Aontempt as a legal word has existed for thousands of years, traceable to the Mosaic Law. Judiciary and contempt exist side by side because contempt is a useful tool in the smooth functioning of the judiciary. However, contempt is not used in courts only. It could be is applied elsewhere. But what is contempt?
“Contempt may be defined as disobedience or disrespect to a lawful authority of House of Parliament or Court” (Shorter Oxford English Dictionary 3rd ed 380).
Contempt of court is anything done or published writing, calculated to bring a court or judge into contempt; to lower his dignity. See Agbachom vs RTAC 1992 5 NWLR (Pt 241) 366 where it was held:
Contempt of court is anything done or writing published calculated to bring a court or judge of court into contempt or to lower his dignity.
Contempt is also anything calculated to obstruct or interfere with due administration of justice (Agbachom vs RTAC supra). A contemnor is a person who commits contempt [Chief Odu vs Chief Jolaosa 2005 All FWLR (Pt 262) 428]. Before an act or omission is deemed contempt it must be done with intention or intentionally [Basil Okoma vs Sunday Udoh 2002 1 NWLR (Pt 748) 438.]
Anything which scandalises or is calculated to bring a court into disrepute is contempt. See Mobil Oil vs S. T. Assan 1995 8 NWLR (Pt 412) 129. The question of motive is irrelevant in contempt cases [R vs Poplar Borough Council (No.2) 1922 1 K.B 95].
The power to punish for contempt is inherent in all courts; courts of first instance or appellate courts [Unipetrol vs Edo State Board of Internal Revenue 2001 10 NWLR (Pt 720) 169]. The power to punish for contempt is not for personal protection of the judge but that of the public [R vs Davidson 1821 4B and Ald 329]. Contempt of court is used from a sense of duty or under pressure of public necessity [Mcleod vs St Aubyn 1899 A.C. 549].
FUNCTIONS OF CONTEMPT
First, contempt preserves dignity and respect of courts. See Chapman vs Honig 1963 2 Q.B 502 at 518 – “Those pages show that for the purpose of deciding whether a contempt of court has been committed in a case of this kind, the determining factor is not harm done to the individual but harm done to the future administration of justice.”
Secondly, contempt ensures fair trial by ensuring dignity of court and reputation as an institution. See Jennison vs Baker 1972 1 All ELR 997 at 1001 – “The power exists to ensure that justice shall be done. And solely to this end it prohibits acts and words tending to obstruct the administration of justice.” In Chief Odu vs Chief Jolaoso 2005 All FWLR (Pt 262) 428, it was opined by court that: “By its nature, punishment for contempt is to punish an offender for an act that somehow affects the dignity of the court in the administration of justice.” All courts have innate power to punish for contempt. See Chief Odu vs Chief Jolaoso supra, where it was held: “…it is an inherent power in that it is innate to the court once it is established.”
Thirdly, contempt exists as a useful tool in the administration of justice. In Fame Publications vs Encomium Ventures 2000 8 NWLR (Pt. 667) 105, it was held: “It must be remembered that the principle enshrined in the law of contempt are to uphold and ensure the effective administration of justice.” Any act of disobedience to court order is checked by contempt. See Russsell vs East Anglia Railway 1850 20 Ch. 257 where it was held: “it is an established rule that is not open to a party to question any or process of the court by disobedience and it is not inconsistent with the general rule that the court in administrating punishment for disobedience to an order attendant to all facts of the case…”
Fourth is that contempt checks undue interference in the administration of justice. It was clearly opined in Hermone vs Smith 1887 15 Ch.D 449 at 455 as follows: “The object of the disciple enforced by the court in case of contempt of court is not to vindicate the dignity of the court or the person of the judge, but to prevent undue interference with the administration of justice.”
Last but not the least – contempt maintains order and decorum in a court, thus any person who misbehaves in a court can be checkmated by court. However, it is not every disobedience to court that will amount to contempt Awosanyo vs Board of Custom L.C.N 117 at 127.
TYPES OF CONTEMPT
There are various types of contempt. It was thus held in Rt. Hon. Azikwe vs FEDECO LCN (Law of Contempt in Nigeria by Gani Fawehinmi LCN) 285 at 287 that there are 2 types of contempt as follows:
Contempt could either be in the face of the court (infacie curiae) or outside the court (exfacie curiae).
However, in St. James Evening Post Case 1942 Atk 469, it was held per His Lordship Hardwicke L.J. that there are 3 types of contempt.
There are three different sort of contempt. One kind of contempt is scandalising the court itself. There may be likewise contempt of this court, in abusing parties who are concerned in the cause, there may be also a contempt of this court, in prejudicing mankind against another person before their cause is heard.
Historically contempt is classified as criminal contempt or civil contempt. The court in Fawehinmi vs A.G.F. 1990 5 NWLR (Pt 148) 42 at 83 held as follows:
Traditionally contempt is classified into either:
a) criminal contempt
b) civil contempt
Whether contempt is infacie curiae, exfacie curiae, criminal contempt or civil contempt, they all share one characteristic; they involve interference in the due administration of justice. A.G.vs Laveller Magazine Ltd 1979 A.C. 440 at 449 held as follows:
They all share common characteristics; they involve interference with due administration of justice either in a particular case or more generally as a continued process.
CONTEMPT IN FACIE CURIAE
It is a contempt committed inside a court hall or precincts of a court in Re Olu Onagoruwa LCN 270 where it was held as follows:
The common characteristics of contempt infacie curiae is that the act of contempt must take place near the court room or in the precincts.
Contempt in facie curiae has no closed category it is far and wide; Rt. Hon. Azikwe vs FEDECO supra. Contempt infacie curiae has no close category and examples of such instances are many. But broadly, it is words spoken or act done within the precincts of the court which obstruct or interferes with the due administration of justice or is calculated to do so.
Contempt infacie curiae occurs in the presence of the judge and his staff, the judge is an eye witness to everything Morris vs Crown Court 1970 2 Q.B. 114 at 123 as follows:
He had before him all the necessary information about the circumstances of the offence, because it had taken place before his very eyes.
Because every event occurred in the presence of a judge, the judge needs no further evidence or witness to prove it, the judge will put the contemnor in the dock and ask him to show reason why he should not be punished instantly. See Okonofua Omoijage vs Umesu Umoru 2000 FWLR (Pt 29) 2401 at 2421 where it was held:
The procedure for trial in contempt infacie curiae is as follows;
1) putting the alleged contemnor in the accused box
2) explaining to him what he did before the court
3) asking to show cause why he must not be punished.
The procedure to punish for contempt infacie curiae has been analysed in Contempt The Law and Practice by Justice U.B. Bwala page 70.
CONTEMPT EXFACIE CURIAE
This is contempt committed outside a court hall or precincts of a court. It is described in Rt. Hon. Azikwe vs FEDECO supra as follows:
For contempt exfacie curiae it may be described as words spoken or otherwise published or acts done outside court which are intended or likely to interfere with or obstruct the fair administration of justice.
Similar opinion was expressed in Fawehinmi vs FEDECO supra as follows:
The sum total of this judgment is that the offence of contempt of court can be divided into two broad based category viz-a-viz:
(1) Those committed in the face of the court known as infacie curiae
(2) Those committed outside the court hall or premises otherwise said to be exfacie curiae.
Contempt exfacie curiae has been defined in Re OluOnagoruwa supra as follows…exfacie curiae it may be described as words spoken or otherwise published or act done outside court which are intended or likely to interfere with or obstructs the fair administration of justice.
Because contempt exfacie curiae did not occur in the presence of a judge, trial for it follows regular criminal trial, there must be an accuser Rt. Hon. Azikwe vs FEDECO supra.
Civil contempt is usually disobedience to a judgment of court, order or injunction of court. This is because all orders of court must be obeyed [Ngene vs Okuruket 2014 11 NWLR (Pt 1417) 147]. Civil contempt bears the same characteristics of criminal contempt [Phonographic vs Amusement Caterers 1963 3 All ELR 493]. They both lower the dignity of the court. Civil contempt does no less harm than criminal contempt. See American Security System vs Engene Peterson LCN 79; Scott vs Scott 1913 A.C. 417.
It is acts or words which obstructs or tend to obstruct or interfere in the administration of justice/ See Afe Babalola vs FEDECO 143 at 151-2 where the court described criminal contempt as follows:
However, it is perhaps necessary to say that generally speaking criminal contempt consist of words or acts, which obstructs or tend to obstruct or interfere with the administration of justice.
Criminal contempt takes variety of forms but all contempt share common characteristic of interfering with the administration of justice [Okonofua Omoijahe vs Uwesu Umoru 2000 FWLR (Pt 29) 2401at 2417]. Criminal contempt involves some contumacious act, “…criminal contempt involves some disrespectful contumacious conduct towards the court” – Vines vs State 24 S.E. 2d 864.
Anything done to prejudice a judge or jury is a criminal contempt as it has the effect to pervert the cause of justice – Oshea vs Oshea 1890 15 P.D. 59. In criminal contempt a court can suo motu issue bench warrant for the arrest of the contemnor; which power is not available in civil contempt – Abdullah vs Military Governor Lagos State 1989 1 NWLR (Pt 97) 356. Criminal contempt could arise from civil or criminal matter before a court.
The proof required in contempt of any type whether civil or criminal, infacie curiae or exfacie curiae is proof beyond reasonable doubt as required by S35 of the Constitution. In Agbachom vs The State 1971 1 U.I.L.R 111 at 116 it was clearly held as follows:
To our mind since contempt of court is an offence of a criminal character it must be proved beyond reasonable doubt.
The burden of proving contempt is on an applicant who initiates the contempt proceedings as he becomes the prosecutor and in law it is the duty of a prosecutor to prove his case beyond reasonable doubt. See Onagoruwa vs Adeniji 1993 5 NWLR (Pt 293) 317 at 325 where it was held as follows:
Contempt being criminal charge the burden of proving it is on the applicant and he must prove the allegations contained in the affidavit in support of the application for contempt beyond reasonable doubt.
Courts are generally lenient to a contemnor who committed the contempt unintentionally, gives credible explanation and apologies to the Court – Alh. Usman vsDurojaiye LCN 263 at 268.
All contempts are criminal in nature as it affects the liberty of subjects so it must be proved beyond reasonable doubt. In Re Brambleve 1963 3 WLR 699 at 700, it was held as follows:
Where a person was charged with contempt of court, which was an offence of a criminal nature involving the liberty of the subject, his guilt must be proved beyond reasonable doubt.
Even in summary proceedings in contempt cases, the respondents are presumed innocent so their guilt must be proved beyond reasonable doubt.
Contempt proceedings for disobedience to a court order is quasi criminal and must be proved beyond reasonable doubt. In Oba Alisinloye vs Oba Oyediran 2000 FWLR (Pt 3) 479 at 486, it was held as follows:
It must be noted in contempt proceedings for disobedience of court order, the proceedings are quasi criminal and the standard of proof is not on the balance of probabilities but proof beyond reasonable doubt. The liberty of person(s) being at stake.
Where contempt proceedings are for disobedience to court order specific instances of disobedience to court order must be proved beyond reasonable doubt [Alh.Chief Faesan vs Coast Hotel 2004 All FWLR (Pt. 218) 964]. Contempt proceedings must be proved with necessary strictness [Re Brambleve supra]. Though contempt proceedings must be proved with necessary strictness minor or trivial defects are not fatal to its prosecution [Lawrence Okwueze vs Emmanuel Ojiofor 2001 FWLR (Pt. 48) 1277 at 1290].
Like all criminal trials the charge against a contemnor must be clearly stated and he is given an opportunity to answer it [Churchman vs Shop Steward Committee 1972 All E.L.R. 603 at 607]. The presumption in a criminal trial that an accused person is presumed to be innocent unless proved guilty is also applicable to contempt proceedings [Re Brambleve supra]. All doubts in law are resolved in favour of an accused person [John Okonji vs The State 1987 3 S.C. 175].
Where an article published is capable of two different interpretations contempt proceedings cannot be maintained against a contemnor [Agbachom vs The State 1991 1 U.I.L.R 111 at 116.]
Proof of disobedience to court is done as follows – The order of a court could be contained in a judgment, ruling, injunction, prohibition, undertaking, etc [Knight vs. Clifton 1971 2 All E.L.R. 378 at 381]. The procedure to prove disobedience of court order are clearly analysed in Stericon vs Downs LCN 9 as follows:
To establish contempt of breach of an order of injunction the following elements must be established namely:-
(1) the terms of the injunction must be clear and unambiguous,
(2) it must be proved that the defence has had proper
notice of the terms of injunction,
(3) there must be a positive proof that the terms of the injunction have been broken.
The elements of proof of disobedience were considered in Ephraim Okeke vs A. G. Anambra State 1997 9 NWLR (Pt 519) 123 at 140 as follows:
a) there must be failure of respondent to obey the injunctive orders set out in the drawn order,
b) there must be at least two clear days between the issuance of form 48 with the enrolled order endorsed thereon and the issuance of form 49, and
c) the service of form 49 like that of form 48 must be personal.
There must be clear evidence of disobedience to court order and personal service on the contemnor [Ojomo vs Ijeh 1987 4 NWLR (Pt 64) 216 at 219]. Proof of contempt is that it has to be proved to the hilt – Ephraim Okeke vs A.G. Anambra State supra.
Contempt is resorted to by a court to further the interest of justice – Mcleod vs St Anbyu 1899 A.C. 549 at 561. Contempt is not held to vindicate the judge’s personality but to preserve and protect the authority of a court -Fawehinmi vs The State 1990 5 NWLR (Pt. 148) 42 at 48. Power to punish must not be used by a court arbitrarily [Awobokun vs Toun 1968 NMLR 289 at 294].
CONTEMPT OF PARLIAMENT
Parliament is a sovereign, legal entity which is governed by its own laws. Parliament has the power to commit one for contempt. This is necessary to maintain order and decorum as well to enable it summon any person or authority to appear before it. Sections 26 and 27 of the Legislative House (Powers and Privileges) Law Cap 62 for the Northern States allows each State House of Assembly to punish for contempt. Section 27(2) of the law allows the House to suspend a member who commits contempt of the House. Regarding contempt committed by a person who is not a member of the House, he/she can be prohibited from entering the House for a specified period [S 27(3)] of the Law. The procedure to be followed has been analysed Law and Constitutional and Administrative Law 6th edition by O. Hood Philips, Paul Jackson P 244-248.
The procedure for committed contempt under the House of Chiefs in Ghana has been analysed in Republic vs Kwafromoah 1990 5 WASC 52 at 63 as follows:
Where a person commit contempt of the House of Chiefs under which judicial committee has been established, that committee shall certify the contempt to the High Court which shall after inquiring punish if guilty or acquitted if not.
CONTEMPT OF COURT MARTIAL
Court martial is a judicial body which determines criminal acts by members of the armed forces and sometimes civilians who may not be members of the armed forces. It performs judicial functions so it has powers to punish for contempt which is necessary to enable Court Martial to call witnesses and have exhibits produced before it.
The power to invite witnesses and tender exhibits before a Court-Martial is contained in S.145 of the Armed Forces Act 1994. What amounts to contempt before a Court-Martial is contained in S.146 of the Act. When a person not subject to the Act commits a contemptuous act he will be referred to a High Court by the President of the Court-Martial. Sections 145 and 146 of the Act state as follows:
145 (1) A person, whether subject to this Act or not, who is required to give evidence before a court-martial may, be summoned by notice in writing given by order of the convening officer or the court.
(2) A person not subject to this Act who attends a court martial in pursuance of a notice under subsection (1) of this section shall be entitled to receive such expenses of his attendance as may be prescribed.
146 (1) Where in Nigeria a person other than a person subject to service law under this Act:-
(a) having been duly summoned to attend as a witness before a court-martial, fails to comply with the summons; or
(b) refuses to swear an oath when duly required by a court-marital to do so; or
(c) refuses to produce a document in his custody or under his control which a court-martial has lawfully required him to produce; or
(d) when a witness, refuses to answer a question which a court-martial has lawfully required him to answer; or
(e) wilfully insults a person, being a member of a court-martial or a witness or any other person whose duty it is to attend on or before a court-martial, while that person is acting as a member of the court-martial or is so attending, or wilfully insults that person while that person is going to or returning from the proceedings of a court-martial; or
(j) wilfully interrupts the proceedings of a court-martial or otherwise misbehaves before the court-martial; or
(g) does any other thing which would, if the court-martial had been a court of law having power to commit for contempt, have been contempt of that court; the President of the court-martial may certify the offence of that person under his hand to the High Court having jurisdiction in that part of Nigeria where the offence is alleged to have been committed or in the place where the offender is to be found.
(2) The High Court to which an offence is certified under subsection (1) of this section may inquire into the alleged offence and after hearing witnesses (if any) and taking any statement that may be offered in defence, punish or take any steps for the punishment of that person in like manner as if he had been guilty of contempt of that High Court.
(3) A person shall not be dealt with under this section in respect of failure to comply with a summons requiring him to attend as a witness before a court-martial unless any expenses in respect of his attendance have been paid or tendered.
(4) For the purposes of subsection (3) of this section:
(a) the tender of a warrant or voucher entitling a person to travel shall be deemed to constitute tender of his expenses in respect of the travelling authorized by the warrant or voucher; or
(b) the tender of a written undertaking on behalf of the convening officer to defray at the trial any other expenses to which the person may be entitled shall be deemed to constitute tender of those expenses.
(5) In this section, “court-martial” means a court-martial held under service law.
As a judicial body it is necessary if its decisions and orders are to be carried out. As we have seen above, a Court Martial does not have the power to punish a person who is not subject to the Armed Forces Act 1994 for contempt of the Court Martial. The President of the Court Martial shall refer such person to a regular High Court – The King vs. The Editor of the Daily Mail, Exparte Farmsworth 1921 1 K.B 733. In this case the applicant was tried by a Court Martial, found guilty and imprisoned. Before the conviction was confirmed by the confirming body, the Daily Mail published statements of the Court Martial. The editor of the Daily Mail was brought to Court to show cause why he must not be committed for contempt. The Court held inter alia as follows:
A Court Martial has no inherent powers from statute to protect itself by such proceedings. Where contempt of a court is committed against a Court Martial by a person not subject to Court law, the Kings Bench Division has inherent jurisdiction on the application of the party to the proceedings before the Court Martial who is aggrieved by the contempt to punish the person guilty of the contempt.
CONTEMPT OF TRIBUNAL
Tribunals are set up from time to time to determine certain matters that may arise but not taken to court. A tribunal could be judicial or quasi judicial depending upon the powers conferred upon a tribunal. Because tribunals are judicial or quasi they invite witnesses, hear evidence and admit exhibits. Tribunals have been conferred with the power to punish for contempt.
Section 12 of the Tribunals of Inquiry Act Cap T21 has classified any act of disrespect, insult, threat offered to the Tribunal or its members as acts of contempt. Publications done or calculated to prejudice an inquiry or proceedings is an act of contempt. No person can be found guilty of contempt without being given opportunity to be heard S 12 (2) of the Act.
The tribunal can impose a fine of Twenty Naira (N20) only and is recoverable as a fine imposed by a magistrate S11 (1) (b). A magistrate can impose a fine of N200 or imprisonment for three months for summary trial for contempt of the tribunal S 11 (1) (a). There is a right of appeal to High Court by a convicted person. Sections 11 and 12 of the Tribunals of Inquiry Act read as follows:
11(1) Any person who commits an act of contempt whether the act is or is not contempt in the presence of the members sitting in an inquiry, shall be liable to:-
(a) on summary conviction before a court of competent jurisdiction to a fine of N200 or to imprisonment for a term of three months;
(b) on the order of the tribunal to a fine of N20, such fine being recoverable in the same manner as if it were imposed by a magistrate.
(2) An appeal shall lie to the High Court within whose area of jurisdiction the act concerned was committed against any order made by a tribunal under subsection (1) (b) of this section as if such order were a decision of a magistrate against which an appeal lay.
(1) Where an act of contempt is alleged to have been committed but not in the presence of the members sitting in an inquiry, the tribunal may by summons in Form C or to the like effect in the Schedule to this Act require the offender to appear before the tribunal, at a time and place specified in the summons, to show cause why he should not be judged to have committed an act of contempt and be dealt with accordingly. Summons issued under this subsection shall be served by the police or by such other person as the tribunal may direct.
(2) If any person who has been summoned in accordance with subsection (3) of this section fails or refuses or neglects to attend at the time and place specified in the summons, the tribunal may issue a warrant in Form D or to like effect in the Schedule to this Act to compel the attendance of such person and order such person to pay all costs which may have been occasioned in compelling his attendance or by his failure or refusal or neglect to obey the summons, and may in addition fine such person a sum of N20, such costs and fine to be recoverable in the same manner as if they were imposed by a magistrate’s court.
12 (1) For the purposes of section 11 of this Act, the following shall be deemed to be an act of contempt:-
(a) any act of disrespect and any insult or threat offered to a tribunal or any member thereof while sitting in a tribunal;
(b) any act of disrespect and any insult or threat offered to a member at any other time and place on account of his proceedings in his capacity as a member;
(c) Any publication calculated to prejudice an inquiry or any proceedings therein.
(2) No punishment for contempt shall be imposed by a tribunal until the members shall have heard the offender in his defence.
CONTEMPT OF COMMISSION OF INQUIRY
A government of a state has the power to set up a commission of inquiry to look into the affairs of any person, department of government, institutions or any other body. The composition and powers of any commission of inquiry shall be as set out in the instrument setting up the commission; see section 1 of the Commissions of Inquiry Law for the Northern States. The commission has been conferred with powers to call witnesses, admit exhibits etc., see section 7 of the Law. The commission is at least quasi judicial. Being quasi judicial the commission has been conferred with powers to punish for contempt. See section 15 of the Law. Section 15 reads as follows:
15. The following shall be deemed to be an act of contempt within the meaning of this Law:-
(a) any act of disrespect and any insult or threat offered to the commissioners or any of them while sitting in commission;
(b) any act of disrespect and any insult or threat offered to a commissioner at any other time and place on account of his proceedings in his capacity as a commissioner.
Any person who commits contempt whether in the presence of the commissioner or not shall be liable upon summary conviction before a competent court of jurisdiction to a fine of two hundred Naira. Appeal lies to a High Court. The competent court referred to above means a magistrate court, customary court or area courts. See sections 16 and 17 of the Law.
––Hon. Justice Usman Bukar Bwala is a retired judge of Borno State High Court.
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