A. U. DEDUWA & ORS (APPELLANT)

v.

THE STATE (RESPONDENT)

(1975) All N.L.R. 1

Division: Supreme Court

Date of Judgment: 27th February, 1975

Case Number: Suit No. S.C. 424/74

Before: Coker, Sowemimo and Ibekwe, JJ.S.C.

Appeal from the High Court, Warri.

The appellants who were some of the parties to a civil action before the Warri High Court, wrote a letter to the court's Registrar asking him to bring the letter to the attention of the learned trial Judge. They charged the judge with bias and other types of insinuation in the letter, and further requested that the trial Judge should not try their case, but transfer it to another court. The letter was purely contemptuous of the court.

Having received the letter, and in the open court, the trial Judge called out the appellants one by one and compelled them to choose either the dock or the witness box from where they might show cause why they should not be punished for contempt of court.

One after the other, the appellants chose the witness box, they were sworn, and subjected to rigorous questioning by the learned trial Judge, after which he found them guilty and sentenced them. On appeal to the Supreme Court,

HELD:

(1)     That the inherent jurisdiction of a court of record is to punish for contempt, and not to try for the purpose of finding the contempt nor guilty; that the compulsion of the appellants to go into the witness box in their defence is a breach of the provisions of s.22 (9) of the Constitution of Nigeria and that all the learned trial Judge should have done in the circumstances was just to ask the appellants into the dock where they might show cause and punish them accordingly.

(2)     That s.22 (10) of the Constitution preserves the right of the court to 'punish' for contempt but not to try except in accordance with the provisions of the other subsections of s. 22.

Appeal allowed.

Cases referred to:

A. U. Deduwa & ors. v. E. A. Okorodudu & ors. Suit No. W/22/68 W/28/69 (CONSOLIDATED).

Migual Sanchaz and Compania S.L. v. Owners of the Result.

(Nello Simoni Ltd: Third Party) The Result (1958) 1 All E.R. 839.

Abachom v. The State (1970) 1 All N.L.R. 69 at 78.

Boyo v. Attorney General of Mid-West State (1971) 1 All N.L.R. 342.

Statute referred to:

Constitution of the Federation, 1963, S.22.

APPEAL from the High Court, Warri.

Suit No. S.C. 424/74.

Dr M. Odje for the Appellants.

Mr A.N.E. Gbemudu, D.P.P., Mid-Western State, (with him Mr P. Onakughotor, Acting P.S.C. Mid-Western State) for the Respondent.

COKER, J.S.C. (Delivering the Judgment of the court):-In the High Court, Warri, presided over by Atake, J., the three appellants were cited for contempt of court and were sentenced each to a fine of N100 or six months imprisonment I.H.L. The gravamen of the offence was that during the pendency of proceedings in which they were parties, they caused a letter (admitted in evidence in the contempt proceedings as Exhibit "A" to be written and handed to the Registrar of the court of the attention of the learned trial Judge. The letter Exhibit "A" reads in full as follows:-

"The Registrar,

High Court of Justice,

Warri.

Dear Sir,

Suit No. W/22/68 and W/28/69 (CONSOLIDATED) A.U. DEDUWA & ORS. E. A. OKORODUDU & ORS.

With every respect and humility we above-mentioned, for ourselves and on behalf of the Eribregbe family of Ogunu, near Warri, like to bring through you to the attention of the Honourable Mr Justice Franklin Atake our serious apprehensions and fears over his trying the above civil case.

(1)     The Itsekiri Communal Land Trustees are a party to this case.

(2)     All the other 13 defendants are Itsekiris.

(3)     We as plaintiffs in W/22/68 and as defendants in W/28/69 are Urhobos. We are not Itsekiris.

(4)     The Honourable Justice Atake is an Itsekiri and one of the beneficiaries of the Trust.

(5)     We honestly believe that there is a likelihood of bias on the part of the judge if he tries the case.

(6)     We honestly believe that the Honourable Judge will be a judge over a matter in which he has vested interest.

(7)     We were in court on 5.11.73 when the Honourable Judge sent Mr Erastus Okoromadu and Mr London Opi Okotete to prison for six months each for telling the judge in open court that he should not hear their case in W/115/69 because he is an interested party. We are very afraid that we may suffer the same fate of imprisonment if we tell the judge in open court.

(8)     Please bring to the attention of the Honourable Judge our humble request that this matter should be transferred to a judge who is neither an Urhobo man nor an Itsekiri man for trial.

(9)     We have no intention of showing any disrespect for the Honourable Judge but we feel very strongly about our humble request. The same judge on 19.11.73 granted us leave to appeal from his rulings to the Supreme Court and we are on our way to the Supreme Court already.

Yours faithfully

(1) (Sgd.) A.U. Deduwa CHIEF A. U. DEDUWA

(2) (Sgd.) S. O. Ologide CHIEF S. O. OLOGIDE

(3) (Sgd.) Chief P.O. Arumure CHIEF P.O. ARUMURE

(All on Behalf of Eribregbe Family of Ogunu)"

The circumstances surrounding the writing of Exhibit A and the presentation of it concern the reaction of the appellants and perhaps others of their calibre to the turn taken by the proceedings before the court. In Suit No. W/22/1968 the appellants, as members and representatives of the Eribregbe Family of Ogunu Village, had sued three sets of defendants as follows:-

(i) Two persons as representing themselves and the Yonwuren and Agbeje families of Ugbuwaguen Village;

(ii) The Itsekiri Communal Land Trustees; and

(iii) Shell/BP Petroleum Development Company of Nigeria Ltd.

The plaintiffs claimed against the defendants title and consequential reliefs in respect of land lying, situate in Ogunu Delta Province of the Mid-West State. Again, in Suit No. W/28/69 instituted in the same court, the appellants were sued as defendants "for themselves and on behalf of their village" along with Shell/BP Development Company of Nigeria Limited by two persons claiming for "themselves and on behalf of Yonwuren and Agbeje families of Ugbuwanguen Village." The action was for title and consequential reliefs in connection with "that piece or parcel of land lying and situated in Ogunu/Ugbuwanguen Warri Division." It appears from the records that the parties freely and frequently amended their claims although it is hardly possible to see that any orders of the court were sought and/or obtained for the several amendments. These amendments concern the phrasing of the writ and the nature of the several claims. But of far more important consequences are the amendments which were sought and granted concerning the parties to the actions. In Suit No. W/22/68, the persons representing the first set of defendants were changed and substituted by other two persons and two other sets of defendants, one representing the Agbamu Family of Ubeji Village and the other representing the Egharagbemi Iyatsere Family of Ubeji, were added. Similarly, in Suit No. W/28/69 two other sets of plaintiffs were added, i.e. (1) the Itsekiri Communal Land Trustees and (2) some ten persons claiming to represent the "Ubeji Community." Both actions were listed before the learned trial Judge on the 23rd October, 1973. In respect of Suit No. W/22/68, the learned trial Judge made the following order:-

"COURT:- Adjourned 19th November to 23rd November, 1973 for hearing."

In respect of Suit No. W/28/69, the learned trial Judge made the following order:-

"COURT:- Adjourned 19th to 23rd November 1973 for hearing and it being agreed by Counsel for all the parties this case is hereby consolidated with W/22/68 for hearing on the same day."

It is pertinent to observe that throughout these proceedings all parties to the action were represented by Counsel and indeed the present appellants were at all stages of the proceedings so represented. On the 6th November, 1973, learned Counsel argued before the learned trial Judge a motion asking that the two additional sets of defendants in Suit No. W/22/68 should be allowed to merge and present a common defence. It is difficult to appreciate the reason for the application since those defendants could have, in any case, without any order of court, filed the same or similar defence. The motion was vehemently opposed with respect both to its form and its substance by Dr Akpojaro, learned Counsel for the plaintiffs in that case. We observe that they are the present appellants. The learned trial Judge however overruled the many technical and manifestly unnecessary objections and granted the prayer to merge the two sets of defendants. The learned trial Judge delivered a written ruling in the course of which he stated as follows:-

"Ruling":- I have had occasion to rule on the submission that a court having picked some people to represent a community as defendants is precluded from varying the order. I cannot see that the choice of defendants' representatives made by a court is such an order as can be said to have determined any rights of the parties either interim or finally. The only consideration that should in my view weigh with the court is prejudice. Will the plaintiffs or some others be prejudiced by the court making a new choice of defendants representatives? If so the court should make no new choice. If not it could. In the instant case there clearly are two families making up a community. They appear to have a disagreement between them but both families have an interest in the case in court which came to their notice. On account of their internal squabble the two families joined separately but on account of that internal squabble could not file separate defences up to now. They resolved their differences and now say that they wish to defend for the entire community. I can see nothing wrong in that. Instead of delivering two identical defences they wish to deliver one jointly. I think they should be allowed to do so. The plaintiffs are not prejudiced in any manner. No one is.

The affidavit has made it clear the applicants are out of time and Dr Akpojaro has kindly drawn my attention to the long period in which the applicants have done nothing. That can be met with costs more so as he himself has done nothing since the defendants' time expired.

Both arms of the application are allowed and the 5th to the 14th defendants are hereby allowed to defend this suit for themselves and on behalf of the Ubeji community instead of the Agbamu and Egharagbemi families of Ubeji. And it is hereby ordered that the 5th to 14th defendants shall file their statement of defence within two days from today. All papers, pleadings and documents in this case shall be amended accordingly to reflect the position as now constituted."

On the same date, Suit No. W/28/69 was mentioned and a motion was argued by learned Counsel to the effect that the Itsekiri Communal Land Trustees on the one hand and the representatives of the Ubeji Community on the other hand should be joined as plaintiffs in that action. The original plaintiffs stated they had no objection to the application but it was opposed by learned Counsel for the appellants who were defendants in that case, that is the present appellants.

The learned trial Judge again overruled the objections of the defendants on the 7th November, 1973, when he delivered a written ruling as follows:-

"Ruling:- There clearly is no doubt on the affidavits deposed to by the two groups of applicants that they have a material interest in the land in dispute and that their interest stands to be materially affected by any decision reached in this case. The reference by Dr Akpojaro to the case of Migual Sanchaz and Compania S. L. Vs Owners of the Result (Nello Simoni Ltd: Third Party) The Result [1958] 1 A.E.R. 839 is useful but that decision is not applicable to this case. In this case the applicants are applying to litigate the subject-matter of this suit and not some extraneous subject-matter as was the case in The Result (ibid). The presence of the applicants is indeed necessary to enable the court effectually to determine all the issues in controversy in this suit. The application is accordingly allowed and the applicants are hereby joined as plaintiffs in the terms of their prayers in the motion paper. Order as prayed.

Consequential Order: The plaintiffs to file their amended writ of summons and amended statement of claim within two days and the defendants to file their amended statement of defence within 7 days. Costs to respondents assessed at 10 guineas to the 1st to 4th defendants/respondents and 5 guineas to 5th defendants/respondents. Service of the pleadings to be effected on Counsel after payment of the necessary fees."

On the 19th November, 1973, however, learned Counsel for the defendants in Suit No. W/28/69 (i.e. the present appellants) moved a motion for leave to appeal to the Supreme Court against the interlocutory orders made by the learned trial Judge and such leave was granted by him. The learned trial Judge ruled on the motion for leave as follows:-

"Court:-Order as prayed. The applicants are at liberty to appeal against the interlocutory rulings provided this does not hinder the hearing of this case which is one of the oldest and which is now fixed for hearing from day to day."

After the granting of his application for leave to appeal to the Supreme Court, learned Counsel appearing for the present appellants requested the court to stay proceedings in the consolidated actions until the hearing and determination of the appeal which he proposed to lodge. The learned trial Judge refused to stay the proceedings and on that issue ruled as follows:-

"Ruling:- I agree that ordinarily it would have been best to say 'go and argue the points and come back with your results'. But experience has shown that owing to the large volume of cases that go before an obviously over-worked Supreme Court it has never been possible to have appeals heard expeditiously as might be expected not even interlocutory appeals. And it certainly is not my intention to further delay the hearing of the case. It has been delayed for too long. The case will proceed as scheduled."

At this stage, when the learned trial Judge had ruled that he would not stay the proceedings, learned Counsel for the present appellants then informed the court that his clients had "gone away" and asked for an adjournment until the following day. He apologised for the action of his clients which by all standards must be considered as irresponsible and the learned trial Judge adjourned the proceedings at his request and at his instance to the following day.

What happened on that following day, i.e. the 20th November, 1973, constitutes the main facts of the contempt proceedings. The letter Exhibit A (reproduced earlier on in this judgment) had apparently been handed over to the Registrar of the court and put in the hands of the learned trial Judge who then observed as follows:-

"Court:-Before this case proceeds, I must deal with the attempt by some members of the community to scandalise and impugn the integrity of this Court. I refer to a letter I have just received this morning written by one-

1.      Chief A. U. Deduwa

2.      Chief S. O. Ologide; and

3.      Chief P. O. Arumure

and which I will cause to be read out to them shortly

The three people are called out of the well of the court and put into the dock. The letter dated the 19th November, 1973 and purported to be signed by them is read out to them by the Clerk of Court."

The learned trial Judge then by himself retold the whole story of what transpired in his court the previous day and touching upon the conduct of the appellants in walking away from the court on the 19th November, 1973, and then, the learned trial Judge observed as follows:-

"Court:- And then you come this morning to give me this letter attacking and scandalising this Court and me as a judge thereof? The letter is tendered, admitted and marked Exhibit "A".

I consider the entire conduct of the three of you a gross affront on this Court, a scandalising of this Court and the judge thereof and a contempt of this Court. This is a court duly constituted under the Constitution and Laws of this country and I am a judge duly appointed to preside thereat and who has taken oath of allegiance and the Judicial Oath. This is not an Itsekiri Court or an Urhobo Court. Your letter is a direct attack on the court and on the judge. You are saying in effect that I am not morally capable to be a judge and that is the scandal. If I have a personal, financial or proprietary interest in the subject matter of any suit I know by reason of my Judicial Oath to refuse to adjudicate on the matter. But certainly not from your queer concoction of a Trust and a Beneficiary. I consider you are in contempt of this Court and you will show cause why you should all not be punished for the contempt."

After this, the learned trial Judge, still by himself, spoke to each of the appellants one by one and questioned him thus:-

"Where do you want to show cause-

(1)     either you stay in the dock and say nothing, speak from the dock and be not questioned or speak from the witness box and be subject to cross-examination?"

The 1st appellant, Chief A. U. Deduwa, elected to go into the witness box; he was sworn and was subjected to some manifestly unpleasant interrogation by the learned trial Judge himself. In the same way, the 2nd appellant, Chief S. O. Ologide, was put to his election as to where to show cause and he also elected the witness box, when he was sworn and thereafter, like the 1st appellant, subjected to some rigorous questioning by the learned trial Judge. Similar proceedings took place with respect to the 3rd appellants, Chief Philip O. Arumure. Manifestly, the three appellants knew very little about the contents of the letter Exhibit A and certainly they did not understand the meaning and import of the more pungent expressions in that letter. They all denied that their lawyer wrote out the letter for them to sign or suggested the contents to them. After the questioning, the learned trial Judge endorsed his record thus:-

"Case for defence."

and then proceeded to write a ruling which he prefaced as follows:-

It is to me clear that the conduct of the three accused persons is calculated and deliberate and sprang from some advice given to them by their lawyer even though they deny it."

The learned trial Judge referred to the implications of the letter Exhibit A and observed in his ruling as follows:-

"Every judge in this country belongs to one tribe or the other. It is our set-up, unfortunately: but that does not mean that the judge lets himself to tribal considerations when adjudicating on a matter before him. The whole conduct of the accused person beginning from yesterday to today is one stretch of subjecting the court to contemptuous treatment. It must not be. It has to be stopped and stopped firmly."

He finally, in the course of his ruling, observed thus:-

"I am of the view that each of the three accused persons have not shown sufficient cause and I accordingly find them guilty of Contempt of this Court."

He then awarded sentences against them as follows:-

"Each is accordingly sentenced to a fine of N100.00 or in lieu of payment six months imprisonment with hard labour. In addition each is to enter into Bond to keep the peace and to be of good behaviour generally for one year, in the Sum of N1,000.00 in self recognisance."

These appeals before us are described as appeals against their convictions by the appellants. It was feebly sought to argue by learned Counsel for the appellants that the letter Exhibit A cannot ground a contempt of the court and that in any case such a contempt is not a contempt in facie curiae. We are of course unable to accept these arguments. The letter Exhibit A stinks with contempt and the authors of Exhibit A, whoever they may be, could only be aptly described as irresponsible cowards who are prepared to watch meanly other people suffer for the just consequences of their own wrong-doings. The appellants were represented by learned Counsel throughout the entire proceedings and it is significant that the letter was written and handed over to the learned trial Judge by the appellants themselves right over the head and in the presence of their own Counsel. It is remarkable that just before the court awarded sentences against the appellants, some Counsel in court rose up and pleaded for leniency on behalf of the appellants. But it is a matter for regret that their own Counsel said or did nothing whatsoever throughout the contempt proceedings when he should or rather which he should have regarded as the most important, most challenging episode in the entire proceedings so far.

Learned Counsel for the appellants then argued his ground of appeal which challenges the propriety of the procedure adopted by the learned trial Judge and culminating in the "conviction" of the appellants. He submitted that the learned trial Judge acted at the same time "as prosecutor, witness and judge" and that the appellants did not get a fair hearing as stipulated by the Constitution of the Federation of Nigeria, section 22(5) and 22(9), In his own reply, the learned Director of Public Prosecutions, Mid-West, was unable to resist the submission that the learned trial Judge had indeed recorded a conviction and had stated that he had found the appellants guilty of contempt of court; but, the learned Director of Public Prosecutions could not point out the charge of which the appellants were in fact convicted. This of course runs foul of the provisions of the Constitution of Nigeria, section 22 of which reads, inter alia, as follows:-

"22     (5)     Every person who is charged with a criminal offence shall be entitled-

(a)     to be informed promptly, in language that he understands and in detail, of the nature of the offence;

(b)     to be given adequate time and facilities for the preparation of his defence.

(9)     No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(10) No person shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law:

Provided that nothing in this subsection shall prevent a court of record from punishing any person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty therefore is not so prescribed.

We have referred in particular to these sections or subsections of section 22 of the Constitution because they emphasize clearly that before a person is convicted of a criminal offence he should first of all be charged and the charge must be for an offence which is prescribed in a written law. Thereafter the person should be informed of the nature of the charge in language which he could understand and to be given adequate time and facilities for the preparation of his defence. We also emphasize the clear and important provisions of subsection (1) which stipulates that he should not be convicted of a criminal offence unless that offence is defined in a written law. It is clear that the contempt of court which a court of record is entitled to deal with brevi manu is not anywhere prescribed in a written law but it is part of the functions which are associated with the inherent jurisdiction of a court of record. Now, subsection (9) is very important. That stipulates that a person who is tried for a criminal offence shall not be compelled to give evidence at the trial and it is difficult to know what else a person is doing inside the witness box duly sworn therein if it is not that such a person was giving evidence at a trial. Besides all this, the provisions of the proviso to subsection (10) are important. Evidently, this proviso retains for the court the power "to punish" summarily for contempt of court. This subsection, i.e. subsection (10), and the proviso, make it clear that where a trial and/or a conviction is called for the conditions of the other subsections must be complied with although if all there is to do is the punishment for a contempt of court, the proviso applies and the peremptory provisions of the other subsections are disregarded. In the case of Abachom v. The State [1970] 1 All N.L.R. 69 at page 78, this Court observed with reference to similar proceedings as follows:-

"The matter does not rest there however as we must draw attention of the fact that the learned trial Judge seems to have been completely confused over the mode of procedure that he adopted. At page 6 of the record to which we have referred, it is stated 'the court has been put into a position it has to defend itself. I shall put the deponent into the witness box' and this on any showing was a quite wrong procedure. If the learned trial Judge wished to deal with a case of contempt in the face of the court summarily he should have put the accused not in the witness box but the dock and asked him to show cause why he should not be convicted. He should not have compulsorily put him into the witness box as apart from anything else that offended against section 22(9) of the Constitution of the Federation which reads-

No person who is tried for a criminal offence shall be compelled to give evidence at the trial."

In the case in hand, the learned trial Judge did compel the appellants to choose either the witness box or the dock and it is significant that they all chose the witness box. This of course is an outrage on our criminal procedure for the learned trial Judge had in the circumstances, with a witness in the witness box and without any other prosecutor, assumed that role in a most irregular inquisition, which is most undignified of a judge of a superior court. At the end of his ruling the learned trial Judge stated that he found the appellants guilty but there was no charge and it is manifest that the judge did not deal as he should have dealt with the appellants' brevi manu by asking them into the dock to show cause why they should not be punished for contempt of court and punishing them accordingly. In Boyo v. Attorney-General of Mid-West State [1971] 1 All N.L.R. 342, this Court observed at page 353 of the Report thus:-

"These observations to which we have referred, to our mind, apply both in cases of contempt in the face of the court and also in cases not in the face of the court, although in the first case, generally, the contempt cannot be dealt with efficiently except immediately and by the very judicial officer in whose presence the offence was committed. In cases of contempt not in the face of the court, there may be cases where the offence should be 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.

Where the judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in court it cannot be said that the contempt is in the face of the court. In such cases, a judge should not try a contempt in which he is involved. In the present case, the learned judge had stated, and it is on record, that he had witnesses he was going to call to testify to the contempt and it is clear from the record before us that the learned judge was deeply involved."

Incidentally, that case concerned the same judge and one would have thought that he had learned his lesson: indeed he had not. His refusal to learn must to an incalculable extent be considered responsible for the escape from just punishment of irresponsible persons who shamelessly attacked the integrity of a High Court of this country, those who had violently struck an axe at the dignity of our courts and said or wrote words which in the language of the learned trial Judge himself exposed "the authority of the court to ridicule and contempt." But the law must be applied and the consequences which it prescribes must follow.

There was of course no answer to the criticism of the procedure adopted in this case by the learned trial Judge and this Court cannot too strongly deprecate the action of a High Court judge degrading himself to the position of a prosecutor in his own court and at the end of it all purporting to find persons guilty of offences which are not described and nowhere formulated and dealt with as provided by law. That reminds one of the wise words employed by the editors of Oswald on Contempt, etc. at page 17-