GODWIN MOGBEYI BOYO (APPELLANT)
THE ATTORNEY GENERAL OF MID-WEST STATE (RESPONDENT)
(1971) All N.L.R. 343
Division: Federal Supreme Court
Date of Judgment: 22nd December, 1971
Case Number: SUIT NO. S.C. 53/1970
Before: Ademola, C.J.N., Coker, Madarikan, Udoma, Sowemimo JJ.S.C.
Appeal from the High Court (Mid-West).
(1) Whether the contempt is in the face of the court or not in the face of the court, it is important that it should be borne in mind by judges that the court should use its summary powers to punish for contempt sparingly. Judges should not display undue degree of sensitiveness about this matter of contempt and they must act with restraint on these occasions.
(2) The above observations apply both in cases of contempt in the face of the court and also in cases not in face of the court, although in the first case, generally, the contempt cannot be dealt with effectively 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 many 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.
(3) Where a 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 this case, the trial Judge had stated, and it was on record, that he had witnesses he was going to call to testify to the contempt and it was clear from the record that the trial Judge was deeply involved.
(4) In this case, it is impossible to see how the trial Judge would have avoided placing himself in the most invidious position of being an accuser, a witness, and also a judge if he was permitted to hear the matter of the contempt. Consequently the appeal must succeed.
Even if the Supreme Court were to hold that it was a matter within the competence of the trial Judge to hear it would have been difficult to allow him to proceed to judge the contempt charge since the result of such a trial was a foregone conclusion judging from his own utterances and conduct of the case from the record.
Appeal allowed: Order of trial Judge that his court was proper court to try the case for contempt set aside.
Cases referred to:
Mcleod v. St. Aubyn, (1899) A. C. 549.
Perera v. Rex, (1951) A.C. 482.
Awobokun v. Adeyemi, (1968) N.M.L.R. 289.
R. v. Gray, (1900) 2 Q.B. 36.
Shandasami v. King Emperor, (1945) A.C. 264.
Mckeown v. The Queen, (1971) S.C.R. 257.
Offut v. United States, (1954) 348 U.S. II.
Cooke v. United States, (1925) 267 U.S. 517.
APPEAL from the High Court (Mid-West).
SUIT NO. S.C. 53/1970.
Chief Williams, (with him, Odje and Boyo (Mrs) for the Appellant.
Gbemudu, (Acting D.P.P. Mid-West) for the Respondent.
Ademola, C.J.N. (delivering the judgment of the court):-This appeal arose out of a case of contempt of court taken summarily suo moto by Atake J. of the High Court of the Mid-Western State. The contempt of Mr Boyo is a legal practitioner residing in Benin City and was concerned in a case before the learned judge. It would appear that a considerable amount of money was involved in the case and on the 17th March, 1969 in Appeal No. S.C. 21/69 the Supreme Court directed that a sum of £27,416-13s-4d be paid out to Mr Boyo's clients (the Ugborodo people) and that the balance of £13,708-6s-8d do remain in the High Court, Warri pending the determination of another appeal in the Supreme Court.
This order of the Supreme Court was served on the High Court Registrar Warri, who paid out the sum of £27,416-13s-4d as directed. On 22nd October, 1969, in another suit pending before Atake J. he ordered that the sum of £13,708-6s-8d be paid out to the adversary of Ugborodo people, Mr Boyo's clients. According to Mr Boyo, he sought an interview with Atake J. and pointed out to him that his order would appear to be in breach of the Supreme Court Order; he stated that nevertheless Atake J. said that his order must be carried out despite the order made by the Supreme Court. Whereupon Mr Boyo on 3rd January, 1970 wrote a letter to the learned judge, a copy of which was sent to the Accountant-General (who in the last resort would pay out the money); he also sent copies to the following:-
The Chief Justice, Mid-Western State,
the Attorney-General of the State,
and the Chief Registrar, High Court.
The letter reads:-
11, Sapele Road,
P.O. Box 277,
Benin City, Nigeria,
3rd January, 1970
"BOYO & BOYO
BARRISTERS & SOLICITORS
G. M. BOYO, ll.b. (Lond.) Barrister of the Middle Temple
C. A. BOYO
Barrister of the Inner Temple
Our Ref.: CV. 135
The Hon. the Judge, High Court III. Thro' The Registrar,
High Court of Justice, Warri.
SUIT NO. W/46/69
ITSEKIRI COMMUNAL LAND TRUSTEES
DICK OLUEH & ORS.
I recall my interview with Your Lordship in respect of the above suit in Your Lordship's Chambers on 30th December, 1969.
Your Lordship will recall that I met Your Lordship in the High Court Registry that morning querying Your Lordship's Registrar as to why he had not sent out a payment voucher for the withdrawal of a sum of £13,708-6s-8d which Your Lordship had ordered to be paid out to the Itsekiri Communal Land Trustees as per Your Lordship's judgment and order dated 22nd December, 1969. It was at that stage that I intervened in the matter and informed Your Lordship that I had in fact come to see Your Lordship about certain aspects of the said suit and judgment/order.
Your Lordship however persisted upon instructing the Registrar Mr T. K. N. Peregba to proceed without delay to ensure that the voucher left for the Government Treasury and that the Itsekiri Communal Land Trustees were paid; after which Your Lordship invited me to Your Lordship's Chambers on my application to see Your Lordship in connection with the said suit authorising £13,708-6s-8d to be paid out to the Itsekiri Communal Lands Trustees.
In Your Lordship's Chambers, I informed Your Lordship that when I first heard of the judgment and order dated 22nd December, 1969 on 27th December, 1969, I immediately suggested to Your Lordship's Registrar Mr T. K. N. Peregba that he should call Your Lordship's attention to the order dated 17th March, 1969 made by the Supreme Court in Suit No. W. 327/68 by which the sum of £13,708-6s-8d which Your Lordship had ordered to be paid to the Itsekiri Communal Land Trustees was kept in court.
Your Lordship then regretted that unfortunately, Your Lordship's Registrar did not call Your Lordship's attention to the said order of the Supreme Court and that the said order was also not in the case file in Suit No. W/46/69. I agreed with Your Lordship that it was unfortunate those facts were not brought to Your Lordship's notice.
I then reminded Your Lordship that not much harm had been done as the payment voucher which Your Lordship was ordering Your Lordship's Registrar to forward to the Treasury for the withdrawal of the £13,708-6s-8d when we met in the Registry that morning had not in fact left the Registry. Your Lordship however refused to intervene in the matter and suggested that if any thing had been done wrongly it was so done because of Counsel in the case.
I reminded Your Lordship further that the sum involved was compensation money retained in Your Lordship's court by an order of the Supreme Court pending the determination of appeal to that Court which had not been heard but again Your Lordship refused to intervene in the matter to stop the money from being paid out because Your Lordship thought the order dated 22nd December, 1969 contained enough safeguards to ensure that the money went to the people of Ugborodo and the Itsekiri Communal Land Trustees.
I did my best to impress upon Your Lordship that it appears that a grave miscarriage of justice has been committed in the proceedings subsequent to the order made by Your Lordship in Suit W/46/69 on 24th October, 1969 substituting Mr Egbe's clients (viz: Babine Ereku, Olleh Akpienyi, Aniretuoronwa Okotie-Uro and Tsuko Ejuetami) for Chief Dick Olueh and Chief Ojogbo Eribokuo as representatives of the Ugborodo and Ogidigben people but Your Lordship did not appear to be impressed by my contentions.
After arriving in my chambers and reassessing the responsibility in this matter to Your Lordship, the Supreme Court and the Ugborodo and Ogidigben people (who, I represent in this matter), I have decided to make this further appeal to Your Lordship to reconsider the propriety of the order made by Your Lordship in Suit W/46/69 on 22nd December, 1969 authorising the sum of £13,708-6s-8d to be paid to the Itsekiri Communal Land Trustees when their appeal to the Supreme Court in Suit W/27/68 involving the determination of their rights to receipt of any part of this compensation money (among other issues) has not been heard. Your Lordship should also consider the propriety of paying out this money to the Itsekiri Communal Land Trustees before their appeal and the appeal of my clients in Suit W/27/68 are heard and without an order from the Supreme Court.
I am to add further that the plaintiffs in W/46/69 (i.e. the Itsekiri Communal Land Trustees) did not seek an order for the payment out to them of £13,708-6s-8d or any other sum of money but a determination of the following question viz:-
"The person or persons entitled to the compensation money and the manner and proportion in which they should share the said money paid in respect of the lands situate at Ogidigben at the mouth of River Escravos in Warri Division acquired by the Federal Government and covered by certificate of title dated 20th July, 1966 and registered as No. 8 at page 8 in Volume 30 in the Benin City Land Registry."
It is also pertinent in this regard to mention that both the originating summons dated 15th May, 1969 (filed after the order of the Supreme Court in W/27/68) filed by the plaintiffs in Suit W/46/69 and the statement of claim filed by the plaintiffs in the said suit gave some notice of the nature of the proceedings and the order of the Supreme Court dated 17th April, 1969 in Suit W/27/68.
(Sgd.) Mogbeyi Boyo:
SOLICITOR TO UGBORODO AND OGIDIGBEN PEOPLE."
After the receipt of this letter, and indeed on 22nd January, 1970, the learned judge (Atake J.) directed the Registrar to pay out the sum of £13,708-6s-8d to the adversary of Ugborodo people, that is, the Itsekiri Communal Land Trustees. On the same day, a letter was written to the Registrar, on the instructions of the learned judge, to Mr Boyo, demanding an apology within 14 days for the letter written to the judge, otherwise he would be dealt with for contempt of court. On a refusal by the plaintiff to tender the apology required he was on or about 6th February, 1970 arrested at Benin City by a warrant issued under the hand of the learned judge at Warri. The execution of this warrant and a second warrant of arrest at Benin City and the subsequent detention of Mr Boyo without bail are all the subject matter of another appeal before us on which we are also delivering judgment. It is therefore unnecessary to deal with that aspect of the case here. On Mr Boyo eventually appearing before the court, the learned judge (Atake J.) stated that the case of contempt has already been fully explained but he would make available to Counsel and the contempt or a copy of the charge in the record book.
"CONTEMPT OF COURT
Attempted to countermand or render nugatory the order of this Court dated the 22nd December, 1969 to the effect that the sum of £13,708-6s-8d be paid out to the Itsekiri Communal Land Trustees and the Ugborodo and Ogidigben community by writing a letter CV. 135 of the 3rd January, 1970 published to the Accountant-General Benin City and by other acts with the intention of stopping the said Accountant-General from paying the said money to the Registrar of this Court well knowing of the said order and that pursuant to the said order of this Court a voucher had been prepared for presentation to the said Accountant-General for payment to the Registrar of the court of the said amount of £13,708-6s-8d to enable the said Registrar to pay the said money to the Itsekiri Communal Land Trustees and Ugborodo community as ordered by this Court.
(Sgd.) F. O. M. Atake: JUDGE."
On the charge as presented to the court, Counsel for Mr Boyo took an objection to the case being heard by the learned judge (Atake J.). He submitted that the court and the judge are so much concerned in the matter and the learned judge might as yet be a witness in the case. In the argument which ensued between Counsel for Mr Boyo and the court (Atake J.) it was held by the judge that the proper court to try Mr Boyo was his court. On his insistence to try Mr Boyo an adjournment was asked for to prepare a defence. This was granted. Bail was also allowed. Meanwhile an appeal against the order that the court is the proper court to hear the matter was filed in this Court.
At the hearing before us, the learned Acting D.P.P. Mid-Western State first took an objection to the court hearing the appeal on the ground that it has no jurisdiction since it is a criminal matter and that no one has been convicted or acquitted. This objection was later withdrawn and hearing of the appeal continued.
Chief F. R. A. Williams arguing that the appeal stated that the first question was to decide whether the alleged contempt was one in the face of the court or one not in the face of the court; that it is only if it is the former that the judge could deal summarily with the matter, and the submitted that the alleged contempt was one not in the face of the court and the judge could not properly deal with the matter.
In the appeal before us however, the learned D.P.P. conceded that the contempt complained of was one not in the face of the court. We therefore do not have to decide the point. It is enough that both sides are agreed that the contempt complained of was not in the face of the court.
What we are called upon to decide in this appeal is: as the contempt in this matter was not in the face of the court, was the learned judge correct in holding that his was the proper court to hear the matter?
Before deciding the point, however, there is one aspect of this case to which we must reluctantly refer since it forms part of the record before us. It arose in this way. When the notice of motion for this appeal and for an order to stay further proceedings in the High Court was filed in this matter, a further affidavit in support of the motion was filed by six of the thirty Counsel who appeared for respondent in the High Court. The object of the affidavit was to introduce an exhibit consisting of some 12 pages which they claimed contained the correct proceedings before Atake J. during the trial for contempt. In other words, the record of proceedings by that court was attacked as not containing the true proceedings in court. The learned judge by a counter-affidavit admitted the correctness of many parts of this document and corrected some; he stated however that he did not regard these as proceedings in the case since, for the most part of it, he was explaining to the lawyers in court why he had brought Mr Boyo up for contempt. The main object the judge said, he "felt called upon" to explain to members of the Bar present what had led up to the arrest of Mr Boyo for contempt. Whether or not this dialogue forms part of the proceedings, we must confess that we feel somewhat dismayed that a court should have thought it proper to carry on a dialogue of such a nature. If these are part of the proceedings, as certain parts appear to be, we must express our surprise that the judge had not forwarded a complete record of proceedings to this Court for purposes of appeal but had left out what he thought was unfavourable to him. If on the other hand it was a mere explanation to members of the Bar, we must deprecate the conduct of the judge in making the court a forum for his theatrical performance with Mr Boyo in the dock.
It appeared that during this "lecture" however, members of the Bar appearing for Mr Boyo interrupted the proceedings and Mr Aghahowa who appeared to be leading other members of the Bar took an objection to Atake J. hearing the case. He cited a case in favour of his objection to Atake J. in reply was reported to have said:-
"I was expecting this objection. The T. V. girl's case is different from this case. I know I was bringing someone of Mr Boyo's eminence to court. Mr Boyo said in his letter to the Attorney-General that I fumbled in my law. I have done my home-work to make sure I do not fumble in my law at the trial. I have my authority which states that I am the proper court to hear this case."
The learned judge was recorded to have sent for a copy of All England Law Reports from his Chambers and cited a case. He then wrote out a ruling that his court was the proper court to hear the case and he would hear it. As recorded, he said:-
"1. The position then is this, gentlemen; if you convince me that what Boyo has done does not amount to contempt of this Court, he is entitled to an acquittal.
2. But if I find, as I have done, that the letter the Accountant-General is contempt of this Court I shall send him to prison.
3. Because he said I fumbled in my law I have prepared my case. I have 16 authorities in support of my case and in this trial I shall trade law for law.
4. I completed my legal studies in 18 months and many people considered me a brilliant student...
5. I used to think of Boyo as a brilliant lawyer...
The learned judge went on and on, and was interrupted by Mr Aghahowa who applied for adjournment to prepare a defence. He also asked for bail for Mr Boyo, in his own recognisance. Whereupon Atake J. said:-
"I am afraid I cannot grant him bail in his own recognisance. He is a regular contemptnor. He deserves no favour in this Court. All that he is entitled to say is something in his defence...
And you say he is the President of the Nigeria Bar Association. But I accept him to behave in such a way as to show complete awareness of his own position...
The learned judge then went on to talk about his childhood days with Mr Boyo; how they grew up together and the loyalty he expected from him. As he went on again about the allegation of fumbling in his law, Mr Boyo from the dock got up to address him. Atake J. snapped, as recorded:-
"If you say anything from there, I will send you straight to prison. Sit down! Stupid."
As Mr Boyo remained standing, the judge said:-
"Tell that man to sit down or I will send him to prison."
Eventually, Mr Boyo was able to put in a few words:-
"My Lord; you misunderstood me. I did not say you fumbled in your law."
After more and more tirade by the learned judge, he granted bail in the sum of £500 and one surety in £500.
The above are a few excerpts from the notes of proceedings taken down by Counsel for the defence which they claimed were accurate and true record of the proceedings in court. It is noteworthy that of all we have herein mentioned above, Atake J. in his affidavit only denied the last portion that he referred to Mr Boyo as being stupid. Be that as it may, such were the tenor of the proceedings before the court.
Now the substance of the argument put before us by Mr Gbemude, Acting G.P.P. Mid-Western State, is that the contempt in this case can be punished summarily by the court although the contempt may not be in the face of the court. In effect he agreed with the learned judge that his court was the proper court to deal with the matter. We were referred to the following cases:-
McLeed v. St. Aubyn (1899) A.C. 549 at p. 558.
Perera v. Rex (1951) A.C. 482.
Awobokum v. Adeyemi (1968) N.M.L.R. 289 at p. 295.
As we are not trying Mr Boyo for contempt or hearing an appeal against his conviction for contempt we do not find these cases material to the present issue before us. We are clearly not called upon to decide whether or not there was contempt: it was still a matter at large before the learned judge. The concern at present is about the exercise of the power to punish for contempt when in the face of the court, and also as in the present case, not in the face of the court.
Whether the contempt is in the face of the court or not in the face of the court, it is important that it should be borne in mind by judges that the court should use its summary powers to punish for contempt sparingly. It is important to emphasize the fact that judges should not display undue degree of sensitiveness about this matter of contempt and that they all must act with restraint on these occasions. We recall the observation of Lord Russell of Kilowen in R. v. Gray (1900) 2 Q. B. 36 at p.41 that "jurisdiction to deal with contempt summarily should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt."
In the case Shandasami v. King Emperor (1945) A.C. 264 at page 268, Lord Goddard, C.J. in delivering the judgment of the court said:-
"Dealing first with the appellant's reference to the conduct of the Bar, their Lordships share the surprise expressed by the Chief Justice when granting the certificate for appeal as to what he described as the somewhat undue degree of sensitiveness displayed in taking so serious a view of what had been said. Their Lordships would, indeed, go further, and say that it would have been more consonant with the dignity of the Bar to have ignored a foolish remark which has been made over and over gain, not only by the ignorant, but by people who ought to know better, and, no doubt, will continue to be made so long as there is a profession of advocacy. To treat such words as requiring exercise by the court of its summary powers of punishment is not only to make a mountain out of a molehill but to give a wholly undeserved advertisement to what had far better have been treated as unworthy of either answer or even notice."
The case was an appeal against conviction for contempt of court where the appellant before the court had said something contemptuous of Counsel against him in a case before the judge.
The Lord Chief Justice at p. 270 of the report continued:-
"Their Lordships would once again emphasize what has often been said before, that this summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a court must necessarily possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended."
And in a case of the last century, Mcleod v. St. Aubyn (1899) A.C. 549 at p. 561, Lord Morris said:-
"The power summarily to commit for contempt of court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice."
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.
In the recent Canadian case of McKeown v. The Queen (1971) S.C.R. 357-492 at page 477 Laskin J. said:-
"Where the judge has to be and is a witness to facts which are in issue, he cannot, in my opinion, rely on a rule of discretion to justify him in proceeding to judge the issue. Trial of contempt charge by summary process does not necessarily mean trial before the very judge involved in the proceedings out of which the contempt arises. Indeed, it is the preferable course, where conditions do not make it impracticable, or where there will be no adverse effect upon the pending proceedings by the delay, to have another judge conduct the contempt charge: See Offutt v. United States (1954) 348 U.S. 11."
He continued (at page 478):-
"The present case was not one in which the facts surrounding the alleged contempt were so notorious as to be virtually incontestable, nor was it one where the events upon which the contempt was based took place in the full view and appreciation of the court. It would have been the prudent course in this case either to have the Attorney-General assume the carriage of the proceedings before another judge (see Regina v. Gray (1900) 2 Q.B. 36, and Cooke v. United States (1925) 267 U.S. 517 at p. 539) or to invoke the jurisdiction of the Supreme Court of Ontario...."
In the matter before us, we fail to see how Atake J. would have avoided placing himself in the most invidious position of being an accuser, a witness, and also a judge if he was permitted to hear the matter of the contempt.
If even we were to hold that it is a matter within the competence of Atake J. to hear, we feel compelled to say that we would have found it difficult to allow him to proceed to judge the contempt charge since the result of such a trial was a foregone conclusion judging from his own utterances and conduct of the case so far, from the record before us.
We have abstained from referring in this judgment to the unhappy personal relationship between Atake J. and Mr Boyo which we regret to say that the learned judge has not only brought out vividly in the proceedings in court, but has allowed this to interfere with his judgment.
In the event this appeal succeeds. The order made by Atake J. in his ruling dated 13th February, 1970 that his court was the proper court to try the case of contempt of court in this matter is hereby set aside.
Appeal allowed: Order of trial Judge that his court was proper court to try the case for contempt set aside.