G.O. Boyo Vs The State (1970)
SOWEMIMO, J.S.C.
The appeal in this case was against the ruling made by Ighodaro, J. in the Benin High Court on a motion ex parte, in suite B/16 MnO granting leave to the Ag. Director of Public Prosecutions to serve notice of motion upon the appellant to show cause why he should not be committed for contempt of court.
The application was made by way of motion ex parte, and as the ruling indicated was said to have been made under Order 52, rule 2 of the English rules 1970 and by virtue of section 363 of the Criminal Procedure Law Cap. 43.The affidavit in support of the application was sworn to by the Ag. D. P. P. Mid-Western State.
As was pointed out during arguments on this appeal, the material contents of the affidavit which was purported to support the four complaints of contempt were absolutely hearsay, being dependent on annexures to the affidavit; these annexures were copies of affidavits purported to have been sworn to by certain individuals.
If for no other reason the learned trial judge should have refused to grant the application because the affidavit sworn to did not in law support it. It is relevant at this stage to refer to the relevant provision of O. 52, r. 2 (1967) Supreme Court Rules) which reads:-
“2. An application of such leave must be made ex parte to a Divisional Court, except in vacation when it may be made to a judge in Chambers and must be supported by a statement setting out the name and description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.”
In initiating proceedings of this nature, it has been the guided principle as set out in OSWALD on Contempt Committal and Attachment at page 17 that “it should always be borne in mind in considering and dealing with contempt of Court that it is an offence purely sui generis, and that its punishment involves, in most cases, an exceptional interference with the liberty of the subject, and that, by a method or process which would in no other case be permissible or even tolerated.
It is highly necessary, therefore, where the functions of the Court have to be exercised in a summary manner, that the judge in dealing with the alleged offence should not proceed otherwise than with great caution and only in cases where the administration of justice would be hampered by the delay in proceeding in the ordinary Courts of law; and that when any antecedent process has to be put in motion, every prescribed step and rule, however technical, should be carefully taken, observed, and insisted upon.
The jurisdiction should be exercised the more carefully in view of the fact that the defendant is usually reduced, to such a state of humility, in fear of more stern consequences if he shows any recalcitrancy, that he is either unable or unwilling to defend himself as he might otherwise have done.” Applying the above test, the court in granting leave under O. 52, r. 2 must satisfy itself that the application contains the following particulars:-
(i) That the application is supported by a statement setting out the name and description of the applicant;
(ii) The name, description and address of the person sought to be committed;
(iii) The grounds on which his committal is sought; and
(iv) An affidavit filed before the application was made to the court for leave verifying the facts relied on to support the grounds on (iii) above.
It is clear that the learned trial judge did not give consideration to the observance and compliance with these pre-requisites to granting of the leave sought. In fairness to the learned Acting Director of Public Prosecutions, who appeared for the respondent, he agreed that the affidavit which was filed along with the motion was definitely not in compliance with the rule and therefore the order made by Ighodaro, J. could not be said to have been made under 0.52, r.2. That by itself should have been enough to dispose of this appeal. The learned trial judge in his ruling after setting out some of the requirements necessary to support the application stated inter alia:
“The application before me in support by an affidavit of 23 paragraphs filed by the Acting Director of Public Prosecutions and verified by the affidavits and attachements of Mr Justice Atake, Boyo’s letter No. CV. 135, addressed to the Chief Justice, Mid-West State, the affidavits of Mr w. G. Egbe, Mr O. N. Rewane and G. N. Peregha, and a copy of “the letter written to Boyo asking him to tender an apology”.
It is evident that all the annexures which the learned trial judge has made reference to were not affidavits sworn to by the different individuals mentioned with the purpose of verifying the grounds on which application was made and when the annexures are read along with the only affidavit sworn to by the Acting Director of Public Prosecutions, they could be no more than secondary evidence, being copies of purported affidavits and therefore not legal evidence as provided for by law.
During the hearing of this appeal, two grounds were argued. Apart from other considerations, it is enough to say that since the order purported to be made under O. 52, r. 2 was made without the learned judge first satisfying himself that all conditions precedent to making the application had been fulfilled, the order made by him must be set aside and is hereby set aside.
The appeal is therefore allowed.
Other Citation: (1970) LCN/1749(SC)
