ATAKE V. A-G. OF FEDERATION & ANOR.
| Pages | 444-476 |
ATAKE V. A-G., FEDERATION & ANOR.
444
(from which he conveyed to the appellant) was not the same land as that conveyed
to Osayande Irabor from which the portion in dispute was conveyed to the Plain-
tiff/respondent.
I agree that this appeal lacks substance and ought to be dismissed. It is here-
5
by dismissed. The order for costs is as contained in the said judgment of Eso,
J.S.C.
UWAIS, J.S.C.:
Having had the opportunity of reading in draft the judgment read
by my learned brother Kayode Eso J.S.C. I too will dismiss this appeal for the
10
reasons he has given. The respondent is awarded costs assessed at N300.00.
Appeal dismissed.
15
ATAKE V. A-G., FEDERATION & ANOR.
FRANKLIN 0. ATAKE
20
V
THE A-G., FEDERATION & ANOR
SUPREME COURT OF NIGERIA
APPELLANT
RESPONDENTS
SUIT NO. SC 5/1982
SOWEMIMO,
25
IDIGBE,
ESO,
ANIAGOLU,
UWAIS,
26th November, 1982
30
J.S.C.
J .S. C.
J .S. C.
J.S.C.
J.S.C.
Contempt of Court - Contempt in faciae curiae - Plaintiff's proposed grounds of
appeal alleging inter alia, likelihood of bias because trial judge received
gratificationlfavour from 1st defendant between conclusion of case and ruling
-
Plaintiff refusing to withdraw and apologise for ground of appeal - Test
35
whether plaintiff guilty of contempt in faciae curiae, subjective or objective
-
Appropriate procedure for dealing with and punishing such contempts -
Inherent jurisdiction of superior courts of record to proceed either summarily
(brevi nzattu) or instanter - Requirements of two procedures distinguished -
Trial judge's discretion to commit plaintiff instanter properly exercised in
40
circumstances.
ISSUES:
1.
What
is the sort of conduct that will amount to "contempt of court'?
2.
What amounts to contempt in the face of the court (contempt in
curiae faciae)?
45 3. What is the proper procedure for punishment of contempt in
curiae faciae?
4.
Whether a trial judge must disclose to a contemnor who has committed
contempt in
curiae faciae
the particulars of the contempt when he (the judge)
deals with and punishes for the offence instanter as opposed to summarily.
5.
Whether the test for what amounts to contempt of court is subjective or objective,
50
and whether the contemnor's intention is material to the question of his guilt.
6.
Whether the 1979 constitution has in any way detracted from the common law
powers of Nigerian courts to punish for contempt of court in
curiae faciae.
445
NIGERIAN SUPREME COURT CASES
[1982) N.S.C.C.
FACTS:
The appellant had filed an application before the Chief Judge of the Federal
High Court for interlocutory injunction against the President of the Federal Repub-
lic of Nigeria and the Attorney-General of the Federation, seeking a declaration
that section (2) of the Allocation of Revenue Act 1981 is unconstitutional, void and
5
of no effect having regard to section 149(2) and 149(3) of the Constitution of the
Federal Republic of Nigeria 1979 and also a perpetual injunction restraining the
first defendant (President) from operating the provisions of the said section 2(2)
and any other provisions of the act.
The learned Chief Judge heard argument and reserved ruling thereon for 13th
10
March 1981. As the learned judge was about to read his ruling on the adjourned
date (13th March) the applicant made an oral application for the Chief Judge to
transfer the proceedings before him to another judge for hearing and determina-
tion on the ground that in the opinion of the applicant he was unlikely to do justice
in the proceedings because the 1st defendant had conferred on the Chief judge
15
the national honour of the Order of the Federal Republic (O.F.R.) six days before
the ruling and after final addresses of counsel. The Chief Judge stated that he
would write a ruling on the application later and proceeded to read his ruling on
the application for injunction which he refused the appellant.
On a later date the appellant then filed a motion on notice to the defendants for
20
leave of the court to appeal from the ruling. The learned Chief Judge first refused
the application for transfer for hearing and drew the appellant's attention to one of
the grounds in his proposed grounds of appeal. He asked the appellant to with-
draw the ground and apologise within five minutes, the appellant refused and the
Chief Judge ccmmitted him to prison for contempt in the face of the court.
25
The ground which the appellant refused to withdraw stated that the Chief Judge
had received gratification/favour from the President/1 st defendant in the form of a
national award, before he gave the ruling. However the Chief Judge had stated in
his ruling refusing the application of the appellant to transfer the hearing of the
proceedings tc another judge, that the President could not under the National Hon-
30
ours Act act on his own in awarding any member of the community any national
honour. He also pointed out that the award of "O.F.R." on him was made on the
1st of October, 1981, while the actual investment was what was made on the 7th
of March 1981 six days before the ruling. The appellant had filed the action against
the
1st
and 2nd defendants on the 4th of February, 1981, four months after the
35
award was made to the chief judge. His appeal to the Federal Court of Appeal
was dismissed unanimously.
On appeal to the Supreme Court, the appellant contended that the learned Chief
Judge erred in law in failing to tell him the precise portion of his proposed ground
of appeal which amounted to contempt of court, that the proposed ground did not
40
amount to contempt of court and finally that the Chief Judge erred in law in failing
to put him in the dock, and specifically charge him with the offence of contempt
of court, and prior to committing him to prison, calling on him (appellant) to show
cause why he should not be committed to prison for contempt of court.
HELD:
45
1.
Generally, contempt of court is any conduct which tends 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.
2.
That ever? insult offered to a judge in the exercise of the duties of his office is
50
a contempt of court, and it is even a grievous contempt where, as here, the
object is mainly to taint the source of justice. The scandalous imputation and
inference to be readily drawn from the ground of appeal in question is that the
learned Chief Judge, having been offered a bribe (by the opposite party in the
ATAKE V. A-G., FEDERATION & ANOR.
446
proceedings i.e. the president) in the form of an award of national honour at a
period between the conclusion of address by counsel in the interlocutory
proceedings and the ruling thereon, and being swayed from the path of
rectitude and justice, ruled, in abuse of the authority of his office, in favour of
5
the President.
3.
That for a contempt in
curiae faa'ae,
a superior court of record has inherent
jurisdiction to deal with it and punish for the offence either summarily
(brevi
many)
or instanter, without the process of a trial. Thus all pronouncements by
this court on the need firstly, to put a contemnor in the dock and have the charge
10
against him distinctly or specifically put to him and secondly, thereafter call on
him to show cause why he should not be punished for contempt of court, are
germane to the procedure for punishment for contempt upon a trial be it
brevi
manu
or upon formal indictment; they do not in any way seek to derogate from
the right of a superior court to deal with contempt in its face instantly i.e. without
15
any form of a trial, as was rightly done in this case.
4.
That the court, in cases of contempt in
curiae faciae
has a discretion (where
the contempt deserves immediate punishment and there is also no alternative
to immediate punishment for the said contempt) to jettison, as it were, the
procedure of a formal trial, and deal with and punish for, the contempt instantly.
20
5. If a trial judge chooses to proceed against a contemnor by some form of trial,
rather than instanter, then it is obligatory on him to give the contemnor a fair
hearing, i.e. the contemnor must have particulars of the charge or at least the
risk of it and must have the opportunity of answering the charge. In the instant
appeal, since the Chief Judge proceeded against the appellant instanter, there
25
was no need for him to have given the appellant particulars of the contempt.
The decisions of the Board of the Privy Council in
Re Pollard
and
Kiu v. Piggot
(1909) A.C. 312 did not detract from the age long or pristine rights of judges
of superior courts of record to deal with and punish instanter - i.e. without the
motion of a trial - for contempt in
curiae faciae.
30
6. That when the Chief Judge called upon the appellant to withdraw the offensive
ground within five minutes he was being given an opportunity to show cause
why he should not be dealt with and punished for contempt of court, and as
such even if the case were one of trial
brevi manu
(which it has been held not
to be but rather one of instant punishment) the procedure for trial in contempt
35
cases was indeed complied with.
7.
That a judge properly exercising hi:: power of punishment for contempt of court
does not do so out of any desire to vindicate his personality (for which purpose
recourse could be had in civil prc:ceedings for libel or slander) but out of a
desire to preserve and protect the authority and dignity of the court in the interest
40
of the general public.
8.
That the test for what amounts to contempt of court is subjective thus there is
no need for third parties or affidavits setting out the facts to enable the court to
arrive at the decision whether an alleged contemnor is de facto and de jure in
contempt of the court. Also, because the test is an subjective one the intention
45
of the contemnor is irrelevant in considering whether there has been contempt,
although such an issue may be germane on the degree of punishment.
9.
That the 1979 Constitution has in no way detracted from the common law powers
of Nigerian Courts to punish for contempt of court in
curiae faciae.
Though
there is no provision in the 1979 Constitution similar to Section 22(10) of the
50
1963 Constitution, subsection (3)(a) of section 36 and subsection (a) of section
6 of the 1979 Constitution when read together with section 6 of the Criminal
Code preserve for the courts the common law right to punish for contempt in
curiae faciae.
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