The spectacle which unfurled at an Abuja Magistrate’s Court on Tuesday leading to the remand of a legal practitioner, Eburu Ekwe Barth, at Suleja Correctional Centre in Nasarawa State has thrown up a lot of questions.
Though the drama is finally wrapping up with His Worship Hon. Ibrahim Mohammed granting an application to have the Contempt Order set aside, the incidence has raised a lot of posers particularly on conduct of the lawyer and the legality of the Magistrate’s action.
Was the Magistrate right to have cited the lawyer for contempt? Was the lawyer’s action contemptuous of the court? Did His Worship the Magistrate display the candour befitting of an arbiter according to law? Was sending Eburu Barth off to Suleja Prison and in handcuffs the right action to have been taken in the circumstance?
What Lord Denning did
Femi Falana, Senior Adviocate of Nigeria gave an interesting insight.
“In a case of contempt in facie curiae the judex is the complaint, the prosecutor and the judge. No doubt, it is trite that the disruption of the proceedings of a court is classified as contempt in facie curiae. But the Magistrate could have sent the lawyer out of the court room. That was what Lord Denning and his learned brethren did in the story published by the New York Times of June 16, 1964. According to the newspaper:
‘Tempers may have been slightly ruffled, but decorum prevailed nonetheless in the Court of Appeal today as a protesting woman litigant flung law books at the judges. Vera Beth Stone was conducting her own case. She was refused leave to appeal a judgment on the levying of costs in an unsuccessful action she had brought against the Association of Official Shorthand Writers in which she had charged falsification of transcripts. So she picked up a book in front of her and said: “This is not a personal matter, but I have to bring this before the court.”
‘The book flew past the ear of Lord Denning, Master of the Rolls, and struck the panelling behind him. Neither he nor either of the two other judges on the dais, Lord Justices Harman and Diplock, showed agitation. “It does not have to be tomatoes,” Miss Stone continued, and let fly a second book, a bit wider of the mark.
“Will you please leave the court!” Lord Denning said politely but firmly.
“I shall only come back and throw more books,” Miss Stone replied.
“Will you leave?” Lord Denning persisted.
Miss Stone surveyed her dwindling library.
“I am running out of ammunition,” she said.
‘As she was led from the courtroom, she said to Lord Denning: “May I congratulate your lordship upon your coolness under fire.’ ”
Can every court deal with contempt in facie curiae and punish for the offence summarily?
Beginning with the attitude of the lawyer on that day, Emmanuel Madujibe Chukwu Esq in his contribution said: “In contributing my little quota to this heavy issue at hand, I must first deal unkindly with the rude and discourteous character of the defense counsel before the Honorable Court. Now, let me point out that it is only a Superior Court of record that has inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. See INEC & Anor V Oguebego & Ors (2017) JELR 37955 ( SC).
“It should be noted that the Court of Appeal had the opportunity to entertain this confusing situation in Adeyemi Candid-Johnson V. Mrs Esther Edigi (2018) LPELR-45148(CA) where the court held that the 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.’
“Achike JCA (as he then was) corroborated his reasoning with my fears and held; ‘It is clearly improper and will expose the Administration of Justice to ridicule if a Magistrate or presiding officer of an inferior Court were invested with such extraordinary powers to provoke extrajudicial verbal exchange with counsel and yet invoke against him the lethal and drastic power to punish for contempt.’
“Here, it will be said that the law of contempt only exists to uphold and ensure effective Administration of Justice and not for personal glory as we have seen in the case cited above. The power of the Court to punish for contempt must always be exercised to secure and protect the authority of the Court. In fact, the powers should be sparingly exercised and only in serious cases.
“The point I am struggling to make has been settled by the Supreme Court in the case of INEC & Anor V. Oguebego & Ors (2017) JELR 37955 ( SC), that such arrant words or actions of the contemnor must be capable of interfering with the administration of justice by the court. Let me also quickly agree with the Justices of the Apex Court in the above cases that it is only a Superior Court of record that has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily.
“Could it be safely said that the court did not abuse her powers to order that defense counsel be tried summarily, convicted and handcuffed to a gory place of safety to secure the ego and personal aggrandizement of the presiding officer?”
What happened that day in Court?
Sekpe Benjamin Benabraham who witnessed it all wrote about the experience.
“I was in court and therefore had first-hand knowledge of what transpired. For the records am not holding brief for the Magistrate, but as a minister in the temple of Justice, you perhaps need to have a balanced view of the situation. I pleaded on his behalf too in open court and even after the court rose.
“It is true that Counsel interjected when the ruling was going on but that was not the main issue.
“By the way, the application for which the Magistrate was delivering the ruling on was in respect of an Application made by the Plaintiff Counsel that the matter be referred to the multi-door for arbitration, the Defendant Counsel came late into the Court room while the Plaintiff’s Counsel was moving the Application (the matter was coming up for the first time) so the plaintiff counsel May not have known if the defendant had a legal representation, the Counsel started confronting the Plaintiff Counsel on the issue of appearance but the Court asked them to be calm and later allowed the Defendant’s Counsel to announce his appearance.
“Upon announcing his appearance, the Court now asked him to respond to the application that the matter be sent for arbitration he responded that he was not in court so he doesn’t know what has happened, the Magistrate read the application from his record and requested him to respond, he started by saying that the Plaintiff’s Counsel deceived his client as he had claimed he is going to withdraw the matter. Another round of altercation arose between the Plaintiff’s Counsel and the Defendant counsel. The court at that point proceeded to deliver its ruling.
“While delivering the ruling, the court was now giving a summary of submission of both counsel, he mentioned the issue of withdrawal of the suit that the Defendant counsel made mentioned of, that was when the Defendant counsel rose up and started interjecting the Magistrate that he never said the matter should be withdrawn. I tried to calm him down at this point but he ignored me and proceeded to say: ‘It appears there’s a conspiracy against my client.’
“The Court asked him to sit but didn’t and the court told him that he would be cited for contempt and he responded that the court should go ahead. The court asked him to enter the dock and purge himself of the contempt. I stood up to appeal to the court but at that point the Magistrate was already furious. He asked me to sit down otherwise he will ask me to enter the dock too, I sat down.
“While in the dock, the Magistrate asked him, ‘you said there’s conspiracy between me and the Plaintiff’s Counsel against your client, can you expatiate on that?’ But at point he now told the court that he was not referring to the Magistrate but the Plaintiff’s Counsel and that the Magistrate should “Calm Down.”
“The Magistrate gave a ruling he is not satisfied that the counsel have purged himself of the contempt and sentence him to 2 Months imprisonment. That was actually what happened. I am not writing this because I want to justify the conduct of any one, I know we all have different ways of responding to issues but let’s be properly guided.
“Thanks.”
Barr. Dave Idoko of Lex Loci Chambers gave a similar report. He too was in court. Here are excerpts of his written account.
“Re: Calm Down Your Worship- Eye Witness Account by Dave Idoko
“I and my senior colleague, Barr. Mike attended at the Magistrate Court in Wuse Zone 6 on 23rd March, 2021 to observe proceedings before filing a process for recovery of premises. The matter involving Barr. Barth came up for the first time before the court today. After the Plaintiff’s lawyer announced appearance, he sought to move an application for the case to be referred to ADR at the Multi-door courthouse based on the arbitration clause in the tenancy agreement.
“It seems that Barr. Barth came into the court after the case had been called so he sat behind. After the plaintiff’s lawyer made the application, Barr. Barth rose up and verbally accused the Plaintiff’s lawyer for not allowing him to announce his appearance.
“After a few minutes, the Magistrate intervened and asked Barr. Barth to simply address the court and announce his appearance. Instead, Barr. Barth also accused the Magistrate of colluding with the Plaintiff’s counsel. After which the Magistrate then asked Barr. Barth to step out and cool off for about two minutes.
“After about 1 minute, Barr. Barth was called back to respond to the application for settlement earlier made by his colleague.
“Barr. Barth then responded by saying that the matter was meant to be withdrawn by the Plaintiff following a previous conversation with the Plaintiff’s lawyer, a claim the Plaintiff’s counsel refuted. This led to another round of altercation between the two lawyers. After which the Court asked the lawyers to sit down for the court to make a ruling.
“While reading the court’s ruling, Barr. Barth jumped up and interjected, accusing the court of conspiracy against his client. Barth repeated the allegation that the Court conspired against his client. The court cautioned him and other lawyers at the bar begged him to withdraw his claim but he was insistent.
“After the Court cited him for contempt, the magistrate gave him many opportunities to purge himself but he refused, instead Barr. Barth angrily told the court to ‘calm down’ after which the court gave its ruling.
“Some of us in the court, including Police Prosecutors approached the Magistrate to plead with him and he asked us to bring a formal application for variation of the order made that he will vary the order.
“Unfortunately, after about 10 minutes the whole of social media was buzzing with a viral allegation by the unity bar secretary, Adetosoye which carried a different account from what happened because barr. Adetosoye was not in court when this happened. The magistrate did not even rule that barr. barth should be handcuffed.
“When Barr. Mike reached out to the Court, it was like the viral news had already reached the registry, after which Barr. Barth was taken to Suleja by the correctional services.
“As lawyers, we should always try to verify things before posting them on social media.”
Other views
Lecturer and legal practitioner, Sylvester Udemezue in an article titled: In Re “Magistrate Orders Lawyer To Be Handcuffed, Jailed For Contempt Of Court”: How Both The Magistrate And The Lawyer Erred shared his thoughts.
“MY OPINION:
“Because of public belief and confidence in the disposition and ability of the courts to dispense justice with utmost impartiality, notwithstanding whose ox is gored and ensure that in all cases, justice is not only done, but is seen clearly to be done. Judicial and other officers involved in the administration of justice must therefore engage and be seen to engage only in conducts and pronouncements that inspire, promote and sustain, rather retard, public confidence and respect.
“On the other hand, litigants and their lawyers alike involved in proceedings before the courts must imbibe the appropriate manner of dealing with the courts and the judiciary, bearing in mind what negative impact their contemptuous and disdainful stance towards judicial officers may have on administration of justice and rule of law, without which democracy cannot survive.
In a November 29, 2010 article under the title, “Delimiting The Powers Of Presiding Judicial Officers To Punish For Contempt Of Court”, (see: <https://allafrica.com/stories/201011300335.html> accessed March 23, 2021), I had described contempt of court thus:
“Contempt of court is essentially seen as a form of disturbance that may impede the functionality of the court. In Atake v. AG, Federation (1982) 11 S.C 175, Idigbe JSC described contempt as “any conduct which tend to bring into disrespect, scorn or disrepute the authority and administration of the law or which tends to interfere with and or prejudice litigants and/or their witnesses in the course of litigation.”.
“Also, contempt is defined in Agbachom v. The State (1970) 1 All NLR 69 at page 77 (per Lewis J.S.C. citing with approval what Lord Russel laid down) as “any act done or writing published calculated to bring a court or Judge of the court into contempt or to lower his authority. This is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with due course of justice or the lawful process of the Courts is a contempt of court. The former class belong to the category which Lord Hardwick L.C. characterised as range scandalising a court or a Judge: In Re Read & Huggonson (1742) 2 ARK 291, 469.”
“Contempt therefore means any wilful disobedience to, or disregard of, a court order or any misconduct in the presence of a court; any action that interferes with a judge’s ability to administer justice or that insults the dignity of the court. Granted that it is not necessarily every act of discourtesy to the court by counsel or litigant that amounts to contempt (see Izuora v. Queen 13 WACA Page 313; Okoduwa v. State (1988) 3 SCNJ 110), yet it has been held that to call a judge a liar or to allege he is partial is contemptuous — see Vidyasagara v. The Queen (1963) AC 589.”
“With due respect, on no account should a lawyer stand in court or elsewhere in the open and accuse a Magistrate or judge of colluding or of conspiring with counsel on the other side. Even if the only statement he made in the open court was that “the opposing counsel colluded, conspired or was colluding with the presiding Magistrate”, such could still be reasonably considered to be a gross breach of the RPC and a high-class act of unethical conduct and unprofessionalism.
“Rule 31 (1) RPC, 2007: “A lawyer shall always treat the Court with respect, dignity and honour”. RULE 31(2): “Where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities”. To this end, where a lawyer feels dissatisfied with the conduct of a presiding judicial officer in a case, the lawyer has only FIVE OPTIONS, and the list is exhaustive:
- Take no steps at all, although this is a form of dereliction of his professional responsibility because Rule 55(2) RPC requires that “It is the duty of every lawyer to report any breach of any of these rules that comes to his knowledge to the appropriate authorities for necessary disciplinary action”.
- Bring a formal application (Motion on Notice, Affidavit and Written Address) before the same court asking that the presiding officer should recuse himself from further participation in the proceedings — ie., withdraw from the case.
- Write a formal petition/complain to the Chief Judge or other relevant controlling authority asking that the case file be recalled and reassigned to another judicial officer.
- Make such Judicial misconduct a ground of appeal. Or
- Send a formal petition/complaint to the NJC (in the case of judicial Officers) or to other relavant disciplinary authority (in the case of non-judicial officers, such as a Magistrate).
“Regarding courtroom decorum, Rule 36 RPC, 2007 (note that RPC has not been amended) provides that “when in the courtroom, a lawyer shall – (b) conduct himself with decency and decorum, and observe the customs, conduct and code of behaviour of the court and custom of practice at the bar with respect to…manners and courtesy; … (d) …shall not engage in the exchange of banter, personality display, arguments or controversy with the opposing lawyer; (e) not engage in undignified or discourteous conduct which is degrading to a court or tribunal…”
“Further, a learned friend alleging in the open court that the opposing Counsel is colluding or conspiring with the presiding Magistrate or judge is a conduct unbecoming of a legal Practitioner, a breach of Rule 1, RPC 2007.
“The crux of my opinion is that before or after the lawyer has chosen or adopted any of the five options suggested above, he is still not entitled under any circumstances to resort to publicly insulting the Magistrate by accusing him of bias or of conspiring with the opposing counsel, or to desecrating the temple of justice.
“However, the matter does not end there; with due respect, I hold also the opinion that the presiding Magistrate also misbehaved in this instance. A second, and more serious, question that begs for answer is whether the same Magistrate (allegedly publicly insulted and complained against) is entitled to himself or herself try and determine the charge of contempt against the offending lawyer in view of the requirements of the twin pillars of natural justice, especially the rule of nemo judex in causa sua (one cannot be a judge in one`s own case).
“The query may further be raised whether a presiding magistrate who chooses to punish summarily under such a case, has not thereby turned himself into a judge in his own case, he being now the complainant, the prosecutor and arbiter all at the same time? Answer to this question may not be as straightforward as one may assume. Contempt is punishable with fine or imprisonment or both. There are both civil and criminal contempt; the distinction is however often unclear. Direct contempt or contempt in facie curiae (that is, contempt committed in the face of the court or took place within the court`s precincts or which relates to a case that is currently pending before that court) may be punished by the presiding judicial officer himself.
“There is no doubt therefore that in most cases where contempt is committed in the face of the court (in facie curiae), the presiding judge or magistrate can summarily try and punish the contemnor (the person alleged to have committed the act amounting to contempt).
“The difficult question, however, is whether the presiding judicial officer can try and punish where, as was the case in present case, the contempt is against the person of the presiding magistrate? The 1998 Court of Appeal decision in Chief Dibia v. Chief Ezigwe (1998)9 NWLR (Pt.564) 78 appears to have provided useful answers to these questions. According to the Court of Appeal in that case, “Where a man’s liberty is at stake, every requirement of the law must be strictly complied with. The Supreme Court has said over and over again that the court should use its summary powers to punish for contempt very sparingly.
“It has also emphasised the fact that Judges should not display undue degree of sensitiveness about this matter of contempt and that they should act with restraint on these occasions: See Boyo v. A. G. Mid-Western State (1971)1 All NLR 342 at 35….” Further, In Deduwa v. The State (1975) 1 All NLR (Pt. 1), the Supreme Court held that “The power to commit is not retained for the personal aggrandisement of a Judge or whoever mans the court. The powers are created, maintained and retained for the purposes of preserving the honour and dignity of the court and so the Judge holds the power on behalf of the court and by the tradition of his office, he should eschew any type of temperamental outburst as would let him lose his own control of the situation and his own appreciation of the correct method or procedure.”
“Finally, in Danladi Kachia v. Zaria L A 1969 N.N.L.R. 82, the Kaduna State High Court, sitting on appeal over a judgment of an Area Court, had this to say, that “The evidence proved by the prosecution showed that the appellant had alleged that a party to the proceedings before the Area Court had visited the house of the judge before the hearing of the case and on that account the judge would rig the case.
“This allegation, in our view, goes beyond contempt of court but constitutes an imputation that may harm the reputation of the judge. …. It is personal to the judge. In our view the judge was therefore personally interested in the case and was therefore debarred from hearing the case….The case of Olokoba Agbegende v. Ilorin Native Authority (unreported) Z/8CA/1967 very exhaustively considered the circumstances in which a judge may be personally interested in a case before him and which may give rise to real bias and a reasonable apprehension on the part of the accused of such bias. We cannot envisage a case that would give rise to a higher reasonable apprehension of bias on the part of the accused than the present one. He was accused of defaming the judge who tried him and convicted him virtually of that offence. We must allow the appeal on this ground. The appeal is allowed. Conviction and sentences are set aside”
“In summary, even in cases of contempt in facie curiae, which could be tried summarily, where the conduct that constitutes the alleged contempt is a personality or personal attack or allegation against the trial Magistrate himself, greater caution on the side of the Magistrate ought to be deployed in dealing with the matter, so as to not violate the core principles of a fair trial.
“The decision of the Court of Appeal in Abiegbe v. Registered Trustees of the African Church [1992] 5 NWLR (Pt. 241) 366 helps to brings out clearly the proper procedure to be adopted. Hear the Honourable court: “This leads to the procedure adopted by the learned Judge. The appellant was put into the dock. He (the judge) took over the conduct of the proceedings. He cross examined the appellant at length. It was he who tendered the exhibits. Counsel for the appellant was not asked to say anything. He heard no addresses. At the end of the proceedings, he committed the appellant to prison for contempt.
“There is no doubt that the learned Judge felt that this was a contempt in the face of the court and hence he adopted the summary procedure i.e. not to say that the court can nevertheless deal with a contempt summarily even though not in the face of the court – see Boyo v. A.G., M.W. (1971) 1 All NLR 342. Summary proceedings may be also desirable in regard to an article in the press calculated to bring a Judge or court into contempt or to lower his authority or to affect an un-concluded case. See Boyo v. The State (1970) 1 All NLR 318 at 320 and it must be strictly followed.”
“Let me conclude by humbly restating the Supreme Court`s position on the need to use the summary powers to punish for contempt sparingly. In Boyo v. A.G., Mid-West. (1971) I All NLR at 342, reference is made to R v. Gray (1900) 2 Q.B. 36 at page 41 where Lord Russell/Killowen stressed that “jurisdiction to deal with contempt summarily should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. Also, in Shamdasani v. King Emperor (1945) A.C. 264 at 270, Goddard LCJ stated that the summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which the court must necessarily possess; but its usefulness depends on the wisdom and restraint with which it is exercised.
“There may be cases of contempt being 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.” See Abiegbe v. Registered Trustees of the African Church (supra); Atake v. A.G. Federation (1982) 11 S.C. 153 at P. 205.”
