The Head of Department of Jurisprudence and Public Law, Faculty of Law, Kwara State University, Malete, Dr Yahya Hambali, talks to JOSEPHINE OGUNDEJI about the incarceration of a rights lawyer, Inibehe Effiong, by the Chief Judge of Akwa Ibom State, Ekaette Obot, over alleged contempt of court
What does contempt of court mean, and what amounts to contempt?
When we talk about contempt, it refers to a situation where one disrespects a court.
Generally, the law of contempt is meant to protect the court and the institution that the person sitting there is representing. It is not all the time about the individual, because when a judge steps out of the court, he is just like you and me, but once he enters the court, whatever he or she does in his or her official capacity, it is deemed that the court did that.
So, respect is supposed to be given to that institution. When one fails to respect that institution by way of not carrying out the order of a court, or by doing something that will disparage the integrity of the court, then it is said that such a person has committed contempt.
The law of contempt is essentially meant to protect the integrity of the court so that the respect and confidence people have in that institution will not be eroded.
What is the difference between contempt in-facie and contempt ex-facie?
A contempt in-facie curia is one that is done in the face of the court, like telling the court that “you are a liar”, or when the court orders one to go out of the court but the person fails to leave.
In essence, when the court gives an order to a person and the person fails to do it that is what is referred to as contempt in-facie curia (contempt committed in the face of the court).
While contempt ex-facia curia is a disrespect done to a court of law outside the court, an instance is where a person fails to carry out an order of the court or disparages the court by way of defamation.
The procedures for dealing with contempt in-facie curia and contempt ex-facia curia are different. For contempt in-facie curia, a judge can punish the contemnor right there, by ordering the person to enter the dock and explain why he or she should not be convicted for contempt. While for contempt ex-facia curia, the disparaged judge does not necessarily need to punish the contemnor, a reference can be made to the Chief Judge of that state, explaining what happened, and the Ministry of Justice will have to take it up, prosecuting the offender in a different court, not by the disparaged judge.
Once a person takes up the role of a judicial officer, he is clothed with the aura of that institution, and that is why there are myriads of rules guiding the conduct of a judicial officer in public.
What offence did the arrested lawyer, Inibehe Effiong, commit that amounted to contempt?
Let me make some preliminary points before I answer this question. The first preliminary point I want to make is that I wasn’t in court to witness what happened. The second preliminary point I want to make is that, flowing from my explanation, a judge is empowered to punish a contemnor, who has committed an offence in the case of the court. The third preliminary point is that I have only heard the side of Effiong and not the side of the Chief Judge, Justice Ekaette Obot.
Also, to give an informed opinion, you must have heard from both sides.
However, from the story put to the public in sequel to what the lawyer said, there might have been more to it than was put to the public because it is not out of place for armed men to be present in court. The only thing I know is that an arrest cannot be made inside the courtroom; police officers would have to wait until the accused left the courtroom, and even the court grounds, before re-arresting them. However, if the story put to the public is the only information available, it is insufficient.
Can a lawyer be de-robed by the Chief Judge while in court?
Of course! If a lawyer commits contempt of court, the first thing the judicial officer would do is to tell the contemnor to de-robe (remove his wig and gown), and then order him to enter the dock.
Can a lawyer be sent to prison without following the committal procedure as required by law? What is the importance of a fair hearing in a committal proceeding?
A court has inherent and discretionary power over its own court. If contempt is committed, it is within the inherent power of the court to overlook it, warn the contemnor, or have him imprisoned for an hour or two or more.
However, no matter how heinous a crime is, the person standing trial has the right to fair hearing. Hence, the rights of a contemnor may be infringed upon if he is not allowed to explain why he did what the judge has found to be contemptuous and why he does not deserve to be punished.
The judge cannot force a contemnor to do this part of explaining himself if he chooses not to say anything. Forcing him to explain himself would be a breach of the contemnor’s right to remain silent.
The essence of entering the dock is for the contemnor to explain why he should not be committed for contempt. Entering the dock in this instant case is the committal procedure that should have been legally done before Effiong was sent to prison.
Also, allowing the lawyer’s continual stay in the bar while being de-robed is equally wrong. Once a lawyer is de-robed, he is to step out of the bar.
What happens when a chief judge does not follow the committal procedure rules as obtained by law?
A judge cannot be held civilly liable for whatever he does in his or her court.
However, the contemnor can enforce his right by appealing. A petition can also be written against the judge to the National Judicial Council.
In legal proceedings, can contempt be committed against the person of the chief judge or the Office of the chief judge?
Let’s take it from the stance of a judge generally. If a judge goes to the market to buy something and there is a kind of misunderstanding between him and another person that belongs to his person, not his office.
However, if the litigant or his lawyer, who has a case before him, sees him in the market and says, “Thank God I have seen you today; this is a bribe-taker’s judge,” this statement is made to the office of the judge.
Can the chief judge be called to order?
Why not? That is why we have the National Judicial Council. When a petition is written to the NJC as regards a defaulting judge, the judge can be issued a query because there is an arm of the NJC that hears petitions to avail such a judge a fair hearing. In addition, there are other penalties that can be issued to a judge, like a removal, warning, suspension, etc.
Does a lawyer have a right to exercise his freedom of expression while representing a client in court?
A lawyer is in charge of the law, not facts, so a judge cannot dictate to a lawyer how he is to conduct his case. However, if a lawyer makes a mistake, he makes it at his own peril. A judge can guide a lawyer if the lawyer is making a mistake, but if the lawyer insists on doing it his own way, the judge cannot force the lawyer not to go ahead.
Does a lawyer have the right to tell a chief judge to recuse himself from a matter because of a perceived bias regarding his person and the substantive suit?
Yes, the law allows that. A litigant or his lawyer must have confidence in the judge presiding over his matter. That is the only way whatever decision the court arrives at can be respected by the litigant.
If confidence is eroded, then the legitimacy of whatever the court comes up with is tainted. If, at any stage of a proceeding, a litigant does not have confidence in the judge again, the judge can always be told to recuse himself. This is within the right of the litigant or his lawyer to do, particularly if there is a valid reason for that. This can happen, particularly when there is a conflict of interest.
Does the Nigerian Bar Association have any right to contest the ruling of the court on behalf of a lawyer?
This depends; the parties to a trial are the only ones who can go on appeal.
However, if, for instance, as in this case, there is an element of bias or an element of abuse of power, etc., the NBA can always step in, because the NBA can take the role of a pressure group, as in this case.
Also, if they are properly seized of the fact that the judge overstepped his bounds, they can take the matter up on behalf of the lawyer and add a petition to NJC. The NBA is meant to fight injustice.
If the lawyer of a litigant is being prosecuted, what will become of the litigant?
It is the duty of any solicitor and advocate in Nigeria to take up the representation of any defendant, no matter how heinous the crime is.
Hence, any lawyer can continue with the defense of the litigant; it doesn’t affect the rights of the litigant.
What are the rights of the detained lawyer if the arrest was unconstitutional?
The constitution is very clear that that would be an infringement of a constitutional right, and the procedure for enforcement is very clear. It is the right of the detained lawyer that would be enforced in the high court of that state or even the federal high court, where the right has been infringed.
Can an arrest be made based on the personal provocation of the chief judge or solely on the substantive suit?
Judges are human beings, and they have different dispositions on different issues. As I previously stated, the purpose of contempt punishment is to protect the institution of judicial officers. An act that instigates a lawyer’s being cited for contempt must be one that brings down the image of the court.
For instance, telling a judge that he is incompetent may seem personal, directly to the person of the judge. However, it goes beyond that because it is bringing down the integrity of that court.
Going forward, how can the National Judicial Council checkmate the excesses of judicial officers?
The procedure has always been there; they have a committee of the NJC that handles the discipline of judicial officers. It usually emanates from a petition. When NJC receives a petition, the petition will be sent to the committee of the NJC, and the committee will send the petition to the affected judge for a written response.
Afterwards, the judge would be requested to appear in person, and in appearing in person, the judge can be represented by a lawyer. The recommendation of the sub-committee would be sent to the general body of the NJC to either affirm or reject it.
