HON. CHRIS AZUBUOGU V HON. (DR) HARRY N. ORANEZI & ORS
April 13, 2025FORT ROYAL HOMES LIMITED & ANOR v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR
April 15, 2025Legalpedia Citation: (2017) Legalpedia (SC) 11111
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Tue Jul 11, 2017
Suit Number: SC116/2017
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CHIMA CENTUS NWEZE JUSTICE. SUPREME COURT
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OKAY ACHIKE, JUSTICE, SUPREME COURT
EMMANUEL OLAYINKA AYOOLA, JUSTICE, SUPREME COURT.
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PARTIES
1.INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)2.PROFESSOR MAHMOOD YAKUBU APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
SUMMARY OF FACTS:
The Federal High Court granted injunctive exparte orders against the Appellant restraining the 1st Defendant, Peoples Democratic Party(PDP), its agents, privies from forwarding, sending or submitting to the 2nd Defendant, (INEC), any delegates list or nominated candidates that may emerge from the congress for primaries conducted by the purported caretaker committee set up by the 1st Defendant for the Peoples Democratic Party, Anambra State Chapter, except those that emanated from the Plaintiff’s Congress and primaries. Upon an appeal to the Court of Appeal, the court entered judgement in favour of the Appellant setting aside the trial Court’s orders, hence an appeal to this court. This court set aside the judgement of the lower court and stated that the order of the Federal High Court recognizing the Ejike Oguebego led Executive Committee of the Peoples Democratic Party, Anambra State Chapter, is still subsisting until it is set aside by an order of the Court. As a result, the 1st and 2nd Respondents aimed at the actualization of what they perceived as the import of the order of this Court. The Counsel for the 1st and 2nd Respondents implored the Appellants to avail them with the Certificates of Return of elections of April, 2015 and also demanded the retrieval of the Certificate of Return from PDP legislators elected from Anambra State. In consequence, the Appellants approached this court for the clarification of its decision and the ambit of its order and same was disclaimed by the court which however stated that it is wrong for any party to import into the judgement issues which were not ventilated and decided. Notwithstanding this Court’s indulgence, the 1st and 2nd Respondents continued to harass the Appellants to recognize their candidates and to strip the members currently in the legislative Houses of their positions. This was firmly rejected by the Appellants, hence the resort to the issuance of Forms 48 and 49 of the Judgement (Enforcement)Rules, an order of the Federal High Court compelling the attendance of the Appellants in Court, an order which was affirmed by the Court of Appeal and has resulted in the present appeal.
HELD
Appeal Allowed
ISSUES
Whether, in an application of this nature, the applicants must be present in Court to take their application?
RATIONES DECIDENDI
CONTEMPT OF COURT – POSITION OF THE LAW ON CONTEMPT OF COURT
“Now, the general common law rule is that a person in contempt cannot be heard in the cause unless he purges himself of the contempt, Group Danone and Anor v. Voltic (Nig) Ltd (2008) LPELR 1341 (SC) 21; B-D; [2008] 7 NWLR (pt. 1087) 637; (2008) 34 NSCQR (pt. 1) 40. However, that ancient prescription is now subject to certain exceptions.
Thus, it is now tolerably settled that where a defendant, in a cause, challenges the validity of an order directed against him, either by way of an appeal or other application, he cannot be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other, Onwochei Odogwu v. Olemeoku Odogwu (1992) 2 NWLR (pt 225) 539, 554. Gordon v. Gordon (1904) All ER 163.
This re-statement has even become necessary now having regard to the distinctive attribute of contempt as sui generis, Boyo v. The State (1970) All NLR 316; (1970) LPELR – 797 (SC) 4- 5; C-A; Oswald on Contempt Committal and Attachment, 17; John C, Fox, The History of Contempt of Court (London: Professional Books Ltd. 1972) 44 et seq; Ebhodaghe v. Okoye (2005) 4 WRN 1, 15; Ifekwe v. Mgbako [1990] 3 NWLR (pt. 140) 588, 593; Bonnie v. Gold (1996) 8 NWLR (pt. 465) 230, 238; Okeke v. A.G. Anambra State (1997) 9 NWLR (pt. 519) 123, 140.
CONTEMPT OF COURT – CLASSIFICATIONS OF CONTEMPT
“I take liberty to restate that there are two broad classifications of contempt – that committed in facie curiae and that committed ex facie curiae. In the latter category, a charge and a plea are necessary and the accused is entitled to a fair hearing of the case against him. In both types of contempt, a trial is involved, Omoijahe v. Umoru and Ors (1999) LPELR – 2645 (SC) 10 – 11; Awosanya v. Board of Customs and Excise (1975) 3 SC 47. What separates one from the other is the procedure to be adopted”.
CONTEMPT OF COURT- NATURE OF WORDS OR ACTION USED IN THE FACE OF THE COURT THAT CAN AMOUNT TO CONTEMPT- EXERCISE OF THE POWER OF THE COURT IN PUNISHING FOR CONTEMPT
“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, Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264, 270; Araka v. Attorney-General (1982) 1 SC 153; Oku v. State [1970] 1 NLR 60.
This must be for it is a power which a Court, must of necessity, possess. Its usefulness, surely depends on the wisdom and restraint with which it is exercised. In cases of contempt ex facie curiae, there may be cases where the offence should be dealt with summarily, but such hearing must be conducted in accordance with cardinal principles of fair process. Above all, the case must be one the facts surrounding the alleged contempt are so notorious as to be virtually incontestable, where the Judge would have to rely on evidence or testimony of witnesses to events occurring outside his view and outside of his presence in Court, he 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, Oku v. The State (supra) 68. In other words, in the trial of criminal contempt ex facie curiae, an offender is entitled to the benefit of a full process of a criminal trial. The reason for this is obvious. Firstly, this is to ensure that the accused person receives a fair hearing of the case against him. In the second place, the Judge no doubt would have to rely on evidence or testimony of witnesses to events which did not occur in his presence, Boyo v. Attorney-General of Mid- West (1971) 1 All NLR 353”.
CONTEMPT PROCEEDINGS – WHETHER CONTEMPT PROCEEDINGS HAS THE LIKELIHOOD OF AFFECTING THE LIBERTY OF A CITIZEN
“It is even settled that contempt or committal proceeding no doubt is quasi-criminal proceeding which has the likelihood of affecting the liberty of a citizen. Against this background therefore, the person setting up contempt proceedings must therefore ensure that every step that is necessary is taken and the entire requirements are complied with strictly, Opobiyi v. Muniru [2008] All FWLR (pt. 408) 380; Nya v Edem [2005] All FWLR (pt. 242) 576; F.C.D.A. v. Koripamo – Agary (2010) 14 NWLR (pt.1213) 377, 391-392; Aina v. Jinadu (1992) 4 NWLR (pt.233) 90; Ogaji v. Igonikon – Digbani [2010] 10 NWLR (pt.1202) 298, 306; and Uhunwangbo v. Okojie [1989] 5 NWLR (pt.122) 471, 487” .
CONTEMPT EX FACIE CURIAE – PROCEDURAL STEPS FOR DEALING WITH CONTEMPT COMMITTED EX FACIE CURIAE
“Since contempt outside the precincts of the Court is quasi-criminal in nature, every procedural step (the vega modus prosequiandl must ex necessitate) be followed strictly and strictly complied with. Accordingly, the appellants ought to have been arrested, charged before the Court and full trial conducted and the offence proved beyond reasonable doubt and if found guilty, punished in accordance with the Law,Omoijahe v. Umoru (2000) FWLR (pt. 29) 2401, 2406; Ogboni v. Ojah (1989) 1 NWLR (pt.100) 725; Alesinloye v. Oyediran (1999) 12 NWLR (pt.63) 491; Ojeme & Ors. v. Momodu II (1995) Chief Tom Ikimi v. Godwin Omamuli (1995) 3 NWLR (pt.387) 335; Military Governor of Kwara State v. Rufus Afolabi (1991) 6 NWLR (pt.196) 212; Oyeyinka v. Osague [1994] 2 NWLR (pt.328) 612; Awobukun v. Adeyemi (1968) NWLR 299; Gloria Nya v. Madam Eme Bassey Edem (2005) 4 NWLR (pt.973) 345 at 367 -369; Deduwa and Ors v. The State (1975) 1 All NLR (pt. 1) 1; Boyo v. Attorney General Mid-West State (1971) 1 ALL NLR 342, 352”.
CONTEMPT PROCEEDINGS – WHETHER A PARTY IN CONTEMPT CAN BE HEARD IN THE SAME CAUSE UNDER NIGERIAN LAW
“Now, although the general rule in England has been stated in Halsbury’s Laws of England (4th Edition) Vol, 9, para. 206 as follows: “the general rule is that a party in contempt, that is a party against whom an order for committal has been made, cannot be heard or take proceedings in the same cause until he has purged his contempt,” the basic position of the law in Nigeria, on the fundamental nature of jurisdiction and fair hearing in the adjudicatory system/process had long been settled in long line of cases, Madukolu v. Nkemdilim [1962] 2 SCNLR 341; Okafor v. A- G Anambra State (1991) 6 NWLR (pt 200) 659, 678; Afro Continental v. Co-operative Association of Professionals Inc. [2003] 5 NWLR (pt.813) 303, 317 – 318; Group Danone v. Voltic Nig. Ltd [2008] 7 NWLR (pt. 1087) 668, 667.
Indeed, as this Court held in Abeke v. Odunsi and Anor (2013) LPELR – 20640 (SC) 17; B – G:
“However, generally, the common-law principle which precludes persons in disobedience of the order of the Court from being heard in respect of the matters in which they stand in disobedience has been settled.
In Hadkinson v. Hadkinson (1952) 2 All ER 567, 573, Denning, LJ, opined thus:
‘I need hardly say that it is very rare for this Court to refuse to hear counsel for an appellant. No matter how badly a litigant has behaved, nevertheless, generally speaking, if he has a right of appeal, he has a right to be heard for the simple reason that, if he is not heard, his right of appeal is valueless…the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but if his disobedience is such that so long as it continues, it impedes the cause of justice in the cause, by making it more difficult for the Court to ascertain the truth or to enforce the orders which it may make, then the Court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.’
CONTEMPT PROCEEDINGS – EXCEPTIONS TO THE RULE THAT A PARTY IN CONTEMPT CANNOT BE HEARD
There are however a few exceptions to the general rule. The principle does not apply to applications by an alleged contemnor challenging the order on the ground of lack of jurisdiction by the Court. There is a clear distinction between the right to be heard in defence of the order made and the right to enforce yet an orderwhilst in disobedience. The right to be heard is clearly different from the right to enforce a right whilst still in disobedience. See, First African Trust Bank Limited and Anor v. Basil O. Ezegbu and Anor [1992] 9 NWLR (pt. 264) 132; (1993) 6 SCNJ 122…”
In First African Trust Bank Limited and Anor v. Basil O. Ezegbu and Anor (supra) at 151 Karibi – Whyte, JSC, spoke so incisively, about these exceptions thus:
“In my respectful opinion, the rule precluding hearing a contemnor before the Court is founded on principle. To every rule there are always exceptions. The exceptions to the general rule that a party in contempt may not be heard as distilled from the authorities referred to (supra) are:
(1) Where the party is seeking for leave to appeal against the order of which he is in contempt; (2) Where the opposition to the order is one on the ground of lack of jurisdiction; (3) Where the contemnor is seeking to be heard in defence of the Order and (4) Where it can be shown that there were certain procedural irregularities in making of the orders which irregularities make the order unsustainable.”
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CONTEMPT OF COURT – WHETHER A DEFENDANT WHO CHALLENGES THE VALIDITY OF AN ORDER DIRECTED AGAINST HIM CAN BE PROCEEDED AGAINST FOR CONTEMPT OF THE ORDER
“It is now tolerably settled that where a defendant, in a cause, challenges the validity of an order directed against him, either by way of an appeal or other application, he cannot be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other, Onwochei Odogwu v. Olemeoku Odogwu (supra); Gordon v. Gordon (supra)”.
CASES CITED
STATUTES REFERRED TO
Federal High Court (Civil Procedure) Rules|Sheriffs and Civil Process Act, Laws of the Federation|
