IS CONTEMPT OF COURT AN EXCEPTION?

  By YAHAYA MOSHOOD KOLAWOLE

Chapter 4 of the constitution of the Federal Republic of Nigeria is a salient one that provides for Fundamental human rights. It is an indelible chapter in the Nigerian Constitution just as the Fundamental Human Rights is indelible from other constitutions of the world.  The importance and delicacy of chapter 4 are deducible from the provision of Section 9 of the constitution which provides for alteration of any part of the constitution.

Section 9(2) CFRN 1999 provides to the effect that any act of the National Assembly for the alteration of any part of the constitution (not being the alteration of Section 8) shall not be passed except by a vote of a two-thirds majority of the members of that house and approved by a resolution of the Houses of assembly of two-third of all states. However, the drafters of the constitution realized and understood the importance of chapter 4, and so drafted subsection 3 of section 9 to the effect that any action for the purpose of altering Section 8 or chapter 4 shall not be passed unless it is approved by a vote of not less than the four-fifths majority of all the members of each house and a resolution of the Houses of Assembly of two-third of all states.

The provision of Section 36 of the Nigerian constitution is a very laudable section in Chapter 4 of the constitution, which generally provides for the right to a fair hearing. Section 36, which has 12 subsections, provides for rules which the court must be guided by while conducting a trial. A failure to comply with these rules will render the proceedings null and void. The cases of Buhari v Yusuf (2003) 6SC Pt ii, FCSC v Laoye (1989)  2 NWLR Pt 106 Pg 652 SC and Adigun v A. G Oyo State (1987) 1 NWLR Pt53 Pg 678 SC are apt on fair hearing.

Subsection 12 of Section 36 of the 1999 constitution which is the last subsection of this section provides thus;

Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty, therefore, is prescribed in a written law, and in this subsection, a written law refers to an act of the National Assembly or a law of a state, any subsidiary legislation or instrument under the provisions of law.

This provision has been interpreted by the courts in the cases of Fawehimi v State (1990) 1 NWLR Pt 127, Pg 486 CA, Tofi v Uba (1987) 2 NWLR Pt 62, Pg 707 CA, Sele v State (1993) 1 NWLR, Pt 269, Pg 276 SC. The case of Aoko v Fagbemi (1961) 2 All NWLR 400 is a locus classiccus on the interpretation of this Section.  In this case, the accused was charged, tried and convicted for adultery by a customary court in Southern Nigeria for the offence of ‘’adultery”. The High Court on appeal quashed the decision of the customary court on the basis that Adultery was and is not a crime under the Criminal Code which is the written law applicable to the Southern part of Nigeria where the crime was committed.

Flowing from the above, there is no two way to it that, a person cannot be punished for an offence unknown to law. Following this is that if a person commits an offence, he should be punished in accordance with the stated punishment in the law that created the crime. This principle compliments the maxim NULLUM CRIMEN SEN LEGE which means that “A man must be punished only in accordance with law”. Does this provision also relate to contempt of the court? This write-up seeks to critically look into this issue.

It has been the order of the day that, in the quest to maintain the sanctity of the court and deter contemnors from contempt, judges melt out different types of punishment to contemnors. Some of the punishments are corporal (which is unknown to Nigerian Criminal Law), others are degrading. These punishments include “frog-jump”,  raising one’s hands up, grass-cutting and toilet washing, among others. Some punishments have been described as being ridiculous and many have said that the courts abuse judicial power while some have said that their acts are unconstitutional. This write-up seeks to shed some light on this.

In Nigeria, the laws on crimes, ingredients and punishment thereto are contained in the Criminal Code (applicable in Southern Nigeria), Penal Code (applicable in Northern Nigeria) and other instruments and subsidiary legislation as provided by subsection 12 of Section 36 of the 1999 constitution.

Section 133 subsection 1-9 of the Criminal Code defines what constitutes Contempt of court to include a number of things which include causing obstruction or destruction in the course of a judicial proceeding, a commission of any act of disrespect to any judicial proceeding, acting against the direction of a court in a judicial proceeding and failure to attend having been called upon to give evidence, among others.

Furthermore, the court of appeal, per ALAGOA, JCA, In the case of Osude Brothers (Nig.) Ltd v Uvieghara (2007) LPELR 8695(CA) defined contempt as an offence against the dignity of the court. In a wider connotation, it covers such vices inter alia as disrespect to the court, disobedience of court order and ridicule and abuse of the court.

According to the Dictionary of English law, contempt of court is where a person who is a party to a proceeding in a superior court of record fails to comply with an order made against him or an undertaking given by him or where a person, whether a party to a proceeding or not does any act which may tend to hinder the course of justice or show disrespect to court’s authority.

According to the Blacks Law Dictionary (Second Pocket Edition), Contempt is defined as Conduct that defies the authority or dignity of a court or legislature because such conduct interferes with the administration of justice; it is punishable usually by fine or imprisonment. A person who commits the offence of contempt is a contemnor.

Contempt of the court could be civil or criminal. According to Black's law, Civil law is the failure to obey a court order that was issued for another party’s benefit. A civil contempt proceeding is coercive or remedial in nature. The usual sanction is to confine the contemnor until he or she complies with the court order. Criminal contempt is an act that obstructs justice or attacks the integrity of the court.

Contempt could also be direct or indirect. When it is direct, it is committed in the immediate vicinity of a court (contempt in facie); especially contempt committed in the Judge’s presence. Indirect contempt is contempt that is committed outside of court as when a party disobeys a court order (contempt ex facie).

To have a clear understanding of the term Contempt of Court, recourse will be made to the explanation of Contempt given by LORD TUCKER, in the case of Izuora v The Queen (1953) 13WACA 313 Pg 346, according to him;

“It is not every act of discourtesy to the court by counsel that amounts to contempt, nor any conduct which involves a breach by counsel of his duty to clients.”

This explanation is in tandem with the provision of Section 36 subsection 12. Contempt is only an offence because it is provided by written law and its penalty stated therein and not just because it is morally inappropriate. Although the law may have been gotten from morals, law at any time should not be equated with morals.

Section 133 of the Criminal Code which created the offence of contempt provided for the penalty to the offence which is a liability to imprisonment for three months. The different court rules also contain provisions for contempt and how the court will deal with it. It is important to also look into these rules to ascertain how each court Rule defines contempt and its punishment.

Order 20 Rule 9 of Federal High Court civil procedure Rules provides that; Any Person willfully disobeying any order requiring his attendance for the purpose of being examined or producing any document shall be in Contempt of court and maybe dealt with accordingly (italics for emphasis). It is of grave importance to note that, the word accordingly as used in this provision means according to the law regulating such offence. Under Order 35 of the same court rules, there is a provision for punishment of contempt by order of committal. Committal is the act of officially consigning a person to confinement.

Under the Lagos State civil procedure rules, Order 32 Rule 10 is a reproduction of Order 20 Rule 9 of Federal High Court civil procedure Rules.

It is pertinent to note herein that the effects of the laws afore produced are applicable to criminal contempt as created under the criminal code. However, the rule applicable to civil contempt is as contained under Order 52 Rule 8 Kwara State High Court Civil Procedure Rules 2006 which provides for liability in fine for a particular type of civil contempt.

In all of these rules, there is no provision to the effect that the court may exercise discretion in melting the punishment for contempt. There is also no provision for corporal punishment. Contempt, like armed robbery, is an offence under the criminal code to which the punishment thereto is attached. If the punishment stipulated on a convict of armed robbery is sentenced to death and the courts have duly guided and jealously guarded that, the offence of contempt should also be punished by its defined penalty.

Conclusively, contempt of court is not an exception to the provision of subsection 12 of section 36 CFRN. Hence, the Judges who are the masters in the temple of law and the protectors of law should also guard modestly and follow religiously the provision of written law relating to contempt. This is based on the fact that the unwritten Common law on contempt of the court which was preserved by Section 20 subsection 10 of the 1963 Constitution no longer applies in Nigeria having regards to Section 36 subsection 12 of the 1999 constitution and Section 133 of the Criminal code. Acting contrary to the provisions of the Fons Et Origo will amount to unconstitutionality and abuse of judicial power by the most sacred institution (the courts). Although the interpretation of laws is the duty of the court but Nemo Judex in Causa sua (one cannot be a judge in his own case).