Mr Ibrahim Mohammed of an Magistrate Court in Wuse Zone 6, Abuja On March 24, 2021 sentenced a lawyer, Eburu Ekwe Barth to two months in prison for contempt in facie curiae. But lawyers are divided as to whether the court acted within its powers, writes ROBERT EGBE.
t is a fate that has befallen many litigants, but on March 24, 2021 a member of the Nigerian Bar Association (NBA) Abuja Branch, Mr Eburu Ekwe Barth, was at the receiving end of an angry court.
Barth was hauled to prison following his alleged conviction for contempt by His Worship, Ibrahim Mohammed of a Magistrate Court, Wuse Zone 6, Abuja.
Traditionally, contempts are classified as either in the face of the court (in facie curiae) or not in the face of the court (ex facie curiae).
Barth’s offence was the latter: in facie curiae.
Background
According to several online reports, Mr Mohammed ordered Barth’s arrest for his manner of challenging the magistrate on the summary of a case before the court.
The lawyer was said to have interjected while the magistrate was delivering a ruling on an application by the opposing lawyer.
He allegedly disputed the court’s summary of proceedings, as contained in its ruling, among other things, but his language and conduct was felt to have, among others, impugned the court’s integrity.
Pleas for mercy by lawyers present during the proceedings were of no effect.
Barth was summarily tried, convicted and sentenced Ekwe to two months in prison for contempt in facie curiae.
The lawyer was handcuffed and led out of the courtroom, to the Suleja Correctional Centre.
He was however released 24 hours later, after the order was set aside.
This was confirmed by a statement released by the NBA Abuja Branch, seen by The Nation.
The statement signed by the branch’s Secretary, Eric Ibe, reads:
“I am pleased to inform our esteemed members and the general public that further to the intervention of the Branch Executive ably led by Mr. Bulus Atsen, an order has been given for the release of Mr. Eburu Ekwe Barth and the order for his remand set aside.
“We wish to assure lawyers in Abuja of the commitment of the NBA and lawyers generally to work towards providing the requisite support to lawyers.
“To this extent, I wish to commend the intervention of Learned Silks, Bar Leaders and lawyers including Mr Godspower Eroga, Prof Chidi Anselm Odinkalu, Chidi Ifeonye, Benjamin Sekpe and Maxwell Okpara of the Capital Bar, who played one role or the other towards the release of Eburu Ekwe Barth.”
Contempt
Duhaime’s Law Dictionary defines contempt thus:
“Contempt offences fall within two broad categories, viz., contempt in the face of the court (contempt in facie) and contempts committed outside the court (contempt ex facie).
“A contempt in the face of the court may be broadly described as any word spoken or act done in, or in the precincts of, the court which obstructs or interferes with the due administration of justice or is calculated so to do. Forms of conduct which have been held to constitute such contempt are: assaults committed in court; insults to the court; interruption of court proceedings; and refusal on the part of a witness to be sworn or, having been sworn, refusal to answer.
“Conduct which amounts to contempt outside the court may be described in general terms 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. Common examples of such contempts are: publications which are intended or likely to prejudice the fair trial or conduct of criminal or civil proceedings; publications which scandalize or otherwise lower the authority of the court; and acts which interfere with or obstruct persons having duties to discharge in a court of justice.”
As is to be expected, lawyers have disagreed as to whether the Abuja Magistrate Court acted in accordance with its powers.
‘Magistrates have no power to deal with contempt in facie curiae’
According to Abuja-based lawyer, Mr Emmanuel Madujibe Chukwu, relying on case law, magistrates have no power to punish contempt in facie curiae.
In his March 24 article published on barristerng.com, Chukwu said only a Superior Court of record, such as a high court, can summarily punish for contempt in facie curiae.
He said: “In contributing my little quota to this heavy issue at hand, I must first deal unkindly with the rude and discourteous character of the defense counsel before the Honourable Court.
“Now, let me point out that it is only a Superior Court of record that has inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. See INEC & Anor V Oguebego & Ors (2017) JELR 37955 (SC).”
The lawyer explained that the Court of Appeal had the opportunity to entertain “this confusing situation in Adeyemi Candid-Johnson V Mrs Esther Edigi (2018) LPELR-45148(CA) where the court held that the 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.’
“Achike JCA (as he then was) corroborated his reasoning with my fears and held; ‘It is clearly improper and will expose the Administration of Justice to ridicule if a Magistrate or presiding officer of an inferior Court were invested with such extraordinary powers to provoke extrajudicial verbal exchange with counsel and yet invoke against him the lethal and drastic power to punish for contempt’.
Chukwu added: “Here, it will be said that 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 case 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.
“The point I am struggling to make has been settled by the Supreme Court in the case of INEC & Anor V Oguebego & Ors (2017) JELR 37955 (SC) that such arrant words or actions of the contemnor must be capable of interfering with the administration of justice by the court.
“Let me also quickly agree with the Justices of the Apex Court in the above cases that it is only a Superior Court of record that has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily.
“Could it be safely said that the court did not abuse her powers to order that defense counsel be tried summarily, convicted and handcuffed to a gory place of safety to secure the ego and personal aggrandizement of the presiding officer?”
Falana: Magistrates can punish for contempt in facie curiae
But activist-lawyer Mr. Femi Falana, SAN, disagreed.
According to him, the Abuja Magistrate Court acted within its powers, even though it could have handled the situation more diplomatically.
He noted that in contempt in facie curiae, the ‘judex serves as the Complaint, Prosecutor and Judge’ and the actions of the lawyer was one capable of being cited as contempt, nonetheless, the Magistrate would have simply asked the lawyer to leave the court.
In a statement Falana recalled a similar instance involving the law lord, Lord Denning, as published in the June 1964 edition of the New York Times.
“Tempers may have been slightly ruffled, but decorum prevailed nonetheless in the Court of Appeal today as a protesting woman litigant flung law books at the judges. Vera Beth Stone was conducting her own case. She was refused leave to appeal a judgment on the levying of costs in an unsuccessful action she had brought against the Association of Official Shorthand Writers in which she had charged falsification of transcripts. So she picked up a book in front of her and said:
“This is not a personal matter, but I have to bring this before the court.” The book flew past the ear of Lord Denning, Master of the Rolls, and struck the paneling behind him. Neither he nor either of the two other judges on the dais, Lord Justices Harman and Diplock, showed agitation.
“It does not have to be tomatoes,” Miss Stone continued, and let fly a second book, a bit wider of the mark. “Will you please leave the court!” Lord Denning said politely but firmly. “I shall only come back and throw more books,” Miss Stone replied. “Will you leave?” Lord Denning persisted. Miss Stone surveyed her dwindling library. “I am running out of ammunition,” she said.
“As she was led from the courtroom, she said to Lord Denning: “May I congratulate your lordship upon your coolness under fire.”
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