counsel colluded, conspired or was colluding with the presiding Magistrate”, such could still be reasonably considered to be a gross breach of the RPC and a high-class act of unethical conduct and unprofessionalism.

Rule 31 (1) RPC, 2007: “A lawyer shall always treat the Court with respect, dignity and honour”. RULE 31(2): “Where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities”. To this end, where a lawyer feels dissatisfied with the conduct of a presiding Judicial officer in a case, the lawyer has only FIVE OPTIONS, and the list is exhaustive:

1️⃣. Take no steps at all, although this is a form of dereliction of his professional responsibility because Rule 55(2) RPC requires that “It is the duty of every lawyer to report any breach of any of these rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action”.

2️⃣. Bring a formal application (Motion on Notice, Affidavit and Written Address) before the same court asking that the presiding officer should recuse himself from further participation in the proceedings — ie., withdraw from the case.

3️⃣. Write a formal petition/complain to the Chief Judge or other relevant controlling authority asking that the case file be recalled and reassigned to another judicial officer.

4️⃣. Make such Judicial misconduct a ground of appeal. Or

5️⃣. Send a formal petition/complaint to the NJC (in the case of judicial Officers) or to other relavant disciplinary authority (in the case of non-judicial officers, such as a Magistrate).

Regarding courtroom decorum, Rule 36 RPC, 2007 (note that RPC has not been amended) provides that “when in the courtroom, a lawyer shall – (b) conduct himself with decency and decorum, and observe the customs, conduct and code of behaviour of the court and custom of practice at the bar with respect to…manners and courtesy; … (d) …shall not engage in the exchange of banter, personality display, arguments or controversy with the opposing lawyer; (e) not engage in undignified or discourteous conduct which is degrading to a court or tribunal…”

Further, a learned friend alleging in the open court that the opposing Counsel is colluding or conspiring with the presiding Magistrate or judge is a conduct unbecoming of a legal Practitioner, a breach of Rule 1, RPC 2007.

The crux of my opinion is that before or after the lawyer has chosen or adopted any of the five options suggested above, he is still not entitled under any circumstances to resort to publicly insulting the Magistrate by accusing him of bias or of conspiring with the opposing counsel, or to desecrating the temple of justice.

However, the matter does not end there; with due respect, I hold also the opinion that the presiding Magistrate also misbehaved in this instance. A second, and more serious, question that begs for answer is whether the same Magistrate (allegedly publicly insulted and complained against) is entitled to himself or herself try and determine the charge of contempt against the offending lawyer in view of the requirements of the twin pillars of natural justice, especially the rule of nemo judex in causa sua (one cannot be a judge in one`s own case). The query may further be raised whether a presiding magistrate who chooses to punish summarily under such a case, has not thereby turned himself into a judge in his own case, he being now the complainant, the prosecutor and arbiter all at the same time? Answer to this question may not be as straightforward as one may assume. Contempt is punishable with fine or imprisonment or both. There are both civil and criminal contempt; the distinction is however often unclear. Direct contempt or contempt in facie curiae (that is, contempt committed in the face of the court or took place within the court`s precincts or which relates to a case that is currently pending before that court) may be punished by the presiding judicial officer himself. There is no doubt therefore that in most cases where contempt is committed in the face of the court (in facie curiae), the presiding judge or magistrate can summarily try and punish the contemnor (the person alleged to have committed the act amounting to contempt).

The difficult question, however, is whether the presiding judicial officer can try and punish where, as was the case in present case, the contempt is against the person of the presiding magistrate? The 1998 Court of Appeal decision in Chief Dibia v. Chief Ezigwe (1998)9 NWLR (Pt.564) 78 appears to have provided useful answers to these questions. According to the Court of Appeal in that case, “Where a man’s liberty is at stake, every requirement of the law must be strictly complied with. The Supreme Court has said over and over again that the court should use its summary powers to punish for contempt very sparingly. It has also emphasised the fact that Judges should not display undue degree of sensitiveness about this matter of contempt and that they should act with restraint on these occasions: See Boyo v. A. G. Mid-Western State (1971)1 All NLR 342 at 35….” Further, In Deduwa v. The State (1975) 1 All NLR (Pt. 1), the Supreme Court held that “The power to commit is not retained for the personal aggrandisement of a Judge or whoever mans the court. The powers are created, maintained and retained for the purposes of preserving the honour and dignity of the court and so the Judge holds the power on behalf of the court and by the tradition of his office, he should eschew any type of temperamental outburst as would let him lose his own control of the situation and his own appreciation of the correct method or procedure.”

Finally, in Danladi Kachia v. Zaria L A 1969 N.N.L.R. 82, the Kaduna State High Court, sitting on appeal over a judgment of an Area Court, had this to say, that “The evidence proved by the prosecution showed that the appellant had alleged that a party to the proceedings before the Area Court had visited the house of the judge before the hearing of the case and on that account the judge would rig the case. This allegation, in our view, goes beyond contempt of court but constitutes an imputation that may harm the reputation of the judge. …. It is personal to the judge. In our view the judge was therefore personally interested in the case and was therefore debarred from hearing the case….The case of Olokoba Agbegende v. Ilorin Native Authority (unreported) Z/8CA/1967 very exhaustively considered the circumstances in which a judge may be personally interested in a case before him and which may give rise to real bias and a reasonable apprehension on the part of the accused of such bias. We cannot envisage a case that would give rise to a higher reasonable apprehension of bias on the part of the accused than the present one. He was accused of defaming the judge who tried him and convicted him virtually of that offence. We must allow the appeal on this ground. The appeal is allowed. Conviction and sentences are set aside”

In summary, even in cases of contempt in facie curiae, which could be tried summarily, where the conduct that constitutes the alleged contempt is a personality or personal attack or allegation against the trial Magistrate himself, greater caution on the side of the Magistrate ought to be deployed in dealing with the matter, so as to not violate the core principles of a fair trial. The decision of the Court of Appeal in Abiegbe v. Registered Trustees of the African Church [1992] 5 NWLR (Pt. 241) 366 helps to brings out clearly the proper procedure to be adopted. Hear the Honourable court: “This leads to the procedure adopted by the learned Judge. The appellant was put into the dock. He (the judge) took over the conduct of the proceedings. He cross examined the appellant at length. It was he who tendered the exhibits. Counsel for the appellant was not asked to say anything. He heard no addresses. At the end of the proceedings, he committed the appellant to prison for contempt. There is no doubt that the learned Judge felt that this was a contempt in the face of the court and hence he adopted the summary procedure i.e. not to say that the court can nevertheless deal with a contempt summarily even though not in the face of the court – see Boyo v. A.G., M.W. (1971) 1 All NLR 342. Summary proceedings may be also desirable in regard to an article in the press calculated to bring a Judge or court into contempt or to lower his authority or to affect an un-concluded case. See Boyo v. The State (1970) 1 All NLR 318 at 320 and it must be strictly followed.”

Let me conclude by humbly restating the Supreme Court`s position on the need to use the summary powers to punish for contempt sparingly. In Boyo v. A.G., Mid-West. (1971) I All NLR at 342, reference is made to R v. Gray (1900) 2 Q.B. 36 at page 41 where Lord Russell/Killowen stressed that “jurisdiction to deal with contempt summarily should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. Also, in Shamdasani v. King Emperor (1945) A.C. 264 at 270, Goddard LCJ stated that the summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which the court must necessarily possess; but its usefulness depends on the wisdom and restraint with which it is exercised. There may be cases of contempt being 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 incontestable.” See Abiegbe v. Registered Trustees of the African Church (supra); Atake v. A.G. Federation (1982) 11 S.C. 153 at P. 205.
Respectfully,

◼️SYLVESTER UDEMEZUE (udems), 08109024556.,udemsyl@gmail.com.