Comrade M. Z. Nzidee & Ors. V. Comrade Justice Kootu & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
In the determination of this appeal, I find the introduction/summary of facts made in the Respondent’s brief as comprehensive and representative of all the crucial facts of this appeal. I have reproduce same with some essential modification as part of this judgment. The abridged facts of the appeal are as follows:-
This is an appeal against the ruling of the Hon. Justice C. I. Uriri sitting at the Port Harcourt Division of the High Court of Rivers State.
All the parties in this appeal said to be are members of a trade union called Nigeria Civil Service Union (hereinafter called “The Union”). It is the 8th defendant/appellant. The Plaintiffs/Respondents and 1st – 5th defendants/appellants are from the Rivers State Council of The Union. The 6th and 7th defendants/appellants are the State Secretary and National President of The Union respectively.
By the Constitution and Code of Ethics of The Union (2001) hereinafter called “The Union Constitution”), elections; into executive offices are to be conducted once the tenure of four years expires. And so when the tenure of the Rivers State Executive is said to have expired on the 4/8/2004, and (1st – 5th appellants) elections were schedule for September 8th, 2004.
For some reasons, the election of 8th September, 2004 became inconclusive. The Union Constitution, (see rule 27 (ix), provides that at the expiration of the tenure of four years and a subsequent dissolution of the executive committee, a caretaker committee should be appointed in the event of an inconclusive election to produce substantive officers. Rather than establish a caretaker committee as provided by the Union Constitution, the 6-7th appellants are said to have declared that the expired term of the executive of the 1st – 5th appellants should continue; and “the status quo maintained”.
Aggrieved, the Respondents filed this suit as financial members to challenge a perceived breach of the Union Constitution. The Respondents also filed two motions for injunction. The exparte application was not taken as the learned trial judge ordered that the appellants be put on notice. The writ of summons is at pages 1 & 2. The motion exparte is at pages 4 – 5 and the supporting affidavit is at pages 6 – 9. The Union Constitution is at pages 10-34; and 50-74. The motion on notice is at pages 44 and 45 whilst the affidavit in support is at page 46 – 49.
The appellants entered an appearance and also filed a preliminary objection challenging the jurisdiction of the trial Court (see pp. 92-93 of the record)
While the argument on the preliminary objection was still on, the court was informed by respondent’s counsel that the subject matter of the dispute in court had been interfered with i.e. that the appellants had gone ahead to conduct an election to fill the vacant office whilst suit was pending with a motion on notice for interlocutory injunction.
The Court heard respondents’ counsel’s complaint and the response from the appellants and their counsel (see page 130 of the record). Mr. Mbagwu of Counsel admitted that indeed elections were held to fill the vacant executive offices on 30/11/04. This response the learned trial Judge considered to be a confession.
The learned trial judge heard submissions from 5 senior members of the Bar present in Court at the time as amicii curiae (see Pages 104 and 105).
The learned trial Judge reasoned that if the election was allowed to stand, there would be nothing left for the Court to determine in the main suit. In a considered bench ruling his lordship ordered that the election conducted while the main suit and the motion on notice were still pending, stand nullified.
The contemnors were however discharged with a caution to sin no more. The ruling of the court is at pages 105 – 107 also at pp.108-111 of the records.
The Respondent’s brief raised a preliminary objection as to the competence of the appeal. An Appellant’s Reply brief was filed in response to the P. O. both of which shall be considered anon.
It is the submission of the learned Counsel for the Respondents, that the appeal is incompetent and should be struck out. The reason, posits, the learned counsel, is the failure of the Appellant to seek leave pursuant to section 242 (i) of the 1999 Constitution; the appeal being one based on facts or on mixed law and fact. The following cases are cited in support of the submission.
- UBN Plc v. GOMBE OIL Seed & Processors Ltd. (2003) FWLR (Pt.163) P.111
- OGBECHIE V. ONOCHIE (1986) 2 NWLR (Pt.23) 484.
- OWENA BANK PLC v. OLATUNJI (1000) 13 NWLR (pt. 634) 218 @ 231.
- JOV v. DOM (2001) FWLR (pt.62) 2026 (1999) 9 NWLR (pt. 620) 538 at 547.
- AJANI vs. GIWA (1986) 3 NWLR (pt. 32) 796 @ 804.
It is further the contention of the learned Counsel that ground two is also incompetent for raising an issue outside the ruling of the Court, thereby introducing a new issue also without the requisite leave of this Court. Counsel cites the case of KADZI INT. LTD v. KANO TANNERY LTD (2003) FWLR (pt.184) p. 255 at 281, to buttress this point.
In response, the learned counsel to the Appellant relied on the provisions of section 241 (i) (a) of the 1999 Constitution in submitting that the Ruling of the trial court was a final decision for which leave to appeal was unnecessary, appeal, lying in such case, as of right. It is the submission of the learned Counsel that the ruling appealed against derived from a contempt proceedings which is an independent and complete proceedings separate and distinct from the main suit in the course of which it arose. Referring in some considerable details to the Ruling of the Court as reproduced on page 106 of the Record of this appeal, the learned Counsel submits that the Ruling of the trial Court was a total consideration and a final determination of the rights of the parties to the said contempt proceedings. To buttress of this point, the learned counsel relied on the decision of the Supreme Court in EBOKAM V. EKWENIBE & SONS TRADING CO. LTD. (1999) 10 NWLR (PT.622) P.242 at 250-251.
In the said case, KALGO JSC, fully recounted the evolution of the distinction between a final and an interlocutory decision for the purposes of an appeal. The formidable decision is relevant in this appeal and is hereby reproduced extensively as follows:
“There is no doubt that the gravemen of this appeal lies on whether the decision of the learned trial Judge was interlocutory or final. It is well established by myriad of decided cases both in England and in this Country that there are two distinct tests to be applied in deciding whether a decision of a Court of first instance is interlocutory or final. The two classical authorities upon which these tests are formulated are BOZSON v. ALTRINCHAN U.D.C. (1903) IKB 547 and SALAMAN v. WARNER (1891) 1QB 734. In the BOZSON’S case, at p.548 Lord Alveston C.J. said,
‘It seems to me that the real test for determining this question ought to be thus: Does the judgment or order as made, finally dispose of three rights of the parties? If it does, then I think it ought to be treated as a final order: but if it does not it is then, in my opinion, an interlocutory order’.
In SALAMAN v. WARNER case at P. 735 Lord Esther M. R. put the matter thus:
‘Taking into consideration all the consequences that would arise from deciding in one way or the other respectively, I think the better conclusion is that the definition which I gave in STANDARD DISCOUNT CO. V. LA GRANGE is the right test for determining whether an order for the purpose of given notice of appeal under the rules is final or not. The question must depend on that would be the result of the decision of the Divisional Court, assuming it to be given in favour of either of the parties. If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute I think that for the purpose of these rules, it is final, on the other hand, if there decision, if given in one way will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory’
“There is no doubt that looking at the two tests in BOZSONS’S and SALAMAN’S cases set out above one would say that the principles Enunciated therein are slightly dissimilar to each other. In other words they are not saying the same thing. For while the test in BOZSON’S case looks at the nature of the order made, the test in SALAMAN’S case looks at the nature of the proceedings in which the order is made. In England the position is now very clear in the nature of the order test in BOZSON’S case is very much preferred and applied. To this extents, it would appear that the BOZSON’S case has overruled SALAMAN v. WARNER case. In this country, the nature of the order made test has been approved and applied in our court.”
At page 252 B-H, the learned Justice of the supreme Court further stated;
“In AKINSANYA V. U.B.A. LTD (1986) 4 NWLR (PT.35) 273 ESO JSC in his leading judgment discussed various English decisions which dealt with this point and examined the effect of those decisions on the views and opinion of our Courts on the matter particularly the recent Supreme Court case of OMONUWA v. OSHODIN (supra).
However, after quoting extensively from the decision of the Federal Supreme Court in the case of UDE & Ors. (supra) on the difference between the two tests mentioned above, the learned justice had this to say on p.293 of the report:-
‘And so, it has been that the courts in this Country have adopted the test that looks at the order made as against the test that looks at the nature of the proceedings. It is also clear that before OMONUWA V. OSHODIN, the two tests have been regarded as contradictory’.
The test that looks at the nature of the order made was the one enuciated by Lord Alverstone C. J. in the BOZSON’S case but ESO JSC did not altogether discard or disqualify the test in the SALAMAN’S case. He said on P. 295 of the report that:
“There is no doubt that I see nothing obnoxious in the SALAMAN v. WARNER test, as a test; but I think it is more practicable and more certain to keep to just one test – the BOZSON v. ALTRINCHAM test which has been preferred in this Country for so long.
Still in the AKINSANYA case, ESO JSC discussed OMONUWA v. OSHODIN case extensively and said on p. 296 of the report thus:-
“l have held the view and it is my conclusion that the decision of this Court: in OMONUWA v. OSHODIN should not relate to the problem arising in the Court of trial.”
Earlier on p.294 of the report he observed:-
“I have no difficulty in agreeing with Chief Williams at this stage, therefore, that in this Country in so far as the Court of first instance is concerned, the nature of the order test should be adhered to and the test as pronounced by Alverstone C.J. in BOZSON v. ALTRTNCHAM should be upheld by the Courts. There is no more magic in the BOZSON v. ALTRTNCHAM test. It is a matter of practical convenience to stick to one test if it has been accepted for so long, and there is really nothing wrong with it”
“I also agree with this view and will apply the nature of the order test in this appeal which concerned the order of the Court of first instance.”
Applying these principles to the appeal at hand, the case of ADEYEMI v. AWOBOKUN (1968) 2 ALL NLR p. 318 says that an order of committal for contempt of Court is a final order. Thus, when the trial Court ordered the alleged contemnors to go and sin no more, it presupposes that they have been found guilty either punished or forgiven and ordered to sin no more.
In this appeal, the sin was identified as the election conducted and which election was annulled by the trial Court. It would have amounted to double jeopardy to further commit the contemnors to prison. They have been punished by the nullification of the election and then cautioned/warned to sin no more.
Thus, the test is if the order finally disposes of the rights of the parties, then the nature of the order is crystal clear – final.
Alternatively where there is a pending suit, then the test is whether it in any way affects the status of the parties for either side. Applying this test to this appeal, the alleged contemnors had their election as officials of the Union annulled – altered status. They were also cautioned to sin no more, having been found guilty upon their ‘confessions”, declared the learned trial Judge..
The said Ruling is in all ramifications, a final decision on the issue of contempt which decision most certainly determined the rights and affected the status of one side of the parties in the main proceedings. No leave was required. Appeal lies as of right.
As to whether ground two is of law or fact, I will stay with the “nature of the order” principle.
In the case of ABIDOYE V. ALAWODE (2001) 3 SC p.7 art 13, ACHIKE JSC (of blessed memory) said thus “… the law is quite clear that it is not what the appellant chooses to designate a ground of appeal that controls, rather, it is the nature of the ground of appeal read together with the particulars that characterize the ground of appeal as one of pure law or of mixed law and fact or fact alone”
Also, in MPDT v. OKONKWO (2001) 3 SC 76 at 87, the Supreme Court emphasized that the important consideration in the determination of the nature of a ground of appeal is not the form of the ground but the question it seeks to determine and in each case the Court has to critically examine the ground of appeal to determine its nature regardless of the contention of the parties.
Let me further expound on this issue for clarity. A ground of appeal does not cease to be that of law simply because facts are involved. Of course, all matters for adjudication necessarily involve the use of facts.
The cardinal test is what does the appeal seek to determine? Is it the evaluation of facts, the ascription of value to established facts, or the application of the law to undisputed facts?
It appears that adjudication is mainly about the resolution of conflicting facts and the interpretation and application of the law to undisputed facts. Thus, when the facts are undisputed, as in this appeal, then the bone of contention becomes the application of the law to the undisputed facts.
In the summary of facts in its brief of argument, the learned counsel for the Respondents clearly declared that:-
“There was; therefore no dispute about the holding of the election while the motion for injunction and the substantive suit were pending.”
It was upon these undisputed facts that the learned trial Judge found the contemnors guilty and accordingly annulled the said election. This is the basis of the appeal under consideration. I am unable to decipher the disputed facts upon which this appeal is premised other than the application of the law to the undisputed facts.
In this situation the decision appealed against was a final decision, therefore, the issue of leave does not arise and it is not the contention of the Respondents that the Appellant came out of the requisite time allowed.
Further, a close perusal of the grounds and particulars of the appeal disclose that an issue of jurisdiction lies at the heart of the appeal, thus, placing the appeal squarely on, the pedestal of a ground of law.
I find no merit in the preliminary objection which is hereby dismissed.
We proceed now to the substantive appeal.
GROUNDS OF APPEAL
The three grounds of appeal without their particulars are as follows:-
GROUND 1
The learned trial Judge erred in taw when he declared null and void the election of the Executive Officers of the Rivers state council of the Nigeria Civil Service Union at the State Council’s Delegates conference held on 30th November 2004.
GROUND 2
The learned trial Judge erred in law when he held that the Delegates Conference of the Rivers State Council of the Nigeria Civil Service Union of 30th November, 2004 was in contempt of the Court and thereby came to a wrong decision when he declared the elections held therein as null and void.
GROUND 3
The learned trial Judge erred in law when he Proceeded to deliver the ruling of 2nd December, 2004 in the suit herein and thereby declared null and void the elections held during the Rivers State Delegates Conference of the Nigeria Civil Service Union of 30th November, 2004.
The Appellants had two issues formulated for them as follows:-
- Whether the alleged fact of the election of new Execution Officers of the Rivers State Council of the 8th Appellant Union by the reconvened Delegates Conference of that Council on 30th November, 2004 is capable of supporting the charge of contempt of Court against the Appellants.
- Whether the learned trial Judge adopted and followed a proper and lawful procedure in convicting the Appellants of contempt of Court for conducting the election of new Executive Officers of the Rivers State Council of the 8th Appellant Union during the pendency of the suit herein and annulling the said election.
For the Respondents, a sole issue was formulated for determination to wit:
“whether the lower Court was right in the exercise of its disciplinary jurisdiction when he declared as null and void the election conducted on 30.11.04 in view of all the surrounding circumstances of this case.
A thorough perusal of the records for this appeal, particularly of the grounds of appeal and their particulars and the issues formulated by the two sides disclose that the proceedings of the 2nd day of December 2004 ties at the root of the complaints of the Appellant.
The question to ask and determine is:- on the said 02/12/04, what was the business of the Court for the said day? On the face of the records, the proceedings commenced with a head note titled:- reply on points of law by MBAGWU ESQ.” The brief reply was made at page 102 of the records. After the reply, the next thing should have been either the Ruling or an adjournment. Rather, without an indication that there was a further application/process before the Court, another head note appears as follows:- at page 103,
“Continuation of Proceedings of 2nd December 2004.”
“Distinct Complaint of W. ABERETON ESQ.”
The learned Counsel went thus;
“while suit No.PHC/1514/04 is pending before the Court, the Defendants… went behind the scene and conducted an election to fill the vacant offices for which we are in Court… I therefore urge the court to do everything within its powers to preserve its integrity.”
MR. MBAGWU as learned Counsel for the Appellants responded inter alia as follows:-
“The defendants conducted the election in accordance with the Constitution of the Union … The claim before the Court has no bearing with the election …”
Also recorded in the proceedings as Amicus curiae were: (at page 104) E. A. AMADI ESQ.
E. B. UKIRI ESQ, (3rd Vice National Chairman of NBA),
V. O. OKOLUO ESQ (Vice Chairman NBA, Port Harcourt, Branch),
CHIEF A. M. EKWEM and
MR. WOKOCHA.
Each of these learned counsel apparently urged the court to protect itself by annulling the said election. How they came into the matter is not reflected on the records. The learned Counsel for the Appellant said the Court sought their opinions. I have no cause to doubt that submission not having been controverted. The learned trial Judge thereafter instantaneously produced a three page Ruling. In the said ruling, the learned trial Judge made extensive reference to the records of the entire case far beyond the brief submissions of both the learned counsel representing the parties.
His lordship at the trial Court concluded his inquisition in these terms:
“Fortified by these conclusion, this court shall do no more than to rise to defend not only its integrity but, that of the generality of the public. The contemnors have murdered sleep.
In the light of the foregoing, I have no choice other than to declare the purported election null, void and of no legal effect. In consequence thereof, the purported election of the 30th day of November 2004 is hereby declared null and void and hence, of no legal consequence And, in the case of the contemnors let them sin no more. They are discharge. Finally, let the matter do stand adjourned to the 3rd day of December 2004 for ruling on the preliminary objection”.
Some kind of trial within trial it appears!
No notes were made to indicate exactly what was going on in the court. The records however portray some kind of inquision introduced by the Respondent’s Counsel and then handed over to the learned trial judge who become both prosecutor and Judge!
1st and foremost, there was no contempt proceedings initiated by due process pending before the trial court. His lordship nonetheless, felt obligated to invoke his disciplinary powers to protect the integrity of the Court. The learned trial Judge masterly referred to decided cases which enjoin the Court to protect itself. The learned Counsel, Mr. Abereton had arouse this instinctive self protection by the Court when he submitted that the Appellants as Defendants had drawn the carpet off under the feet of the court. If such were the situation, was the verbal complaint of the learned Counsel sufficient to initiate the formidable contempt proceedings and its attendant consequences?
As earlier noted, both parties formulated the issues they each deem appropriate for the determination of this appeal. A lot of energy was expended on the issue of the disciplinary jurisdiction of the trial court. It was the submission of the learned counsel for the Respondent that the disciplinary jurisdiction of the Court is inherent in it as adjudicator qua Judex and that the Court must exercise this disciplinary jurisdiction in deserving cases or face concomitant loss of its integrity and dignity. Very well stated, I must say. However, there are laid down procedures to regulate this enormous power of the court to protect and uphold its dignity and integrity against over zealous litigants and their learned Counsel.
This appeal, in my opinion, can be fully determined upon the sole issue formulated by the Respondent which issue is similar in terms and contents to the issue No 2 of the Appellant. This issue subsists on ground two of the three grounds of appeal filed.
The said issue is accordingly hereby adopted for the purpose of this appeal.
I find the submission of the learned counsel for the appellant on issue two as apt and I have substantially reproduced same as part of this judgment.
The facts of this purported entire contempt proceeding, as reflected in the record of the trial court, can be found at pages 102 to 107 of the Record of Appeal. These have already been summarized in this judgment.
The entire proceedings commenced with the complaint of the learned counsel to the Respondent to the effect that the Appellants, particularly 1st, 2nd, 3rd, 6th and 8th, except 4th and 5th Appellants, had on the 30th November, 2004 hurriedly gone behind the scene and conducted an election of the Executive Officers of the Rivers State Council of the 8th appellant Union at the Obi Wali Cultural Center. Counsel submits that the said conduct was in contempt of court and urged the Court to preserve its integrity.
Responding, the learned counsel for the Appellants contended that the said erection was not a secret as the Respondents themselves were present and also participated therein and that the said election was not in contempt of court as same was not within the claim before the court.
The learned trial judge there on questioned the 1st, 3rd and 6th Appellants as to the events of 30th November, 2004. Thereafter, his lordship is said to have sought and entertained the opinions and submissions from several counsel in court whom he termed “Amicus Curiae”.
‘The learned trial Judge, submitted counsel for the Appellants, proceeded to deliver a ruling that day, wherein in convicted all the Appellants of contempt of Court (both the 1st, 3rd and 6th Appellants who were in Court and the 2nd, 4th, 5th and 7th Appellants who were not present in Court) and thereby nullified the said election of 30th November, 2004. He however discharged the “contemnors” with a warning to “sin no more”
At no time during the entire proceedings was a charge of criminal contempt or contempt of any nature distinctly stated or stated at all to the Appellants by the learned trial Judge, contrary to laid down legal principles. (Refer: AWOBOKUN v. ADEYEMI (1968) NMLR 289 at 296 to 297.)
The learned trial Judge declared the conduct of the Appellants as a contempt in facie curia.
It is necessary to consider whether the alleged contempt if any, was committed in facie curiae (or Goram Judice) or ex facie curiae (or Coram non judice) as a different procedure applies to each of the two categories of contempt. The distinct nature of the two categories of contempt and the respective procedures applicable to them have been aptly described by the Supreme in FAWEHINMI V. STATE (1990) 5 NWLR (pt.148) 42 at 76 E-F as follows:-
“…the offence of contempt of Court can be divided into two broad categories viz:- (1) Those committed in the face, of the Court outside the Court hall or premises otherwise said to be lox facie curiae (or Coram non juicer). In respect of the first category, the offender can be apprehended and punished, right there in the Court either by imprisonment or fine, without the necessity of framing any charge, taking plea or calling any witness. But in the later case of contempt committed ex facie curiae, the normal procedure of issue of warrant, arrest, drafting of charge, taking of plea, calling of witness etc must be followed (emphasis mine)
The election of 30th November, 2004, the basis of the alleged contempt in this appeal, took place at the Obi Wali Cultural Center outside the location of the Court and outside the view of the learned trial judge, the alleged contempt arising there from was clearly ex facie curiae. There is no indication that the learned trial Judge had moved its Court to the said Cultural Center where the alleged contempt took place before its full glare. In the case of ABIEGBE v. REGISTERED TRUSTEES OF THE AFRICAN CHURCH (1992) 5 NWLR (Pt.241) 366 at 388 C-D; this Court, per OMOSUN JCA, observed that: “…Contempt in the face of the Court means a contempt which the judge sees with his own eyes; so that he needs no evidence of witnesses. He can deal with it himself at once.”
Thus the said election of 30th November, 2004, the fact of which was brought to the attention of the learned trial Judge on 2nd December, 2004 by the complaint of the Respondents, counsel, could not amount to contempt in facie curiae. In the CASE Of BOYO V. A.TTORNEY GENERAL OF MID-WEST STATE (1971) 1 ALL NLR 342 at 383 the supreme court cautioned that where the contempt is not in the full view of the Court, 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 in 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” (emphasis supplied)
Similarly, in the case of ATAKE v. ATTORNEY GENERAL OF FEDERATION (1982) 11 S.C. 153 at 203-204 lines 5 – 10 IDIGBE, JSC; stated the position, as follows:-
“That general, contempt of Court are either dealt with by trial summarily, i.e. brevi manu or simple indictment or on information, whether or not the contempt is in curiae faciae (and trials for contempt of Court by indictment of information are usually before another Judge whose Court was not the subject of the contempt)..” Again, where the judge decides to proceed by a ‘trial’ for contempt of Court – oven it in curiae faciae – then no matter how summary he intends the proceedings to be, the contemnor must have a fair trial before he is visited with punishment (i.e. he must have particulars of the charge or at least the gist of it.. See KIU v. PIGGOTT (supra) – and must have the opportunity of answering the charge”.
Not even the semblance of a charge was put to the alleged contemnors. I have gone this far on the issue of contempt in order to give a proper perspective to the subject. Stricto senso, there was no contempt proceedings properly before the court. The Court stepped out of its jurisdiction in adopting a rather strange procedure in striking down a process not placed before it by the due process of law. Contempt proceedings are sui generic (Refer per COKER JSC in DEDUWA v. The STATE (1975) 1 ALL NLR 1 at 15). It cannot be smuggled into another proceedings through the back door. Suffice it to state here that Order 42 Rules 1 & 2 of the River State High Court (Civil Procedure) Rules of 1987 clearly provide for the procedure to be adopted in a contempt proceedings. This provision was totally contravened in this process.
Indeed, no responsible Court can stand by and watch the processes filed before it being abused with impunity. Herein lies the aptness of the dictum of NNA EMEGA AGU JSC cited by the learned trial judge and which is hereby reproduced for the case of reference.
“Every Court of law guides its power jealously and will not allow matters pending before it to be taken away by any of the parties before it, to be settled on its own way, extra judicially.”
see also per TOBI JCA (as he then was) in EZEGBU V. FATB (1992) 1 NWLR (pt.220) p.699 at 766, AVOP v. ATTORNEY GENERAL ENUGU (2000) 7 NWLR (Pt.664) at 260.
The disciplinary jurisdiction of the courts are not only inherent but are also well provided for in our statutes. Contempt is an offence punishable under section 6 of the Criminal Code Act, Section 133 of the Criminal Code Section 274 of the Criminal Procedure Act Section 6 of the Penal Code and Section 315 of the Criminal Procedure code. Above all, the Constitution vests the Courts with the inherent powers to uphold and protest their integrity by the provisions of section 6(6) of the 1999 Constitution.
In this respect, the powers of the Judge are enormous and the legislature in its wisdom, sets out a clear procedure to be followed in the invocation and exercise of particularly this powers of the judicial arm of the Government.
God almighty alone is the just and perfect Judge, all others are mere handmaids in the handmaids business of justice delivery. Left unguarded, the judicial powers reposed in the judge to punish for contempt could be applied to the detriment of the society at large. Of course, individuals in their large numbers make up the society.
A Judge is thus enjoined to exercise restraint in the use of its powers to punish for contempt. This restraint is further reinforced by the requirement to follow strictly, the procedure for contempt proceedings as noted in the decisions of the Supreme Court. Even in the circumstances of contempt in the face of the Court, a Judge is required to maintain his/her cool under fire.
“Belgore JSC (as he then was) counseled Judges in these terms:- The Judge must be hesitant to commit for contempt, he is always expected to hold his head in time of crisis, so as to objectively appraise the situation of the case before him in order to do justice. Nothing should be done in anger. To be a good Judge, it is necessary not only to have a thorough grasp of the law but also important is; a good sense of duty and recognition of necessity to be seen always above board. A Judge that bends the law to suit his whim and caprices will not command respect.
I have deliberately refrained from addressing the content of the claim before the trial court because no formal application for contempt had been initiated before the trial court. The Ruling of the 02/12/02 was based solely on the illegal proceedings of the said date and this appeal is decided strictly upon those proceedings. The disciplinary jurisdiction of the courts must not be devalued be reckless invocation.
However, in order to fulfill all righteousness, let us take a look at the motion the out come of which is said to have been pre-empted:
The said motion pending was couched in these terms:-
“a) An order of interlocutory injunction restraining the 1st – 5th Defendants/Respondents from functioning or carrying out the functions of executive members of the Rivers state council of Nigeria Civil service union or collecting monies meant for check off dues from the various ministries in Rivers State of parading themselves as such officers in their respective offices of State Chairman, Vice Chairman, Treasurer, Assistant Secretary and Auditor pending the Determination of this suit.
b) An order of interlocutory injunction restraining the 6th -8th Defendants from recognizing or acknowledging the 1st – 5th Defendant as (status quo) Officers or administrative council of the 8th Defendant or dealing with them as such officers pending the determination this suit.
c) An order of interlocutory injunction restraining the 6th-8th Defendants from appointing the 1st – 5th Defendants/Respondents as members of the Administrative Council of Rivers State Council of the 8th Defendants/Respondent or dealing with the said 1st – 5th Defendants/Respondent as members of administrative council purportedly installed by 7th Defendant/Respondent pending the determination of this” See pages 44 to 80 of the Record”.
None, of the reliefs sought relates to the holding of an election of what ever kind.
There was neither an interim order nor a judicial pronouncement of any nature prohibiting the conduct of an election by the Appellants concerned with pending the determination of the main suit nor the motion on Notice.
At most and as was held in the case of AVOP PLC v. THE ATTORNEY GENERAL OF ENUGU STATE (supra) a disrespect has been exhibited to the trial court. A court has no legal powers to arbitrarily clamp down any punishment for an alleged act of disrespect to it. Herein lies my attitude in this matter.
Assuming that the Appellants had actually pulled the carpet from off the feet of the Court, has the correct procedure been adopted by the trial Court?
No motion was filed nor argued before the court. Why the haste, what was the urgency in dealing with the perceived contempt?
Under its disciplinary jurisdiction, the trial court has the enormous power to judiciously and judicially pull down and declare as nugatory the entire election and indeed punish the contemnors. Why rush into it?
Upon this principle, I find the issue No 2 of the Appellant and the sole issue of the Respondent as complementing each other. While one questions the propriety of the procedure adopted, adopted, the other seeks to uphold the completed act. The procedure precedes the act. Thus, if the procedure is wrong, the act cannot stand; as in: you cannot place something on nothing and expect it to stand. It must collapse.
The trial Judge acted without jurisdiction and I am unable to sanction such illegality under the garb of disciplinary jurisdictional competence. This appeal succeeds.
The Ruling of the trial Court delivered on the 02/12/02 along with all its consequential orders is hereby set aside.
The main suit shall be remitted to the learned Chief Judge for assignment to another Judge for the hearing and determination of the substantive matter and of course any interlocutory matters that may arise in the proceedings. It is hereby so ordered.
A cost of N5,000.00 is awarded to the Appellants against the Respondents.
Other Citations: (2006)LCN/2014(CA)
