CONTEMPT OF COURT OR ABUSE OF JUDICIAL LEVERAGE?

IS IT CONTEMPT OF COURT OR ABUSE
OF JUDICIAL LEVERAGE?

Written by ALI UDOMOH. He blogs at Raymondali`s Blog.

No subject for now would be more important than the aforementioned.
All worshippers in the temple of Law must drink voraciously from
the fountain of civility. Balancing the excesses of the
Bar with the high handedness of the Bench is by no means an easy task,
but, we must strike a
balance and achieve some acceptable level of
decorum and civility in and out of Court. My task is to attempt to
strike that balance and proffer solutions to a problem. It is a
problem of
grave emergency.

According to The Dictionary of English Law, 4th Edition at page 217
“Contempt of Court is where a person who is a
party to a proceeding in a Superior Court of record fails to comply
with an order made against him or an undertaking given by him or where
a person whether a party to a proceeding or not, does any act which
may tend to hinder the course of justice or show disrespect to the
Court’s authority. Contempts are direct, which only insult or resist
the powers of the Court or the persons of the judges who preside
there; or consequential, which
without such gross insolence, or direct opposition plainly tend to
create a universal
disregard of their authority. Contempt may be divided into acts of
contempt committed in the court itself (IN FA CIE CURIAE) and out of
court. Among the former, are all acts, as talking boisterously,
applauding any part of
the proceedings, refusing to be sworn or to
answer a question as a witness, interfering with the business of the
Court… and refusing to acquiesce in the ruling of the Court or
speaking disrespectfully of or to the judge … Among the latter is the
attempt by intimidation to cause any suitor to discontinue his action,
kidnapping or corrupting or attempting to do so … obstructing or
attempting to obstruct the officers of the Court on their way to their
duties, speaking or writing disrespectfully of the authorities of the
Court, etc”

Image result for judge and lawyer fight

This definition is exhaustive. I shall attempt to
consider the key ingredients of the definition. The key ingredients are:

(a) Failure by a party to an action to comply with
the order of Court.
(b) Hinder the course of justice.
(c) Show disrespect to the authority of the Court.
(d) Insult the person of the judges who preside.

Difficulties could arise when the contempt consists of insult to the
person of the presiding Judge. One of such difficulties is the fact
that the Judge insulted is the complainant and the Judge. Where a
Judge insulted, summarily tries and convicts and imprisons, he may be
legally
within his rights but such summary proceedings do create an
embarrassing situation and a cause for concern. The solution has been
well encapsulated by Oputa (JSC) as he then was. His
Lordship said inter alia as follows:-
“The test whether or not a judge takes himself,
too seriously or thinks too much of himself is in his attitude towards
contempt of his court.
Undoubtedly, one of the most important power of a Judge is his power
to make orders. If these orders are disobeyed, the Judge has one
weapon in his armor, which he can always use. He can punish the
defaulting and
disobedient party for contempt of court either by fine or
imprisonment. 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 loose his temper, never. He
should not provoke an attack,
his utterances must be devoid of sarcasm and
vituperations. Respect must be earned, you do not demand for it. A
classical case where an Acting Chief Magistrate acted beyond the
boundaries of civil language is the case of
Adeyemi Candide – Johnson v Mrs. Esther Edigin. The facts of this case are
simple and straight forward: the respondent was
an Acting Chief Magistrate
Grade 2, in Kano. The appellant herein appeared in the court as counsel.
Consequent upon what transpired at the court, the respondent ordered
the detention of the appellant for a couple of minutes at the cell.
She (the
respondent) cited the appellant for contempt.
Decrying in the strongest of
terms, per ACHIKE J.C.A 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 was
equally unrelenting: I will refuse to – answer that question in the
rudest manner. It was the refusal to answer his 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 unfortunately, to say the
least, for the respondent to have taken leave of her exalted bench,
invited counsel to extra-judicial dialogue and thereafter descended
into the area of vituperative conflict with him”

It is glaring that the learned Acting Chief Magistrate abandoned the
dignity of her court to pursue personal glory. Questions bordering on
the age of counsel was glaringly and patently meant to injure
Counsel’s ego. In Ratio (supra), his Lordship was unsparing: “I think
that the invocation of the power of contempt in the instant case
bordered on abuse of Judicial authority. It is clearly improper and
will
expose the administration of Justice to ridicule if a Magistrate or a
presiding Officer of an inferior court were invested with such
extraordinary powers to provoke unnecessary
extra-judicial verbal exchange with Counsel or member of the public
and yet invoke against him the lethal and drastic power to punish for
contempt”. Also in Ikonne v. C.O.P. & Justice Nnana Nwachukwu,
Aniagolu, J.S.C.,
described it as “untrammeled abuse of judicial
authority”

judge and lawyer
The key here 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 level-headed self-control. The way forward
could be classified in this order:

(1) Be more lenient
(2) Take little notice
(3) Coolness under fire.

It must be noted that patience, maturity, and
keeping “cool under fire” should not be equated to mean that under no
circumstance may the Court invoke its power to punish for contempt.
Courts are enjoined not to punish for discourtesy but, it must act
with dispatch in proper cases of contempt. Proper cases include gross
scandalous and insulting language calculated to detract from the
dignity of the court, acts of violence, talking
boisterously, interfering with court proceedings.

The court can only conduct its business in an atmosphere of peace,
calm and tranquility. Any
act that disrupts the peace, calm and tranquility of
the court constitutes a proper case of contempt. Second, contempt
could be classified under the
class called constructive contempt. This class
includes failure or refusal to obey court orders including subpoenas,
tampering, interfering with or intimidating witnesses, obstructing
officers of the court on their way to their duties, writing
disrespectfully of the authorities of the court, commenting on pending
proceedings, threats to
judicial officers to make them abandon or relinquish their duties etc.

At this juncture, a closer look at a few judicial pronouncements will
further bolster the point.
Lord Denning M.R. in Attorney-General v. Butter, has this to say:
There can be no greater contempt than to
intimidate a witness before he gives evidence or to victimize him
afterwards for having given it’
“How can we expect a witness to give his evidence freely and frankly,
as he ought to do if he is liable, as soon as the case is over, to be
punished for it by those who dislike the evidence he has given? If
this sort of thing could be done in a single case with impunity, the
news of it would soon get round. Witnesses in other cases would be
unwilling to come forward to give evidence, or if they do come
forward, they
would hesitate to speak the truth for fear of the consequence”

The above pronouncements adequately summarises one of the worst forms
of contempt.
I will not conclude this paper without observing
that there are no fixed guidelines or uniform yardsticks for measuring
appropriate cases of
contempt. The key is moderation. Let it be noted
that as contempt of court tends to hinder, inhibit the attempt to
arrive at justice, justice can only
thrive in a relaxed atmosphere. Both the Bench and the Bar should
exhibit mutual respect. And respect begets respect, tolerance begets
tolerance.

The dignity of the trial Judge should rest on finger foundations –
honesty, intellectual fertility, hard work, temperance, courage,
patience and
impeccable integrity. A rude lawyer is a lawyer
that suffers from inferiority complex, abuses and uncouth behaviour
will never be part of
advocacy. Straying from material issues, disorderly presentation,
injudicious and vexatious cross-examination; lack of earnestness in
court;
irresponsible behaviour is a hallmark of a
frustrated lawyer and a failed practice. The watchword and key is
moderation and mutual respect from both sides. With a little help from the Christian Holy Scriptures,  it is established that “A mild answer turns away rage. But a harsh word stirs up Anger” .New world translation of the Holy scriptures.

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