⦿ CASE SUMMARY OF:
Adeyemi Candide-johnson v. Mrs. Esther Edigin (1990) – CA
by PipAr Chima
⦿ LITE HOLDING
An act which qualifies for a contempt of court should be related to the Legal proceeding.
⦿AREA OF LAW
Contempt of court.
Mrs. Esther Edigin
(1990) JELR 42960 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
- FOR THE APPELLANT
- Mr. J. B. Majiyagbe, S.A.N., appearing with D. I. Daneji, Esq.
- FOR THE RESPONDENT
- Mr. A. B. Mamoud, learned Ag. Director of Civil Litigations, appearing with Tijani Yahaya, ADCL.
⦿ FINDING OF FACT
THE RECORD OF PROCEEDINGS AS RELEVANT TO THIS MATTER:
Johnson: This is a motion that is brought in pursuance to section 33(1) of the Constitution and apparent inherent jurisdiction of this court to dismiss the charge and discharge the accused. It is supported by an eight paragraph affidavit and I rely on all paragraphs. See Sogekun and Akinyemi 1980 5 -7 S.C. Pg 1 at 18. Allen v. McAlpine and Sons Ltd. (1968) 2 Q.B. 229 at 259. See Street Field Committee report cost it on delays in criminal trials. See Tofi v. U.B.A. (1987) 3 Nigerian Weekly Law Reports (Pt.62) p.707. It is with respect that I submit that if the court decides that 4 years is an unreasonable time for the accused to still be standing trial then the court should dismiss the case.
Court: Case adjourned 21/1/88 for ruling.
Court to Mr. Johnson: I would like to remind you that when next you make submission in courts, you make them with the utmost respect and to the court.
Mr. Johnson: The court is obliged to record everything I say.
Court: I record only what is reasonable to me as the law requires. I do not record nonsense. It’s a bloody waste of time and please keep quiet when I am talking.
Mr. Johnson: The court should listen to me first.
Court: Please do not argue with me and stop being rude.
Mr. Johnson: We are not in a competition here.
Court: As a Judge – I sit over your cases and you should give me that respect.
Court: When did you leave the Law School?
Mr. Johnson: I will refuse to answer that question in the rudest manner.
Court: repeats the question time and time over again.
Mr. Johnson: I will not answer the question.
Court: You are being rude and committing contempt and you know it and I have no alternative. If you intend to disgrace the court as a lawyer I will have no alternative than to hold you for contempt. I hereby order that you be detained.
After ten minutes. Miss Olaniyan and 2 other lawyers on behalf of Mr. Johnson – we are very sorry for Mr. Johnson’s behaviour.
Court: to Mr. Johnson – It is not my desire to put people in the cell anyhow but when you push me to the wall by being very disrespectful, I have no alternative. All I can tell you now is that your behaviour in the court amounted to utmost disrespect but I will temper justice with mercy and warn that no matter any court in which you appear, you are bound to show first and foremost absolute respect. You are a lawyer and your first duty is to the court. Please behave and be respectful next time. You are free to go.
On 22nd December, 1987, at the Chief Magistrate Court No.8, Kano, presided over by Her Worship, Mrs. Esther A. Edigin, Ag. Chief Magistrate, Grade 2, Mr. Adeyemi Candide-Johnson appeared in that court as counsel to the accused in the case of Commissioner of Police v. Obong Etukurem, KA/70CB/87.
Consequent to what transpired at the said court, Her Worship ordered the detention of Mr. Candide-Johnson for a couple of minutes at the cell.
Having obtained prior leave of the Court by Ex parte Motion, Mr. Candide-Johnson, as applicant, moved the Federal High Court Kano by Motion on Notice for redress for the breach of his fundamental rights on the grounds set out in the copy of the Statement in support of the application. The amended Statement in its paragraph 4 contained the following reliefs: “1. An order to remove the purported second proceedings of the 22nd day of December, 1987 for the purpose of the said proceedings and the purported order of commitment (sic) and all such other orders affecting the liberty of the applicant, being quashed. 2. An order that the respondent make full apology in writing to the applicant. 3. Damages for deprivation of liberty.”
The application was supported by an affidavit and exhibits used in the motion ex parte as well as a further affidavit to which was attached a certified record of the proceedings, Exhibit ACJ “A”.
The application was opposed by an eighteen paragraph counter-affidavit deposed to by Her Worship, hereinafter referred to as the respondent, which was supported by yet another affidavit deposed to by one Idris Abubakar, the clerk of Court to the Chief Magistrate’s Court No.8, Kano.
After due consideration of affidavit evidence of the parties including submissions of counsel, Kolo, J., of the Federal High Court, Kano Division dismissed the application in its entirety in a Ruling handed down on 3rd May, 1988.
It is against this ruling that the applicant, hereinafter referred to as appellant, has appealed to this court having filed four grounds of appeal.
- Whether the conduct of the appellant in the proceedings in the case before the learned trial Magistrate (the respondent) was contemptuous.
- Whether the act or order of the respondent was protected under any law.
- Whether having regard to the evidence before the trial Judge his findings were perverse or supportable.
- Whether the rights enshrined under chapter IV of the 1979 Constitution were available to the appellant.
⦿ RESOLUTION OF ISSUE(S)
- ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. With practically nothing to commend the contradictory affidavit evidence of the respondent and that of Idris Abubakar which was offered in support of the respondent’s, and guided by the record of proceedings, I am of the firm view that there was nothing to show any contemptuous or disrespectful interference by the appellant in the course of the proceedings of the court throughout the stage he was moving the motion. Of course, this could have been the end of the respondent’s consideration of the case, Suit No. KA/70/C8/87 on 22nd December, 1987, having, as earlier noted, signed off and dated her record. But this was not to be Guided by the record, it is clear that the respondent suo motu confronted the appellant to some dialogue wherein she pontificated to him regarding his future submissions in courts. That pontification heralded the beginning of Part 2 of the drama, and had earlier been reproduced in this judgment: it starts from immediately after the first signing off by the respondent at page 62 to the second signing off at page 63. In my humble view, the event recorded above seems to me to be extra-judicial in the sense that it cannot be said, in all honesty, that it either formed part of the proceedings of the application made by the appellant on behalf of his client, the accused or part of a new matter in which appellant had any interest because the Ruling in connection with appellant’s client had, as earlier stated, been adjourned to 22nd January, 1988. Some glaring observations about the content of Part 2 are that they are disjoined and rather tendentious. Its disjointed nature coupled with the affidavit evidence of the respondent, which was disturbingly in conflict with that of Idris Abubakar and the record of proceedings, leaves one with the profound feeling that it was a make-up – a mere after thought proffered to fill up the missing portion of Part I in order to justify the act of the respondent. Unfortunately, this anomalous feature of the record did not attract the attention of the lower court which was deeply enmeshed in the scope and content of judicial immunity available to the respondent both under the statute and the case law. I think that Part 2 – a makeshift recordation – should be safely ignored, moreso as it was completely extraneous to the matter the learned respondent was invited to consider in the application moved by the appellant.
ii. Even if one does not ignore Part 2 as a belated supplementation of part 1, one is still left with the fact that the incident re-captured by the content of Part 2 remained extra-judicial. It is extra-judicial because the respondent having adjourned and signed off the matter for which the appellant appeared as counsel, the judicial proceedings in relation to that case became terminated. Now, suppose the respondent at that stage tried to exchange pleasantries with the appellant – it being only three days to Christmas Day and the appellant, not being interested, ungraciously walked out on the respondent. Again, suppose appellant’s assignment in court having terminated in such circumstances described above, and as he was about to leave the court the respondent requested him to take a letter and deliver same to X – a deplorable sad, but common experience in our lower and higher courts but the appellant was uncompromisingly unobliging. Could either of such situations be said to have occurred in the discharge of the respondent’s judicial duty? Secondly, could the respondent in either case regard the situation as contemptuous and proceed to deal with the appellant for his recalcitrancy? My answer to each question is unhesitantly in the negative. This is because each circumstance was first, extra-judicial and second, not contemptuous.
- ISSUE 2 WAS ANSWERED IN THE NEGATIVE, AND HENCE RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. I am in full agreement with the submission of respondent’s counsel that the provisions of Sections 88(1) and 91(1) are identical and virtually word for word, save that while the former relates to Judges of the High Court the latter provided for immunity of presiding officers of the inferior courts. The effect is far-reaching because both provisions have shown that the common law distinction regarding the immunity between judicial acts of superior and inferior courts is no longer tenable. It seems quite clear that in order to sustain the immunity of a Judge or a magistrate, under either of the two statutory provisions, the offending act must be shown to have been done in good faith. The complaint in the instant case is not whether or not the respondent acted within the limits of his jurisdiction as much as whether or not the act of the respondent was done in the discharge of his judicial duty. It would be recalled that I had already held that the act of the respondent was extra-judicial. It seems patently clear that the respondent, with respect, was using the sledge-hammer of contempt as a subterfuge to visit the appellant for his style of advocacy which was unacceptable to her. This lucidly demonstrates the bad faith with which the respondent reacted to the conduct of the appellant in the adjourned case where the latter appeared as counsel to the accused. In that premise, it is my considered view that the extra-judicial act of the respondent, which was not done in good faith, is legally indefensible and cannot be protected under Section 91(1).
- ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. If, despite the persistent insistence by the appellant that his submissions be properly recorded and this was not in fact done, as the record clearly shows, then with respect, the learned trial Judge’s holding and castigation that the appellant’s “behaviour bordered on youthful exuberance and unwarranted” to say the least, were unfortunate. The findings by the lower court, in this regard, were unquestionably not borne out by the affidavit evidence before the court, they were perverse.
- ISSUE 4 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The result is that I again resolve Issue No.3 in appellant’s favour. The fourth and last issue in this appeal is whether the rights enshrined under Chapter IV of the 1979 Constitution are available to the appellant. We have in the course of this judgment established that the conduct of the appellant was not contemptuous and yet without trial or conviction and without powers – statutory or otherwise – the respondent unjustifiably caused the detention of the appellant under circumstances which were extrajudicial. The contention of the appellant in relation to the first relief sought for the removal from the High Court for quashing the second purported proceedings of the 22nd December, 1987 and the order of committal and detention of the appellant has been satisfactorily made out, all the issues canvassed in the appeal under the four grounds of appeal having been resolved in appellant’s favour.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Achike JCA
What should be the proper approach to the award of damages in the instant case? There appears to be some measure of consensus that the appellant was detained in the cell for about 10 minutes. Be it noted that this was neither in the usual Police cell at a Police Station nor was the appellant detained at the regular Federal prisons. I also bear in mind the candour of Mr. J .B. Majiyagbe, the learned Senior Advocate for the appellant that his client was more enthusiastic on quashing the vexed proceedings and to a lesser degree the apology, and least of all the question of damages. This is perfectly understandable because, as may be gathered from the record of proceedings and the briefs of the parties, the appellant is a legal practitioner in the legal firm of “J. B. Majiyagbe and Co.” The reputation of the appellant and that of his firm which is headed by a Senior Advocate of Nigeria had been under fire. It is that reputation that calls for protection. This cannot be achieved, in my humble view, by compensatory damages, not even aggravated or exemplary damages. Taking all these into consideration, I think the ends of justice in this case would be met if the court declines to award damages.
⦿ REFERENCED (STATUTE)
Section 88(1) of the Lagos State High Court Law and Section 91 of the Kano State Magistrate Court Edict 1987. First Section 88(1), It provides that “No Judge shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believed himself to have jurisdiction to do or order to be done the act in question.”
Section 91(1) on the other hand states that: “No magistrate or justice of the peace shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not the act was within the limits of his jurisdiction, provided that he, at that time and in good faith, believed himself to have jurisdiction to do or order to be done the act in question.”
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
The citizen’s right to remain silent has for long been firmly recognised and established under the common law. In Rice v. Connolly (1966) 2 All E.R. 649 at p.652, the Lord Chief Justice opined: “The whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority and refuse to accompany those in authority to any particular place short of course of arrest.” Today, this right has been expressly preserved under Section 33(11) of the Constitution of the Federal Republic of Nigeria 1979. If, therefore, the appellant was not on trial and an irrelevant question was put to him, even by a judicial authority, it would seem to me that the necessity or obligation to answer such question cannot arise. It is trite that relevancy of facts is of paramount importance in our adjectival law. That paramountcy has been given conspicuous expression in Part II, Sections 3, 6 to 13 and 15 to 18 of the Evidence Act. – Achike JCA. Adeyemi v. Edigin (1990)
A court has a duty to disallow a question which is not relevant to the proceedings; but a question which is relevant can freely be put to a witness and must be answered, although the weight to be attached to the answer is an entirely different matter. Thus relevance and admissibility are closely knit together while the question of weight appertains to the province of evaluation and should, as always, be kept in separate compartment. – Achike JCA. Adeyemi v. Edigin (1990)
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 administration of law into disrespect. The twin elements of contempt of court are, therefore, interference and disrespect. The aim of the law of contempt of court, therefore, is to protect the dignity of court from any conduct that tends to obstruct or interfere with the administration of justice. – Achike JCA. Adeyemi v. Edigin (1990)
One would note that the court’s power to punish for contempt is as old as the courts themselves. In the celebrated case of Atake v. The President of the Federal Republic of Nigeria (1982) 11 S.C. 153, the Supreme Court, per Idigbe, J.S.C., had decided that the power of the court to punish for contempt is inherent and indeed preserved under Sections 6 and 36(3)(a) of the 1979 Constitution. It is undoubtedly a sine qua non to the smooth and proper administration of justice and ought to be preserved. It belongs to the realm of discretionary powers of the court. But the courts have recognised its uniqueness and have cautioned that the power to punish for contempt should be invoked sparingly. – Achike JCA. Adeyemi v. Edigin (1990)
Clearly, it seems to me that the discretionary power of the court to punish for contempt is reviewable. Any reviewing authority is undoubtedly invited to make an objective assessment of a matter under consideration. To, therefore, hold as the lower court did, that the test regarding the power of the court to punish for contempt is subjective, is with respect, unacceptable. – Achike JCA. Adeyemi v. Edigin (1990)
From the foregoing, I am unable to hold that the extra-judicial vituperative exchanges between the appellant and the respondent in the peculiar circumstances of this case amounted to contempt of court. On the contrary I think that the invocation of the power of contempt in the instant case bordered on abuse of judicial authority. It is clearly improper and will expose the administration of justice to ridicule if a magistrate or a presiding officer of an inferior court were invested with such extraordinary powers to provoke unnecessary extra-judicial verbal exchanges with counsel or a member of the public and yet invoke against him the lethal and drastic power to punish for contempt. – Achike JCA. Adeyemi v. Edigin (1990)
Otapo v. Sunmonu (1987) 2 N.W.L.R. (Part 58) 587, per Belgore, J.S.C., at p.624, has stressed the importance of proper recording of proceedings: “It is in the interest of justice that all that is said or raised in court during hearing be taken down in writing that is, be properly recorded. When this is not done and it is through the affidavit of parties that the true records could be known, questions will usually be asked why the court adopted such a procedure.” – Achike JCA. Adeyemi v. Edigin (1990)