Contempt of court-Solicitor not conducting cause for which he was engaged-Liability under Order XVI, rule 13.-Guilt of person charged must be proved according to law-Proceedings for contravention of Order XVI, rule 4 are proceedings for criminal offence and so provisions of section 285 of the Criminal Procedure Act dealing with the manner of hearing must apply.

Contempt of Court-Where punishable brevi manu in Court no warrant necessary-In other cases proper procedure of apprehension, charge, prosecution etc., must be followed.

Appeal from the High Court (South-East).

HELD:

(1)     It is not every act of discourtesy to the court by Counsel that amounts to contempt nor is conduct which involves a breach by Counsel of his duty to his client necessarily in this category. In the present case, whilst the appellant may have been guilty of dereliction of his duty to his client by failing to appear for the application for bail, that was however not how the trial Judge had dealt with the matter and there is nothing on the record to justify any view that he committed a contempt of the court.

(2)     Order XVI, rule 4 applies as well to criminal proceedings and it follows from the provisions of these rules that a breach of rule 4 incurs the liability "for a first offence to a fine not exceeding £50 without prejudice to the powers of the court to suspend... from practicing in any court within the jurisdiction of the court (see Order XVI, rule 13).

(3)     In this case, the trial Judge wrongly took the view that Order XVI, rule 4 of the High Court Rules deals with contempt in facie curiae. It does not. If as he contended, the solicitor did not conduct the cause for which he was engaged by a party, then he would incur the liability prescribed by Order XVI, rule 13. That rule clearly involves a conviction for, or finding guilty of, an offence and in those circumstances the guilt of the person charged must be proved according to the law until this is no proved he could not be held liable. Therefore the proceedings for contravention of Order XVI, rule 4 are proceedings for a criminal offence and in the holding of such proceedings the provisions of section 285 of the Criminal Procedure Act dealing with the manner of hearing must apply and were not applied here by the trial Judge.

(4)     In concluding his judgment the trial Judge had refrained from using words such as "guilty" or "conviction" or cognate expressions. However, there was not doubt as to the substance of the entire proceedings; the appellant was asked to plead whether he was guilty or not and he did then plead "Not guilty" and the enquiry was to ascertain the rightness of his plea. The law should be, and indeed is, able to encompass the subtle as well as the obvious infraction of it and a finding of guilty of a criminal offence where the procedure prescribed by law had not been followed in the preceding investigation, whatever is the phraseology in which the finding is couched, could not be allowed to stand.

(5)     The interlocutory parts of the two warrants issued for the arrest of the appellant on the 5th June, 1969, and the 9th June, 1969 referred to complaints having been made on oath against the appellant. No such evidence was shown to exist.

(6)     The judge ordered the appellant to be arrested with a bench warrant but warrants used in arresting him on both occasions were clearly not bench warrants and were clearly false to the extent that they were regarded as such.

(7)     Where contempt of court is punished brevi manu in court no warrant is necessary for the apprehension of the offender as he is always in court and the contempt is stated to have been committed Coram judice: but in other cases the proper procedure of apprehension or arrest, charge, prosecution etc., must be followed and if followed will obviate the necessity of having to amend the processes in so distasteful a way as had happened in this case. Consequently the appeal must be allowed.

Appeal allowed: judgment of High Court set aside: order of discharge and acquittal entered in favour of appellant.

Cases referred to:

Izuora v. Regina [1953] A.C. 327.

The Queen v. Lefroy [1873] L.R. 8. Q.B. 134.

The Queen v. Judge of the Brompton County Court and Vague [1893] 2 Q.B. 195.

Morris and ors. v. Master of the Crown Office (Times, 11th February, 1970 p. 13 Court of Appeal).

Act referred to:

Criminal Procedure Act section 285.

Rules and Orders referred to:

Order XVI, rule 4 of the High Court Rules (E.R.).

APPEAL from the High Court (South-East).

Lardner for the Appellant.

Ekong (Ag. S.S.C.) for the Respondent.

Coker, J.S.C. (delivering the judgment of the court):-Ene Ene Oku, a legal practitioner, has appealed to this Court against his conviction by Bassey, J. (High Court, Calabar). The appellant was on the 12th June, 1969, so found guilty of contravening the provisions of Order XVI, rule 4 of the Eastern Nigeria High Court Rules, 1955 (operative in the South-Eastern State), which the learned judge seems to have treated as a form of contempt of court, and sentenced to a fine of £11. The circumstances leading to the conviction and sentence of the appellant are not unusual but the complaint before us turned on the approach of the learned trial Judge to the whole matter. An accused person in a criminal proceeding (Charge No. C/2C/69) pending before the court, Jerome Agabi, had apparently retained the services of the present appellant. Pursuant to this the appellant had filed in court and before the learned trial Judge a motion dated the 21st April, 1969, asking the court to grant bail to Jerome Agabi pending the hearing of his case. There was some argument later as to whether the accused had retained the services of the appellant only for the purpose of getting him out on bail or for defending him in the entire proceedings in accordance with the affidavit of the appellant himself when he stated that-

"my services have been retained by the accused to defend himself."

In other circumstances a great deal might depend on the resolution of this argument but in view of the approach of the learned trial Judge to the matter the point is not of much importance.

To continue the narrative, after some adjournments the motion was listed for the 5th June, 1969, and the appellant was present in court when the date was fixed. On the 5th June, 1969 when the case was called, however, the appellant was absent from court and the trial of the accused commenced, the accused being ready to defend and in fact defending himself. The learned trial Judge on that day made an order in the following terms:-

"a bench warrant to issue to Mr Oku to explain why he should not be committed for contempt of this Court."

In time the appellant was arrested by virtue of a warrant dated the 5th June, 1969 the introductory part of which reads as follows:-

"Complaint on oath has been made on the 5th date of June, 1969 by police, that E. E. Oku, Esquire hereinafter called the defendant, on the 5th day of June, 1969 at High Court, Calabar in the Calabar Judicial Division aforesaid, did absent himself from court without sending an explanation to the court explaining his absence, thus showing disrespect to the court."

It seems that the learned trial Judge had ordered that the appellant be produced before him on the 9th June, 1969. On that day, however, the appellant was not produced and the learned trial Judge entreated the appellant's bail and ordered that he should be rearrested on a fresh warrant and brought before him on the 11th June. The introductory part of the second warrant dated 9th June, 1969, is as follows:-

"Complaint on oath has been made on the 9th day of June, 1969 by police that E. E. Oku, Esquire hereinafter called the defendant on the 9th day of June, 1969 at High Court, Calabar in the Calabar Judicial Division aforesaid, did absent himself from court after having signed a recognisance to appear in court on 9-6-69. Thus showing disrespect to the court. And for failing to appear to conduct a case in which he had already appeared."

On the 11th June, 1969, the appellant was produced before the judge who then proceeded to address the appellant thus:-

"Mr E. E. Oku, you as a solicitor of the Supreme Court of Nigeria, having duly appeared to defend charge No. C/2C/69 before this Court and in particular having appeared on 12-5-69 when the case was adjourned to 5-6-69 failed to appear to defend the accused without the prior permission of this Court to be absent contrary to Order XVI, rule 4 of the High Court Rules, 1955 of the former Eastern Nigeria, still applicable to the South Eastern State of Nigeria.

What have you to say, are you guilty or not guilty?" The appellant pleading not guilty appeared by Counsel who contended that his client's instructions were limited to the application for bail and certainly not for conducting the entire defence. The appellant's Counsel also contended that the appellant (not-withstanding he was represented by Counsel) had addressed the court at some length (not giving evidence be it noted) the learned trial Judge endorsed his records thus:-

"adjoined to 13-6-69 for judgment."

However, on the 12th June, 1969, the learned trial Judge delivered a reserved judgment in which he recounted the circumstance preceding the present proceedings and grounding them including the complaint already referred to by us against the appellant. In the judgment the learned trial Judge observed as follows:-

"In view of Mr Oku's defence one would have thought that the most appropriate thing for him to do was to plead guilty and apologise. But Mr Oku pleaded not guilty and was represented by Counsel.

He elected to offer his explanation through his Counsel."

The judge then rejected the explanations of the appellant for being absent from court on the 5th June, 1969. He considered the case of Izuora v. Regina [1953] A.C. 327 where the Privy Council considered the provisions of Order XVI, rules 11 and 19 of the Rules of the Supreme Court of Nigeria (Which are in pari materia with rules 4 and 13 of Order XVI of the Eastern Nigeria High Court Rules) and observed that Izuora's conduct did not constitute a contempt of court. The learned trial Judge observed in respect of Izuora's case as follows:-

"Their Lordships also held that what Izuora did was discourtesy and did not go over the border to criminal contempt of court.

But I think Izuora's case is distinguishable from the present case. In that case he had finished conducting the case and therefore the need for him to appear was not as urgent as in this case. That case was a civil case while this is a serious criminal case.

Again in Izuora's case a sentence of imprisonment was imposed which was not provided for under rule 19 of Order XVI of the Supreme Court Rules under which the learned judge acted. This seems to be from the speech of Lord Tucker, what weighed on the mind of the Privy Council."

At the end of the judgment he stated as follows:-

"I therefore find that the defendant has violated the provisions of Order XVI, rule 4 of the High Court Rules, 1955."

On the appeal before us a number of grounds of appeal were filed and argued on behalf of the appellant but it is only necessary to deal with one of them which states:-

"3.     The learned judge misdirected himself in law in that having initiated proceedings under Order XVI, rule 4 of the High Court Rules (E.R.) he proceeded to found his judgment, as stated by him in the first paragraph thereof, as on a "contempt of court."

In the course of the argument of this ground of appeal by learned Counsel for the appellant, Mr Ekong, Senior State Counsel, who appeared for the respondent, frankly told the court that he was not longer supporting the conviction of the appellant. We think he took the wisest step in the circumstances but nonetheless in view of the importance of this matter we propose to write a judgment.

It is beyond doubt that what was tantamount to a criminal charge was framed by the learned trial Judge and read over or caused to be read over to the appellant. He was then requested to, and indeed did, plead to that charge. In that charge the conduct of the appellant is stated to have breached the provisions of Order XVI, rule 4 of the High Court Rules. The rule reads as follows:-

"Every solicitor who shall be engaged in any cause shall be bound to conduct the same on behalf of the plaintiff or defendant as the case may be for whom he shall have so engaged, until final judgment, unless allowed by the court for any special reason to cease from acting therein; but he shall not be bound, except under express agreement, or unless re-engaged to take any proceedings in relation to any appeal from such judgment."

At this juncture it is well to refer to a point which was raised before the learned trial Judge concerning the import of this rule. It was submitted on behalf of or by the appellant that the rule in envisaging a "cause" in contradistinction to a suit does postulate that an application for bail for an accused person constitutes by itself cause without necessarily including the conduct of the entire defence. We think that the submission is misconceived. Whilst we are not prepared to say that a legal practitioner may be instructed only for purposes of applying for bail for an accused person we think it right to point out that by virtue of the definition of "cause" in section of the High Court Law, Cap. 61 (Laws of Eastern Nigeria, 1963, operative in the South Eastern State) a criminal proceeding is implied thereby. On the 5th June, 1969, when the trial of the accused Jerome Agabi commenced, the application for bail had not yet been disposed of and had in fact been adjoined to that date. A failure to attend court on that date, even if it be merely for the purpose of applying for the bail of the accused, is clearly envisaged by Order XVI, rule 4. The learned trial Judge however did not deal with the matter on that basis but seemed, for reasons which are not clear from the records, to take the view that the appellant was retained for the entire defence of the accused person although it is surprising that the accused himself said nothing on this point.

In the proceedings on appeal, the learned trial Judge manifestly dealt with the appellant as if he had been charged with contempt of court and exercised a summary jurisdiction which in appropriate cases is exercisable by a superior court of record such as the High Court. The power to punish summarily for a contempt in the face of the court is undoubted and when a contempt is committed in facie curiae a superior court of record is entitled to punish it by fine and/or imprisonment as part of the jurisdiction of the court to prevent brevi manu any attempt to interfere with the administration of justice. As Cockburn, C.J. said in The Queen v. Lefroy [1873] L.R. 8. Q.B. 134 at p. 137:-

"It is perfectly true that it is laid down by authority, and reason shows the correctness of the rule, that all courts of record have power to fine and imprison for any contempt committed in the face of the court; for the power is necessary for the due administration of justice, to prevent the court being interrupted.. In the case of the superior courts at Westminster, which represent the one supreme court of the land, this power was coeval with their original constitution, and has always been exercised by them."

See The Queen v. Judge of the Brompton County Court and Vague [1893] 2 Q.B. 195; also the recent English case of Morris & ors. v. Master of the Crown Office (Times, 11th February, 1970 (p.13) Court of Appeal).