Ene Ene Oku Vs The State (1970)
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COKER, J.S.C.
Ene Ene Oku, a legal practitioner, has appealed to this court against his conviction by Bassey, J. (High Court, Calabar).
The appellant was on the 12th June, 1969, so found guilty of contravening the provisions of Order XVI, rule 4 of the Eastern Nigeria High Court Rules, 1955 (operative in the South Eastern State), which the learned judge seems to have treated as a form of contempt of court, and sentenced to a fine of N11.
The circumstances leading to the conviction and sentence of the appellant are not unusual but the complaint before us turned on the approach of the learned trial judge to the whole matter.
An accused person in a criminal proceeding (Charge No. C/2C/69) pending before the court, Jerome Agabi, had apparently retained the services of the present appellant. Pursuant to this the appellant had filed in court and before the learned trial judge a motion dated the 21st April, 1969, asking the court to grant bail to Jerome Agabi pending the hearing of his case.
There was some argument later as to whether the accused had retained the services of the appellant only for the purpose of getting him out on bail or for defending him in the entire proceedings in accordance with the affidavit of the appellant himself when he stated that “my services have been retained by the accused to defend himself.
In other circumstances a great deal might depend on the resolution of this argument but in view of the approach of the learned trial judge to the matter the point is not of much importance.
To continue the narrative, after some adjournments the motion was listed for the 5th June, 1969, and the appellant was present in court when the date was fixed. On the 5th June, 1969 when the case was called, however, the appellant was absent from court and the trial of the accused commenced, the accused being ready to defend and in fact defending himself. The learned trial judge on that day made an order in the following terms:
“a bench warrant to issue to Mr. Oku to explain why he should not be committed for contempt of this court.”
In time the appellant was arrested by virtue of a warrant dated the 5th June, 1969 the introductory part of which reads as follows:-
“Complaint on oath has been made on the 5th date of June, 1969 by police, that E. E. Oku, Esquire hereinafter called the defendant, on the 5th day of June, 1969 at High Court, Calabar in the Calabar Judicial Division aforesaid, did absent himself from court without sending an explanation to the court explaining his absence, thus showing disrespect to the court.”
It seems that the learned trial judge had ordered that the appellant be produced before him on the 9th June, 1969. On that day, however, the appellant was not produced and the learned trial judge entreated the appellant’s bail and ordered that he should be rearrested on a fresh warrant and brought before him on the 11th June. The introductory part of the second warrant dated 9th June, 1969, is as follows: –
“Complaint on oath has been made on the 9th day of June, 1969 by police that E. E. Oku, Esquire hereinafter called the defendant on the 9th day of June, 1969 at High Court, Calabar in the Calabar Judicial Division aforesaid, did absent himself from court after having signed a recognizance to appear in court on 9-6-69. Thus showing disrespect to the court. And for failing to appear to conduct a case in which he had already appeared.”
On the 11th June, 1969, the appellant was produced before the judge who then proceeded to address the appellant thus:-
“Mr. E. E. Oku, you as a solicitor of the Supreme Court of Nigeria, having duly appeared to defend charge No. C/2C/69 before this court and in particular having appeared on 12-5-69 when the case was adjourned to 5-6-69 failed to appear to defend the accused without the prior permission of this court to be absent contrary to Order XVI, rule 4 of the High Court Rules, 1955 of the former Eastern Nigeria, still applicable to the South Eastern State of Nigeria. What have you to say, are you guilty or not guilty” The appellant pleading not guilty appeared by counsel who contended that his client’s instructions were limited to the application for bail and certainly not for conducting the entire defence. The appellant’s counsel also contended that the appellant had tried but had not succeeded to contact the client since the motion for bail was filed.
After the appellant (not-withstanding he was represented by counsel) had addressed the court at some length (not giving evidence be it noted) the learned trial judge endorsed his records thus: – “adjourned to 13-6-69 for judgement”.
However, on the 12th June, 1969, the learned trial judge delivered a reserved judgement in which he recounted the circumstance preceding the present proceedings and grounding them including the complaint already referred to by us against the appellant.
In the judgement the learned trial judge observed as follows:-
“In view of Mr Oku’s defence one would have thought that the most appropriate thing for him to do was to plead guilty and apologise. But Mr Oku pleaded not guilty and was represented by counsel. He elected to offer his explanation through his counsel”
The judge then rejected the explanations of the appellant for being absent from court on the 5th June, 1969. He ‘considered the case of Izuora v. Regina [1953] A.C. 327 where the Privy Council considered the provisions of Order XVI, rules 11 and 19 of the Rules of the Supreme Court of Nigeria (Which are in pari materia with rules 4 and 13 of Order XVI of the Eastern Nigeria High Court Rules) and observed that Izuora’s conduct did not constitute a contempt of court. The learned trial judge observed in respect of Izuora’s case as follows:-
“Their Lordships also held that what Izuora did was discourtesy and did not go over the border to criminal contempt of court. But I think Izuora’s case is distinguishable from the present case. In that case he had finished conducting the case and therefore the need for him to appear was not as urgent as in this case. That case was a civil case while this is a serious criminal case.
Again in Izuora’s case a sentence of imprisonment was imposed which was not provided for under rule 19 of Order XVI of the Supreme Court Rules under which the learned judge acted. This seems to be from the speech of Lord Tucker, what weighed on the mind of the Privy Council. ”
At the end of the judgement he stated as follows:-
“I therefore find that the defendant has violated the provisions of Order XVI, rule 4 of the High Court Rules, 1955”.
On the appeal before us a number of grounds of appeal were filed and argued on behalf of the appellant but it is only necessary to deal with one of them which states:-
“3. The learned judge misdirected himself in law in that having initiated proceedings under Order XVI, rule 4 of the High Court Rules (E.R.) he proceeded to found his judgement, as stated by him in the first paragraph thereof, as on a “contempt of court.”
In the course of the argument of this ground of appeal by learned counsel for the appellant, Mr. Ekong, Senior State Counsel, who appeared for the respondent, frankly told the Court that he was not longer supporting the conviction of the appellant. We think he took the wisest step in the circumstances but nonetheless in view of the importance of this matter we propose to write a judgement.
It is beyond doubt that what was tantamount to a criminal charge was framed by the learned trial judge and read over or caused to be read over to the appellant. He was then requested to, and indeed did, plead to that charge. In that charge the conduct of the appellant is stated to have breached the provisions of Order XVI, rule 4 of the High Court Rules.
The rule reads as follows:-
“Every solicitor who shall be engaged in any cause shall be bound to conduct the same on behalf of the plaintiff or defendant as the case may be for whom he shall have so engaged, until final judgement, unless allowed by the Court for any special reason to cease from acting therein; but he shall not be bound, except under express agreement, or unless re-engaged to take any proceedings in relation to any appeal from such judgement.”
At this juncture it is well to refer to a point which was raised before the learned trial judge concerning the import of this rule. It was submitted on behalf of or by the appellant that the rule in envisaging a “cause” in contra-distinction to a suit does postulate that an application for bail for an accused person constitutes by itself cause without necessarily including the conduct of the entire defence.
We think that the submission is misconceived. Whilst we are not prepared to say that a legal practitioner may be instructed only for purposes of applying for bail for an accused person we think it right to point out that by virtue of the definition of “cause” in section of the High Court Law, Cap. 61 (Laws of Eastern Nigeria, 1963, operative in the South Eastern State), a criminal proceeding is implied thereby. On the 5th June, 1969, when the trial of the accused Jerome Agabi commenced, the application for bail had not yet been disposed of and had in fact been adjoined to that date. A failure to attend court on that date, even if it be merely for the purpose of applying for the bail of the accused, is clearly envisaged by Order XVI, rule 4. The learned trial judge however did not deal with the matter on that basis but seemed, for reasons which are not clear from the records, to take the view that the appellant was retained for the entire defence of the accused person although it is surprising that the accused himself said nothing on this point.
In the proceedings on appeal, the learned trial judge manifestly dealt with the appellant as if he had been charged with contempt of court and exercised a summary jurisdiction which in appropriate cases is exercisable by a superior court of record such as the High Court.
The power to punish summarily for a contempt in the face of the court is ‘undoubted and when a contempt is committed in facie curiae a superior court of record is entitled to punish it by fine and/or imprisonment as part of the jurisdiction of the court to prevent brevi manu any attempt to interfere with the administration of justice. As Cockburn, C.J. said in The Queen v. Lefroy [1873] L.R. 8. Q.B. 134 at p.137:-
“It is perfectly true that it is laid down by authority, and reason shews the correctness of the rule, that all courts of record have power to fine and imprison for any contempt committed in the face of the Court; for the power is necessary for the due administration of justice, to prevent the Court being interrupted… In the case of the superior courts at Westminster, which represent the one supreme court of the land, this power was coeval with their original constitution, and has always been exercised by them.”
See The Queen v. Judge of the Brompton County Court and Vague [1893] 2 Q.B. 195; also the recent English case of Morris & Ors. v. Master of the Crown Office (Times, 11th February, 1970 (p.13) Court of Appeal).
Apart from this power however, contempt of court is punished by attachment or committal and the procedures for these are well known. In Joseph Izuora v. The Queen (supra), the appellant there had failed to appear in court in order to take the judgement in a case in which he had appeared for one of the parties, despite the warning of the judge that he should not be absent.
He was thereafter dealt with for contempt of court and convicted therefore. On appeal from a conviction in such circumstances, the Privy Council (Lord Tucker) observed at p.336 as follows:-
“It is not every act of discourtesy to the court by counsel that amounts to contempt not his conduct which involves a breach by counsel of his duty to his client necessarily in this category. In the present case the appellant’s conduct was clearly discourteous… and it may perhaps have been in dereliction of his duty to his client but in their Lordships’ opinion it cannot properly be placed over the line that divides mere discourtesy from contempt.”
We have already referred in the course of this judgement to the conduct of the appellant which is being impugned. We are clearly of the opinion that whilst the appellant herein may have been guilty of dereliction of his duty to his client by failing to appear for the application for bail, that is however how the learned trial judge dealt with the matter and we can find nothing on the record to justify any view that he committed a contempt of the court.
This, however, is not all there is to the appeal. The learned trial judge made it clear from the beginning of the proceedings appealed that he was dealing with the appellant for a breach of Order XVI, rule 4 of the Rules of Court Order XVI, rule 13 of the same Rules provides as follows:-
“Any solicitor who commits any breach of any of the provisions of this order or who fails to comply with any of its provisions for which breach or non-compliance a specific penalty is not provided shall be liable for a first offence to a fine not exceeding fifty pounds without prejudice to the powers of the Court to suspend any solicitor from practising in any court within the jurisdiction of the Court.”
We have already pointed out that Order XVI, rule 4 applies as well to criminal proceedings and it follows from the provisions of these rules that a breach of rule 4 incurs the liability “for a first offence to a fine not exceeding ‘a350 without prejudice to the powers of the court to suspend… from practising in any court within the jurisdiction of the court.” (See Order XVI, rule 13).
In the case in hand, the learned trial judge took the view, wrongly in our judgement, that Order XVI, rule 4 deals with contempt in facie curiae. With respect, it does not. If, as was contended, the solicitor did not conduct the cause for which he was engaged by a party, then he would incur the liability prescribed by Order XVI, rule 13.
That rule clearly involves a conviction for, or finding guilty of, an offence and it is elementary law that in those circumstances the guilt of the person charged must be proved according to the law and that until this is so proved he could not be held liable. We take the view therefore that proceedings for contravention of Order XVI, rule 4 are proceedings for a criminal offence and in the holding of such proceedings the provisions of section 285 of the Criminal Procedure Act dealing with the manner of hearing must apply and were not applied here by the learned trial judge.
We observe that in concluding his judgement the learned trial judge had refrained from using words such a “guilty” or “conviction” or cognate expressions. We are not in any doubt, however, as to the substance of the entire proceedings; the appellant was asked to plead whether he was guilty or not and he did then plead “Not Guilty” and the enquiry was to ascertain the rightness of his plea. The law should be, and indeed is, able to encompass the subtle as well as the obvious infraction of it and a finding of guilty of a criminal offence where the procedure prescribed by law has not been followed in the preceding investigation, whatever be the phraseology in which the finding is couched, cannot be allowed to stand.
We have set out briefly the introductory parts of the two warrants issued for the arrest of the appellant on the 5th June, 1969, and the 9th June, 1969. Both warrants refer to complaints having been made on oath against the appellant. No such evidence was shown to exist; at any rate nothing appears to support this on the records of appeal before us.
We bear in mind that the judge ordered the appellant to be arrested with a bench warrant but both warrants used in arresting him on both occasions were clearly not bench warrants and are clearly false to the extent that they were regarded as such. Where contempt of court is punishable brevi manu in court no warrant is necessary for the apprehension of the offender as his is always in court and the contempt is stated to have been committed coram judice. In other cases the proper procedure of apprehension or arrest, charge, prosecution, etc., must be followed and if followed will obviate the necessity of having to amend the processes in so distasteful a way as had happened in this case.
We conclude that for reasons appearing in this judgement, this appeal must be allowed.
It is so allowed and the judgement appealed from (Charge No. C/2C/69 High Court, Calabar) involving the conviction and sentence of the appellant is set aside.
We order that in its place an order of discharge and acquittal be entered in favour of the appellant and if the fine of N11 has already been paid by him, it should be refunded forthwith.
Other Citation: (1970) LCN/1817(SC)
