Last week, a lawyer, Inibehe Effiong, was sentenced to one month imprisonment for contempt by the Chief Judge of Akwa Ibom State, Justice Ekaette Obot. Lawyers say that Effiong’s conviction without trial negates the principle of fair hearing. ADEBISI ONANUGA reports
Last Wednesday, the Chief Judge of Akwa Ibom State, Justice Ekaette Obot, sentenced an activist and lawyer, Inibehe Effiong, to one-month imprisonment for alleged contempt of court so he can purge himelf of alleged “insolence and dishonourable acts” that tend to bring the court to disrepute.
The judge made the order in the course of proceedings in the case of alleged libel instituted by Akwa Ibom State Governor Mr. Udom Emmanuel against a lawyer, Leo Ekpenyong. Effiong is the defence counsel in the case.
Effiong, who is the lead defence counsel for Ekpenyong, had asked the Chief Judge to recuse herself from handling the case, on the ground of alleged bias.
In his reaction to the development, Samuel Ikpo, Emmanuel’s counsel, claimed that Effiong’s conduct before the court was unruly and that he allegedly uttered some damning and profane words against the judge.
He said: “I believe that when he (Effiiong) comes out of the correctional facility, he will learn how to conduct himself before a court,” Ikpo said.
He claimed that Effiong disobeyed an order given to him by the judge, who asked him to take off his wig and step aside from the Bar.
“A lawyer should not allow himself to use one client to destroy his reputation before all the judges. I think Justice Obot has really been patient with him all this while. Even as a lawyer, I could not tolerate the young lawyer’s conduct,” Ikpo added.
But Effiong, shortly before he was taken into custody, on his Twitter handle, disputed Ikpo’s claim. He said he was an innocent victim of unjustified exercise of power. He said he feared he was no longer safe when the judge invited two armed mobile policemen into the courtroom and ordered the media out before commencing proceedings.
He referred to a July 2, 2022 Premium Times report in which he claimed the judge once threatened to send him to prison after his client accused her of bias in the case. In the report, the judge reportedly lashed out at the counsel after he prayed the court to entertain his application in which he asked the judge to recuse himself from the case.
Reactions trail lawyer’s imprisonment
Expectedly, the development has attracted reactions from legal practitioners, stakeholders in the justice sector and from outside the judiciary. While some argued that the Chief Judge was right in his action, others believed her decision to send the lawyer to prison amounted to an over-kill.
A lawyer, Wale Olusi, commenting on a Facebook post by the Chairman, Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL), Monday Ubani, said: “I don’t see any contempt in asking his lordship to recuse herself where he has cause to suspect bias.
“However, if it is true that he was asked to step out of the bar and remove his wig and he refused to do so, then that in my view would be contempt of court and may have warranted the contempt sentence.”
He said such order by the judge is “the first step in the procedure for contempt in facie curiae.”
The lawyer said he was aware of a similar punishment of a lawyer by a judge.
Olusi added: “Sometime in 1982, a judge of the Lagos High Court, handling the case of a dismissed fire officer who was dismissed for dereliction of duty when the then Nitel building in Lagos was burnt, had ordered that he be reinstated pending the determination of the case. The government disobeyed. At the next hearing his lawyer informed the court of the disobedience. The judge asked the state counsel who confirmed the position. The judge then said: ‘you are a disgrace to the legal profession’ and ordered the court police to derobe him which he did.”
No fair hearing
However, two human rights groups, the Centre for Human and Socio-economic Rights (CHSR) and Coalition of Democratic Advancement (CODAV), condemned the conviction “without trial” of Effiong by Justice Obot.
The groups, in a statement signed by the CHSR President, Comrade Alex Omotehinse, described Justice Obot’s action as ‘shameful and an embarrassment to Nigeria’s judicial institution’.
They called on the Chief Justice of Nigeria (CJN) Justice Olukayode Arinwoola, the Nigeria Bar Association (NBA) and the National Judicial Council (NJC) to intervene.
They said they would not hesitate to mobilise Nigerians on a serious protest on the alleged injustice against one of their own and for denial of fundamental right to fair hearing.
The groups’ statement reads in part: “Based on information gathered, Mr Effiong’s offence was because he stood as a defence counsel to one Mr. Leo Ekpenyong in the libel suit filed by Governor Udom Emmanuel, before the Chief Judge. The activist-lawyer drew the attention of the court to a situation where some armed policemen were displaying guns in the courtroom.
“Barr. Inibehe Effiong in a viral video on Wednesday, July 27, 2022, explained in detail what transpired in the courtroom that led to his persecution and imprisonment by the Chief Judge for one month imprisonment at Uyo Correctional facility, Akwa Ibom State.
“In the viral video Barrister Inibehe Effiong, explained how he informed the court that he was not feeling comfortable and safe having two armed mobile policemen seated inside the courtroom, that it was strange and that felt unsafe and he then pleaded with the Judge to excuse the armed policemen from the courtroom, but instead, the Chief Judge ordered Barrister Inibehe Effiong to step out of the Bar and ordered the policemen to take him to Uyo prison, that he had been sentenced for one month imprisonment.
“We also learnt that there has been a pending motion for the Judge to disqualify and recuse herself from the case on grounds of bias or likelihood of bias in the same suit.”
Types of Contempt
Traditionally, there are two types of contempt. The first type is contempt in facie curiae (criminal contempt) while the second is Contempt Ex Facie Curiae (civil contempt).
Contempt in facie curiae is committed in the face of the court and informed by disrespectful conduct or comments made in the court room during proceedings. It is heard by the judge, undermines the dignity and sanctity of the court, interferes and disrupt administration of justice and considered contemptuous by the judge. In this case, punishment is meted out summarily, after the contemnor must have been asked to show cause why he should not be sent to prison for his contempt. This is the type for which Effiong is alleged to have committed and imprisoned for by the Akwa Ibom State Chief Judge.
On the other hand, contempt ex-facie curiae is contempt committed outside the court. Usually, it has to do with disobedience and obstruction of orders of court.
The failure of a contemnor to abide by the directive or order issued by a court is considered 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 and undermines the powers of the court to administer justice. When this happens, the court is entitled to invoke its powers to punish an erring party by committing the person to prison.
The procedure for punishment in this case is very strict and in accordance with the provisions of Section 72 of the Sheriffs and Civil Process Act, LFN 2004 and Order 9 Rule 13 of Judgment Enforcement Rules.
Power of judge on contempt
The powers of a court to render punishment for contempt, be it contempt in facie curiae or ex facie curiae is inherent in all the court.
Section 31(1) of the Rules of Professional Conduct (RPC) provides; “ A lawyer shall always treat the court with respect, dignity, and honour”.
Subsequently, Section 35 of the same RPC further provides; “A lawyer appearing before a judicial tribunal or court shall accord due respect to it and shall treat the tribunal/court with courtesy and dignity.”
Several analysts agree with Olusi that when a lawyer shows any sign of disrespect to a judge or disregard for the judicial process he will be held in contempt and will be ordered to step out of the bar and “derobe” himself. This, they said, is done to protect the power and sanctity of the court.
Punishment for contempt of court
A judge can punish the defaulting and disobedient lawyer or party for contempt of court either by fine or imprisonment after weighing the surrounding circumstances. All contempts of court have one thing in common- they obstruct one or other in the administration of justice and are impediments to effective justice delivery.
Lawyers’ react
What are the acts that amount to contempt in facie curiae? Can a judge sentence someone without any trial and under what circumstances can a judge do so? What is the position of the law and did the Akwa Ibom Chief Judge act ultra vires? What can be done to improve the relationship between the bar and the bench?
Lawyers shared their knowledge of and experience on the issue. They include Louis Alozie (SAN) and rights activist, Debo Adeleke.
What constitutes contempt?
Alozie said judges are given the power to punish for any form of misbehaviour or act of disrespect or insubordination that occurs in open court. He explained that no formal trial is required since the judge saw the alleged contemptuous act, hence no further evidence is required.
According to him, any conduct that undermines the authority of the judge or amounts to an insult or challenge of the court’s authority, if done in the presence of the court, is contempt in facie curie. He said this is more so when the conduct belittles the dignity of the court in the view of the public.
”We all hold their Lordships in awe and are duty bound to respect the judge. Judges are human beings, and we all know that human beings differ in temperaments. So, what annoys one into punishing the alleged offender may be ignored by the other.
“For lawyers, the golden rule is: know your judge. Without the power to punish for contempt, which from the above is whatever that annoys the judge or brings him into ridicule, administration of justice will be hampered.
“For instance, members of the public or a party that loses a case might turn around to abuse or assault the judge publicly. This is why contempt is seen as anything capable of undermining the administration of justice.”
Appeal the way out
Alozie noted that while Effiong may have his good reasons, “any lawyer ought to know that whenever a judge takes a stand or gives a directive on an issue, he cannot be challenged in open court. The remedy lies on appeal. The panacea for good relationship between the bar and bench is mutual respect. In this regard, much depends on the lawyer.”
A case of abuse of power?
Adeleke said if the Chief Judge of Akwa Ibom State sentenced Effiong to one month sentence without putting him on trial to give him the right of fair hearing, “then the action of the chief Judge is most unfortunate to say the least.”
Adeleke contended that no person can be sentenced by a court of law without such person being granted the opportunity to explain himself or herself.
“This position of law is called fair hearing as contained in the 1999 Constitution of the Federal Republic of Nigeria (as amended).
“Section 36 stipulates that no person is to be sentenced without being given the option of fair hearing. It is the principle of law universally and more importantly supported by the 1999 Constitution. The Constitution is a grundnorm and guiding principle used to guide and regulate the actions of citizens and courts of law.
“It is too elementary law even by a part one law student that the principle of fair hearing is a condition precedent before a citizen can be committed to prison.
“The action of the CJ of Akwa Ibom is a glaring case of abuse of power and judicial rascality which denigrates the sanctity of the Constitution of the FRN. It is equally a slap on the face of Judiciary.”
CJ should have stepped down
Adeleke argued that a judge whose impartiality is under challenge, “ought not to have taken any other step in the proceedings till that application challenging her continuance as the trial judge is determined. It appears that the Chief Judge came to punish counsel for filing that application asking that the learned Chief Judge recuse herself. That is abuse of judicial power, which ought to be punished by National Judicial Council.”
He said assuming without considering that Effiong had committed any infarction that bothered on contempt of court, the CJ being the presiding judge should have stepped down and assigned the matter to another Judge. She cannot be a judge and play the same role of the defence and prosecution in a matter she’s involved in.”
The activist lawyer said Effiong was in order to call the attention of the court to the presence of the two fully armed policemen in the courtroom.
According to him, “The mere presence of policemen with arms in court is an aberration and should not be condoned, granting the fact that our policemen are trigger happy. Allowing them to be present in court with loaded guns could lead to accidental discharge whereby there might be loss of life.”
Alternatively, he added that the best the Chief Judge could have done in the circumstance was to overrule the observation of the lawyer rather than “unjustifiably sentence him to one month in prison for making a lawful and correct observation.
“I am of a strong opinion that the action of the CJ of Akwa Ibom is excessive, wrong, ultravires, indefensible, punitive and irresponsible. She must have been nursing an animosity against the lawyer being an activist which she exhibited in a hurry. It was a case of settling personal score which can never be accommodated by an iota of logic and judicial rules and regulations. It is simply an insult to our jurisprudence,” Adeleke said.
According to him, it was unfortunate that the case under consideration was between the state governor and an individual whereby Effiong was standing as the defence counsel.
Why NJC, NBA must wade in
Adeleke said the NBA owes Effiong a duty of care just as every lawyer that is under its umbrella. “They have to demonstrate that in the judiciary, there must be checks and balances,” he said, and cited a number of cases regarding contempt of court and the principle of fair hearing.
He listed some of them to include: Akpan Vs Akpan 1996)7 NWLR (Pt.462); F.C.D.A. Vs Koripamo Agary (2010)14 NWLR (Pt.1213)377 at 391-392; Kwara State Vs Afolabi (1991)6 NWLR (Pt. 196) 212 at 227 and Nwawka Vs Adilkamkwu (2015) ALL FWLR (pt.804)
He alleged that “It is highly unfortunate and ridicules the Nigerian Judiciary in the society.
“From the stories told by proponents and opponents of the controversy, that trial was not conducted. Mr. Effiong was not put in the dock to show cause. That is wrong. Even if there was a contemptuous conduct, the right procedure ought to have been followed. Should there be an appeal, what would the appellate court review?
Judges must be cautious
The late jurist and former Chief Judge of Edo State, Justice Micheal Edokpayi, in a paper titled, “Is It Contempt Of Court Or Abuse Of Judicial Power?” presented in honour of a jurist and former Chief Justice of Nigeria, Justice Salihu Belgore, some years ago, cautioned on handling of contempt cases.
Justice Edokpayi argued that contempt must not be equated with conduct which will inevitably obstruct or disrupt the proceedings of court.
According to him, “The question that must be asked is, does the act diminish the dignity of the court? A distinction must be drawn between what may annoy a Judge and what amounts to contempt. It must also be noted that the power to punish for contempt is not a power to be recklessly used to assuage the injured feelings of the presiding judge.
“It is not contempt of court when a judge does not agree with learned counsel’s method of advocacy. Counsel has a constitutional right of audience. How he chooses to present his case is his own style. It would be unconstitutional and an abuse of office for a judge to abridge counsel’s right of audience by dangling or invoking his powers of contempt. Counsel owes to the court the duty of assistance and duty of utmost respect, but he owes his command and with all the skill he possesses. It is not contempt and it will never be where counsel refuses to be directed by the court as to how he should present or argue his case. Judicial interruption can be irritating to counsel. And his natural reaction to such interruption cannot be equated with contempt.“
The late Justice Edokpayi further stated that all contempts of court have one thing in common – they obstruct one or other of the streams of justice.
“ If the contempt is in the face of the court (in facie curiae) it is tried summarily by the Judge who may be the very Judge who had been injured by the contempt. How he deals with the contempt shows and proves his maturity.
“I must stress that the commonest scenes in court are usually situations where a judicial officer provokes a counsel and the same judicial officer will take cover under the canopy of contempt. On no account should a Judicial officer lose his temper, never. He should not provoke an attack, his utterances, must be devoid of sarcasm and vituperations. Respect must be earned, you don’t demand for it”, he stated.
He cited a case where an Acting Chief Magistrate acted beyond the boundaries of civil language – the case of Adeyemi Candide-Johnson v Mrs. Esther Edigin – to buttress his view on contempt.
Justice Edokpayi contended that the rationale for punishment for contempt is the need to vindicate the dignity of the court and thereby protect due administration of justice rather than to bolster the power and dignity of the Judge as an individual.
Way forward for judges
Justice Edokpayi said the key for judges is maturity.
“Learned counsel may say things irritating to the judge. In such a situation experience and maturity will inform the judge that it is best to maintain a dignified silence. Maturity will dictate sober and levelheaded self-control.”
He further admonished judges to ”be more lenient, take little notice, coolness under fire, to mellow down even in the face of extreme provocation.“
He added: “A judge must display dignity, maturity and kindness. An impatient judge is no judge. He can never be in control of his court. Impatience can lead to, precipitate action. It is always better and safer to ignore little details, discourtesies, in the words of Hon. Justice S. O. Uwaifo JSC: “Small matters” (c) Coolness Under Fire: There are times when the tension in the courtroom becomes palpably high and heavily charged. In such a situation coolness becomes an amiable judicial attribute.”