In The Matter Of The Constitution Of The Federation V. Re G.m Boyo (1970)

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COKER, J.S.C. 

The applicant in this matter has lodged an appeal in this Court against, inter alia, the decision of Atake, J. (High Court, Warri) given in the course of his trial for contempt of court. He has now applied for orders that, pending the hearing and determination of his appeal, the proceedings before the High Court, Warri, should be stayed and also that notwithstanding the rules of this Court his appeal be heard and determined on the papers exhibited in his present application.

We were not told whether or not the primary circumstances leading to this case are in dispute and indeed it is not necessary to consider these circumstances for the purpose of this ruling. It is sufficient to point out that the substance of the charge against the applicant is that he tried by writing a letter to the Accountant-General of the Mid-West State to obstruct the payment out of money which the same judge had ordered to be so paid out.

The case itself concerns an alleged contempt of court as stated before, but the question whether it was contempt committed in the face of the court, entitling the court to deal with it brevi manu, or contempt committed not in the face of the court was settled before this Court, it being generally agreed that the contempt alleged was not committed in the face of the court. This point is fundamental to the present proceedings before us and it is well to point out that all the arguments before us and this ruling have proceeded on that basis.

As can be gathered from the affidavits before us, the applicants states that he has some grounds for his action but again we observe that we are not now concerned with this aspect of the case. The charge on which the applicant is being tried, as formulated by the learned trial judge himself, reads as follows:-

“Attempted to countermand or render nugatory the order of this Court dated the 22nd December, 1969 to the effect that the sum of ‘a313,708′ 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 this Court of the said amount of ‘a313,708  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.”

The applicant was arraigned before the court and apparently the charge was read to him so that he might plead thereto. The records do not show whether he pleaded or not but learned counsel appearing on behalf of the applicant, soon after the reading of the charge, objected to the learned trial judge hearing the case on the grounds that he, the judge, was so “intimately connected” with the case. The judge’s notes of the objection of counsel for the applicant are as follows:-

“Mr Aghahowa: Takes a preliminary objection to this case being heard in this Court. This Court is so intimately connected and concerned with this matter that it should not hear it. This Court (Atake, J.) may be required to give evidence. Nemo debet esse judex in sua propria causa.

The cause is Atake, J.’s cause both as to the contempt of the Court and as to the personal contempt of Atake, J. A likelihood of real bias exists.”

The learned trial judge delivered a ruling in which he observed that his court was the proper forum to try the applicant and ended his ruling as follows:-

“Authority also can be got in R. v. Gray [1900] 2A.B. 36. Objection is over-ruled. ”
As stated before, the appellant has appealed against that ruling and the present application is to preserve the status quo until that appeal is heard.

Before us learned counsel for the applicant refers to section 22 of the Constitution of the Federation of Nigeria, 1963, which, so far as is relevant to this matter, reads as follows:-
“22 (1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:
(2) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing within a reasonable time by a court.
(4) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
(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.”

Learned counsel for the applicant then argued that this was a case of an infraction of constitutional rights and he was entitled to ask that such rights be determined and upheld. The learned Solicitor-General, Mid-West State, as a friend of the court, submitted that the application was not competent in that there was no right of appeal against an interlocutory order made in a criminal case.

We observe that the learned Solicitor-General did not address himself at all to the issue of the constitutional implication of the proceedings which are being challenged.

There is a great deal of argument with which we think it is unnecessary at this state to deal. It is manifest that the appeal before this Court must raise questions relating to what rights, if any the applicant has in the circumstances by virtue of section 22 of the Constitution as well as a determination of the content of such rights and in particular when in point of time an infraction of such rights, as envisaged by that section, really takes place. We are of course aware that in cases of bias imputed to a tribunal the test is not actual bias in fact but a real likelihood of it. See Salawu Oyelade v. Sanusi Araoye and anor. (1968) N.M.L.R. 41, also Allinson v. The General Council of Medical Education and Registration [1894] 1 Q.B. 750 (per Lord Esther, M.R. at p. 758); Obadara v. President, lbadan West District Grade B Customary Court (1965) N.M.L.R. 39.”

We observe that it is yet uncertain by what procedure a person who complains about a breach of his constitutional rights should come to court but section 32 (1) and (3) of the Constitution provides as follows:-

“32 (1) Any person who alleges that any of the provisions of this Chapter has been contravened in any territory in relation to him may apply to the High Court of that territory for redress.

(3) The Chief Justice of Nigeria may, with the consent of the Federal Executive Council, by order make provision with respect to the practice and procedure of the High Courts of the territories for the purposes of this section and may confer upon those courts such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling those courts more effectively to exercise the jurisdiction conferred upon them by this section.”

The rules relating to appeals provide for the jurisdiction of this Court in respect of matters decided by virtue of section 32 (1) and (2). No rules of court exist at present specifying the particular practice and procedure by which these constitutional rights may be protected and it must be accepted that no formal way is required for the invocation of the court’s powers to protect the invasion of such rights. See Sanni Akande v. Sanusi Araoye, (1968) N.M.L.R. 283. If the Constitution is to be upheld, and undoubtedly it must be, then a breach of it must be capable not only of being vindicated but also of being prevented.

This is the substantive matter to be decided in this appeal and it would be perverse to argue that if the present proceedings are not halted it would still be impossible to rule out the likelihood that a decision on this matter by this Court might be rendered nugatory.

For these reasons we feel that we must accede to the prayer of the motion before us for a stay of proceeding and we do so.

There is a second prayer, i.e. that despite the rules of this Court the appeal be heard on the papers before us. Learned counsel for the applicant had urged on us that the argument that the applicant holds an important position in the Nigeria Bar Association and that it is necessary in the interest of all concerned that the hearing of the charge might be disposed of expeditiously.

The learned Solicitor-General had sought to argue against this but in our view it was improper for him to do so as he had appeared only as amicus curiae. There is nothing wrong for an applicant to ask for the hearing of his appeal to be expedited; this is a matter for this Court and the circumstances to be taken into consideration are pre-eminently matters in the knowledge of this Court.

We are in agreement that the hearing of this matter should be given some acceleration but certainly are not in agreement that the rules should be dispensed with.

A charge of contempt of court is a serious one and it is necessary, not only for the protection of the courts of justice but also for the preservation of justice and the adminstration of it in this country, that acts or conduct which tend to invade those concepts should be very sternly dealt with and in good time as well. But it is implicit in the protection of justice that the means by which it is protected should be fairly administered. We think that proper records of appeal should be compiled in this case but that the compilation should be expedited.

A point was mentioned at the end of the arguments which relates to the way in which this matter should be presented to this Court for argument. We observe that in the recent case of contempt before the High Court in England (Morris and ors. v. The Master of the Crown Office, London Times, 11th February, 1970) the Master of the Crown Office was made the respondent before the Court of Appeal.

We think that in the present case the Attorney-General, who by virtue of the constitution is primarily responsible for the initiation, taking over, and even discontinuance of prosecutions for criminal offences, should be made the respondent.

In the circumstances the following orders are hereby made:-
(i) the proceedings in the charge against the applicant before the High Court, Warri, Atake, J. are hereby stayed pending the determination of the appeal lodged against the ruling on the objection to its being heard by the judge;
(ii) the Attorney-General of the Mid-West State should be cited as a respondent to these proceedings and copies of all relevant papers, etc. for this appeal, should be served on the Attorney-General who is hereby made the respondent;
(iii) the Registrar of the High Court, Warri, should forthwith compile and produce, not later than the 23rd May, 1970, a record of appeal in this case comprising the judge’s notes in the case as well as:-

(a) the notice and grounds of appeal;
(b) all the papers now before us in respect of the present application, and for the avoidance of doubt comprising of:-

(1) motion paper and supporting affidavits and exhibits;
(2) the affidavit of Mr Justice Atake dated the 13th day of March, 1970, together with the exhibits attached thereto;
(3) the affidavit of Mr Dominio Aghehowa and others dated the 20th day of February, 1970, together with the exhibits attached thereto.

Proceedings against applicant before High Court Warri stayed pending determination of appeal.

SC.53/70