Introduction
Justice and courts do not take such conduct with levity. The Supreme Court of Nigeria in the case of OMOIJAHE V. UMORU did not mince words when it held coram Mohammed, J.S.C. thus: “It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.”
Although, the powers of Court to render punish for contempt, be it contempt in facie curiae (criminal contempt) or ex facie curiae (civil contempt) is inherent in all the Court, however the point of focus in this paper, is the process and procedure for committal of a person who defies lawful Orders Court under the Federal and States High Court Civil Procedure Rules and Judgment{ Enforcement } Rules made pursuant to Sheriffs and Civil Process Act, 2004. It should be noted that when a contempt of Court committed whether in facie curiae or ex facie curiae, it is the duty of court to deal with it in order to secure and protect the authority of the Court.
Procedure For Contempt In Facie Curiae
The first type of contempt for which a committal proceeding can be set in motion, is contempt in facie curiae. It is a contempt which is committed coram judice or in the face of the Court. It may arise as a result of disrespectful conduct or comments made in the Court room by a contemnor when proceedings are going on and which is seen and heard by the judge, which undermines the dignity of the Court or which interferes with the administration of justice. In other words, it may be conduct which obstructs or disrupts proceedings of Court.
Under this class of contempt, there is no need to call for evidence of what transpired, because it happened in the immediate view of the Court. The Judge saw and heard the contemnor commit what the Court considers contemptuous, and so punishment is meted out summarily, after the contemnor is asked to show cause why he should not be sent to prison for his contempt.
It must be pointed out that for the purpose of a court rendering punishment for contempt under this category, a distinction must be drawn between conduct which affect the dignity of the Court or which tend to bring the administration justice to disrepute and conduct which merely annoys the judge. The distinction is necessary so that the power of the Court to give punishment for contempt in protection dignity of the Court is not abused. This point is best explained in words of Lord Tucker of Privy Council, in JOSEPH IZUORA V THE QUEEN where he observed as follows: “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 his client. In the present case the appellant’s conduct was clearly discourteous, it may have been a breach of the rules and it may perhaps have been a dereliction of his duty to his client but in their Lordship’s opinion it cannot properly be placed over the line that divides mere discourtesy from contempt.”
The Supreme Court of Nigeria in the case of INEC & ANOR V OGUEBEGO & ORS, whilst considering the instance when words or actions used in the face of the Court or in the course of proceedings be deemed contemptuous, held as follows: “For words or actions used in the face of the Court, or in the course of proceedings, to be contempt, they must be such as would interfere with the course of justice. A superior Court of record has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. It must once again be emphasised that the summary power of punishing for contempt should however, be used sparingly and only in serious cases….”
It is imperative to point out that one of the examples of situations of contempt in facie curiae in Court is the communication between a Judge and a lawyer in the Court Room. A textbook case is seen in the case of ADEYEMI CANDID-JOHNSON V MRS ESTHER EDIGI, where an Acting Chief Magistrate went beyond its powers and cited a counsel for contempt because the counsel insisted that his submissions before the Court should be placed on record and also refused to answer a question which was put to him by the Court. The Magistrate considered the counsel’s conduct to be rude and contemptuous and ordered that he should be detained. The Court of Appeal, while condemning the act of the Magistrate held:
“Apparently, when tempers rose rather meteorically, the respondent, exacerbated by the situation, unleashed this incisive question: “When did you leave the law school? The response, going by the record, was equally unrelenting: “I will refuse to answer that question in the rudest manner.”
It was the refusal to answer this question, according to the record, that broke the camel’s back, and led to the detention of the appellant for contempt of court. It was unfortunate, to say the least, for the respondent, according to the records, to have taken leave of her exalted bench, invited counsel to extra-judicial dialogue, and thereafter descended into the arena of vituperative conflict with him”.
The law of contempt only exists to uphold and ensure effective administration of justice and not for personal glory as we have seen in the cited above. The power of the Court to punish for contempt must always be exercised to secure and protect the authority of the Court. In fact, the powers should be sparingly exercised and only in serious cases.
Procedure For Contempt Ex Facie Curiae
The second type of contempt is contempt ex facie curiae which means contempt committed outside the Court (Coram non judice) and therefore out of sight and hearing of the Judge. It arises from disobedience and obstruction of lawful orders of Court. When a Court makes an order directing a person to carry out certain act or to refrain from a particular conduct, failure to abide by the directive is a serious breach of the Court’s jurisdiction and may be found to be contemptuous. Contempt ex facie curiae is a serious offence which interferes with the powers of the Court to administer justice and the Court is entitled to invoke its innate powers to punish an erring party by committing the person to prison.
The procedure for punishment for this category contempt is very strict and it is governed by the provisions of Section 72 of the Sheriffs and Civil Process Act, LFN 2004 (“SCPA”) and Order 9 Rule 13 of Judgment Enforcement Rules. For ease of reference, Section 72 of the SPCA provides as follows.
“ If any person refuses or neglects to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in Paragraph (f) of section 66 of this Act, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.” [Emphasis mine]
A summary of the applicable Law and rules of Court as regards proceedings for contempt ex facie curiae s divided into two important stages as follows:
Stage I– when a positive of Order of Court is flouted, the first thing to do is to make an application to the Registrar of the Court for Issuance of Form 48 which would have a copy of the relevant Order endorsed at the back of the Form. Form 48 is a notice of consequence of disobedience of Court Order. The Form 48, endorsed with Court Order, must be signed by the Registrar of the Court and the person who wants to enforce the Court Order must ensure that the form is personally served on the alleged contemnor (party in contempt) by the Court’s bailiff who must file proof service in the Court’s file. The essence of personal service of form 48 is to give the contemnor the opportunity to retrace his steps and avoid the Court’s sanction.
The Court, however, is empowered to dispense with service of the Form 48 and 49 on the contemnor, if the Court is satisfied that he has adequate notice of the Order either by being present when the Order was made or by being notified of the terms of the Order and deliberately refused to comply with same.
Stage II– If after complying with above procedure -that is issuance and the service of Form 48- the contemnor or the party fails to comply with the Court order, the person seeking to enforce the Order can, after 2 days of service of form 48, apply to the Registrar for Form 49 to be issued and served on the contemnor. Service of Form 49 must also be made in like manner as service of Form 48 above.
After complying with the above procedures, the party seeking to enforce the Court Order may then approach the Court by a Motion on Notice for committal. This Motion is to be supported with a statement setting out the reliefs and the grounds of the application, together with an affidavit brought under the Sheriffs and Civil Process Act or Law, he judgment enforcement Rules made thereunder and under the provision of Rule Courts, such as the Federal and State High Court Rules of various States in Nigeria.
It is imperative to state that, committal proceeding as encapsulated above is a process that affects the liberty of an individual because it is criminal in nature. Therefore, the procedure provided by law must be complied with. Failure to comply with any of the procedures set out above constitutes a fundamental vice which will render the whole committal process a nullity. In the case of DIKIBO V IBULUYA, the Court held that “as committal proceedings touch on deprivation of freedom and liberty of the person, the service and procedure thereof are applied strictly and any break or departure from the Strict application vitiates the proceedings”.
Comments On The Application Of Contempt Proceedings
It is commonplace for lawyers while initiating contempt proceedings, to simply adopt the procedure prescribed for contempt in the rules of courts by merely filing a Motion on Notice supported by an Affidavit and a Written Address, without complying with the provisions set in the Sheriffs and Civil Process Act and the Judgment Enforcement rules which require the issuance and service of Forms 48 and 49 on the contemnor.
It is the view of this writer that the provisions of the Rules of Court relating to contempt are complementary to the procedure set out in the Sheriffs and Civil Process Act.
Order 35 Rule 1 of the Federal High Court Civil Procedure Rules 2019, which is similar to Order 48 Rule 8 of the High Court of Lagos State Civil Procedure Rules, 2019, and Order 42 of Ondo State High Court Civil Procedure Rules, 2012.
Therefore, without the Service of Forms 48 and 49, there can be no valid committal proceeding. This view is fortified by the decision of Court in the case of APE V OLOMO where the Court held that “It is the law that merely filing a motion on Notice to commit as was done in the present case without serving Forms 48 and 49 on the Appellant is defective and rendered the application null and void and of no effect.” The Court in the case of OJEME V MOMODU III, while decrying the practice of initiating proceedings for contempt ex facie curiae without issuance and service of Forms 48 and 49, had this to say “I did not think the law of this country regarding freedom of the individual has descended to such abysmal depth of rough and ready justice of medieval era that a person shall be thrown into prison for contempt without giving him an opportunity to retrace his steps.”
The Court also noted that the essence of the requirement to serve Form 48 on the contemnor is to give him a choice to comply with the order of the court, failing which the applicant may, after 48 hours of service of Form 48, apply to the Registrar for the issuance of Form 49. The Notice originates the process of committal as provided by Order 9 Rule 13 of the Judgment (Enforcement) Rules.
The above interpretation of Courts on the relevant law of committal proceedings in Nigeria underscore the need to accord the alleged contemnor fair hearing because contempt of Court is a quasi-criminal proceeding whose outcome may likely affect the liberty of an individual. In the case of OMOIJAHE V. UMORU (Supra), the Supreme Court held that in the trial of criminal contempt (contempt ex facie curiae), an offender is entitled to the benefit of a full process of a criminal trial where the judge would have to rely on evidence or testimony of witnesses to events occurring outside his view.; In keeping with the principles of fair hearing which require that a person should not be a judge/arbiter in his own cause, the Judge whose order is alleged to have been flouted should not try the case himself. The matter must be placed before another judge where the usual procedure for the arrest, charge, and prosecution of the offender must be followed.
It must be added that by the provision of Order 4 Rule 8 of the Judgment Enforcement Procedure Rules, proceedings for the committal of an alleged contemnor who disobeyed Court Order must be initiated within two years of the delivery of the Order or Judgment which is sought to be enforced; and where the applicant fails to initiate the committal proceedings with the time prescribed by law, he must seek the leave of the Court, otherwise the proceeding will be null and void.
