By bamidele Kolawole
Contempt of court is defined as wilful disobedience to, or disregard of, a court order or any misconduct in a court. It can also be in reference to an action that interferes with a judge’s ability to administer justice or that insults the dignity of the court.
One of the inherent powers of a court of law is to ensure, not only compliance with its orders but also punish its disobedience. Where a person disobeys a court order or makes disrespectful remarks about a court, such a person is said to be in contempt of court.
Recently, the Chief Judge of Akwa-Ibom State, Honourable Justice Ekaette Obot convicted a Counsel, Inibehe Effiong Esq and sentenced him to one-month imprisonment for disrespectful comments and posture against the court during proceedings.
Since the incident, the argument amongst legal practitioners and indeed the public in Nigeria has been as to the legality or otherwise of the Chief Judge’s action.
Being convicted for contempt of court is punishable by fine or imprisonment or both.1 The Supreme Court of Nigeria, in the case of Atake v. Attorney General of the Federation
One important kind of contempt “is scandalizing the court” …; and so “counsel or advocate may in the interest of his client cast reflections upon the conduct, character, or credit of the parties or witnesses, so long as his comments are pertinent to the matters in question, although they would, outside a Court of Justice, be actionable as slanderous.
The procedure for trial in contempt in facie curiaeis as follows;
putting the alleged contemnor in the accused box.
explaining to him what he did before the court. Asking to show cause why he must not be punished.
It is imperative to mention that it is not all discourtesy to the Court by Counsel that amounts to contempt. In the case of INEC & Anor v. Oguebego & Ors7, the Supreme Court whilst considering the instance when words or actions used in the face of the Court or in the course of proceedings can be deemed contemptuous, held as follows:
“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.
“If any person refuses or neglects to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in Paragraph (f) of section 66 of this Act, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.”
It is imperative to mention that before an alleged contemnor can be committed to prison for a contempt ex facie curiae, there are laid down procedures that must be complied with so as to ensure that the alleged contemnor is given fair hearing.
The procedure for civil contempt (ex facie curiae) can be divided into two important stages as follows:
The FIRST ACTION to take, when an Order of Court is disobeyed, is to apply to the Registrar of the Court for Issuance of Form 48 which would have a copy of the relevant Order endorsed at the back of the Form.
Form 48 is a notice of consequence of disobedience of Court Order. The Form 48, endorsed with Court Order, must be signed by the Registrar of the Court. The person who seeks to enforce the Court Order must ensure that the form is personally served on the alleged contemnor (party in contempt) by the Court’s bailiff who must file proof of service in the Court’s file.
The purpose of serving the alleged contemnor personally with form 48 is to give the contemnor the opportunity to have a rethink and comply with the Order of the court to avoid the Court’s sanction.
However, service of Form 48 and 49 on the contemnor can be dispensed with, if the Court is satisfied that he has adequate notice of the Order/directive of the Court.
The second action to take, having complied with the first step – issuance and the service of Form 48 on the contemnor, and the contemptous act persist, the person seeking to enforce the Order can, after 2 days of service of form 48, apply to the Registrar for Form 49 to be issued and served on the contemnor. Form 49 is a notice to the Contemnor (party in contempt) to show cause why order of committal should not be made against him. Service of Form 49 must also be made in like manner as service of Form 48.
It is after the above procedures have been complied with, that the party seeking to enforce the Court Order may then approach the Court by a Motion on Notice for committal. This Motion is to be supported with a statement setting out the reliefs and the grounds of the application, together with an affidavit brought under the Sheriffs and Civil Process Act or Law, the judgment enforcement Rules made there under and under the provision of Rule of Courts, such as the Federal and State High Court Rules of various States in Nigeria.
Failure to comply with any of the procedures set out above constitutes a fundamental breach which will render the whole process a nullity.
In the case of DIKIBO V IBULUYA the Court held that “as committal proceedings touch on deprivation of freedom and liberty of the person, the service and procedure thereof are applied strictly and any break or departure from the Strict application vitiates the proceedings”.
The above appears to mean that there is a need to accord the alleged contemnor fair hearing because contempt of Court is a quasi-criminal proceeding whose outcome may likely affect the liberty of the individual involved.
Contempt of Court may be described as any act or conduct which interferes with the course of justice and tends to bring the authority and admits fraction of law into disrespect. The twin elements of contempt of Court are therefore, interference and disrespect.
The aim of the law of contempt is to situations of this nature protect the dignity of Court from any conduct that tends to obstruct or interfere with the administration of justice. See Adeyemi Candide-Johnson v. Mrs. Esther Edigin (1990) 1 NWLR (Pt. 129) 659 at 668.
It is essential to the maintenance, and indeed to the very existence, of the legal system of any state that the Court should have ample powers to enforce its orders and to protect itself from abuse of itself or its procedure.
For this reason, contempt has been part of the legal history as far back as the tenth century. Contempt is commonly classified as civil contempt and criminal contempt.
Criminal contempt are also two (a) contempt committed in the face of the Court and (b) contempt committed out of Court. The catalogue of criminal contempt in and out of Court is not exhaustive however, it includes cases where litigants disobey court orders.
In enforcing civil contempt of Court, the person seeking to commit the contemnor will first serve him (the contemnor) notice of consequences of disobedience of court order usually referred to as “Forms 48 and 49” of the Sheriff and Civil Processes Act warning him of the consequences of his act of disobedience of court order.
Thereafter the person seeking to commit the contemnor will then initial a committal proceeding for contempt usually in form of an application (motion on notice) for the contemnor to show cause why he should not be committed to prison for contempt of court having failed to obey court order in a civil action.
Contempt committal proceeding is a quasi criminal action and therefore the procedure must strictly comply with extant law regulating it.
The law prescribes the mode for enforcing a declaratory judgment in the event a contemnor disobeys a court’s judgment or order.
The court is empowered by law to commit such contemnor to prison by issuing a warrant of committal in line with Section 72 of the Sheriffs and Civil Process Act Cap S 5, Laws of the Federation of Nigeria, 2004.
But before the court can proceed to commit such contemnor to prison, certain steps or procedures must be followed as prescribed by the law pursuant to Order IX Rule 13 (1) of the Judgment (Enforcement) Procedure Rules Cap Laws of Federation of Nigeria, 2004.
According to Order IX Rule 13 (1), the first step to be taken is for the applicant or judgment creditor to bring an application for notice of consequences of disobedience to order of court (Form 48), following which the Registrar of the court shall issue the said Form 48 two clear days after the service of a certified true copy of the order(judgment or ruling). This is impari materia with Order 23 Rule 4(5) of the Ondo State (High Court) Civil Procedure Rules, 2019.
Thereafter, a committal proceeding shall be initiated by the judgment creditor by filing an application (Form 49).
In buttressing this further, Order 23 Rule 4 (3) & (4) of the Ondo State (High Court) Civil Procedure Rules, 2019, committal proceedings shall be initiated vide a motion a notice supported by an affidavit and shall state the grounds of the application and same shall be served personally on the alleged contemnor.
Upon service of the application on the alleged contemnor, he shall (if he chooses to) respond by filing a statement stating reasons why an order of committal should not be issued. The statement shall be verified by an affidavit deposed to by the respondent (alleged contemnor).
See Order 23 Rule 4 (6) of the Ondo State High Court (Civil Procedure) Rules, 2019.
Where the alleged contemnor is found guilty, the court will convict him and sentence him or her accordingly, following which a warrant committing him would be issued.
Ordinarily, Court contempt is a disobedience to court order. In the case of ORIA & ORS v. ARUE & ORS (2022) LPELR-56786(CA), the Court of Appeal held thus on the principles and procedure for contempt arising from disobedience of order of Court.
“The nature of the contempt in this matter is civil contempt arising from disobedience or alleged disobedience to an order of perpetual injunction. Section 63 of the Sheriffs and Civil Process Act Cap S 3 Vol. 4 of the Laws of Delta State, 2006, provides: “If any person refuses or neglect to comply with an order made against him, other than for payment of money, the Court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph F of Section 57 may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the Court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fines as the Court directs.”
Rule 13 (2) “If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as judgment summons.” Rule 13 (3) “On the day named in the notice the Court, on being satisfied that the judgment debtor has failed to obey the order and, if the judgment debtor does not appear- (a) That the notice has been served on him; and (b) If the order was made in his absence, that the endorsed copy thereof has also been served on him may order that he be committed to prison and that a warrant of commitment may issue.”
Though disobedience of order of Court may be civil contempt, committal proceedings are quasi-criminal in nature and are also sui generis.
The result may be interference with liberty of a subject. It follows therefore that there must be strict compliance with the prescribed procedure. See Deduwa v. State Supra and Dikibo v. Ibuluya (2006) 16 NWLR (Pt. 1006) 563, 579.The lower Court held as follows at page 194 of the record: “Where contempt is committed, ex facie, that is outside the Court, the Court must conduct full trial with charge sheet properly drawn up, witnesses called, examined, cross-examined and finally the guilt of the contemnor has to be proved beyond reasonable doubt… As a matter of fact none of the Appellants were heard from by the trial Court before being convicted and sentenced to imprisonment.
No procedure could be more irregular and no conviction more illegal.” The fitting answer to the position of the lower Court immediately above is to be found in the dictum of Oguntade, JSC, in Odu v. Jolaoso supra. 1368-1369 where his lordship stated: “It is clear from a perusal of Order 9 Rule 13 above that whilst the intention of the lawmaker is to afford a person whose committal is sought for failure to obey a Court order a hearing before he is committed to prison, such hearing is not equivalent of a criminal trial in the ordinary manner. It is a special procedure to expeditiously deal with a recalcitrant person.
Once the Court is satisfied that an order was made which a person has refused to obey, he may be sent to prison once it appears that notice as in Form 49 has been served on him and if the order was made in his absence that a copy thereof has been served on him.” Therefore, the provisions of Order 9 Rule 13 supra.
The Principle of contempt in law has to do with ensuring that specific Court pronouncements are obeyed. Yes, a contempt can be either Civil or Criminal in nature, depending on the way and manner and the issues involved.
The procedure for contempt is usually spell out in the civil procedure rules of the various jurisdictions, however the procedure is primarily the same, except that, the Applicant, who is citing someone for Contempt, may be using different forms, for instance Enugu State could be using Form 1, under the E Enugu High court rules while Ondo State could be using Form 48,likewise,the Federal High Court Rules has similar provision.
The procedure for contempt is regimented, it has to follow the laid down rules; forms to the contemn or to notify him and to demand of him to show course why the court should not commit him/her to prison. There must be a statement of the Contemptuous action on Oath.
It must be put to mind that the contempt procedure is Quasi-Criminal in nature, hence proof in contempt is of the same standard as Required in Criminal Procedure, it is “Prove Beyond Reasonable Doubt” with the burden to so prove laying solely on the person who is asserting or alleging contempt.
The contemnor has the right of reply via counter-Affidavit to the motion for the contempt. It is now left for the court to decide if the Applicant really proved the contempt beyond reasonable doubt.
Basically, there are two major types of contempt; namely- contempt in facie curiae – talking about contempt within the court or the precinct of the court and secondly, is contempt ex facie curiae – which deals with contempt outside the court and its precinct.
Generally, this can be sub divided into two, that is, civil and criminal contempt. Then, what is contempt? Any act that disrupts the peace, disobedience to court orders, calm and tranquility (i.e. decorum) of the court constitutes a proper case of contempt. That is, any act of disrespect to the court.
Contempt of court is an affront to the authority and dignity of the court. One form it can take is disrespectful behaviour in the presence of the court – like rude gestures, shouting or interrupting the judge.
The circumstances of each case determines what amounts to contempt especially contempts that are in facie curiae. The manner in which the court speaks to the counsel or the type of question asked by the court will also play a role in this.
Decorum and decency should be the watchword from both players. Respect begets respect they say. The bench must always realize that one time or the other they are on the side of lawyers before moving to the bench, hence, both ministers need to respect the sanctity of the profession.
There have been cases where the Courts have maintained that the power of the Court to punish for contempt must always be exercised to secure and protect the authority of the Court.
For instance, ADEYEMI CANDID-JOHNSON V MRS ESTHER EDIGI where an Acting Chief Magistrate went beyond its powers and cited a counsel for contempt because the counsel insisted that his submissions before the Court should be placed on record and also refused to answer a question which was put to him by the Court.
The Magistrate considered the counsel’s conduct to be rude and contemptuous and ordered that he should be detained. The Court of Appeal, while condemning the act of the Magistrate held:
“Apparently, when tempers rose rather meteorically, the respondent, exacerbated by the situation, unleashed this incisive question: “When did you leave the law school? The response, going by the record, was equally unrelenting: “I will refuse to answer that question in the rudest manner.”
It was the refusal to answer this question, according to the record, that broke the camel’s back, and led to the detention of the appellant for contempt of court. It was unfortunate, to say the least, for the respondent, according to the records, to have taken leave of her exalted bench, invited counsel to extra-judicial dialogue, and thereafter descended into the arena of vituperative conflict with him”.
In Fawehinmi v State the court held that strongly worded criticism of the court or judge would not be contempt provided the criticism is fair, temperate and made in good faith. Where there is an error on the part of the Judge or Magistrate, the lawyer must courteously with respect without sounding insulting try to correct the court, the counsel can start with due respect to the court, this should be the position. This is when with due respect can be said to be used correctly not when announcing appearance.
The Supreme Court of Nigeria in the case of INEC & ANOR V OGUEBEGO & ORS, whilst considering the instance when words or actions used in the face of the Court or in the course of proceedings be deemed contemptuous, held as follows: “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….”
PROCEDURE FOR CONTEMPT
The procedure for trial in contempt in facie curiae is as follows;
Putting the alleged contemnor in the accused box.
Explaining to him what he did before the court.
Asking to show cause why he must not be punished.