The Federal High Court sitting in Abuja has convicted Abdulrasheed Bawa, the Chairman of Economic and Financial Crimes Commission (EFCC) for contempt of court in relation to his agency’s refusal to comply to to an earlier court order.
Although, the powers of Court to render punishment for contempt, be it contempt in facie curiae (criminal contempt) or ex facie curiae (civil contempt) is inherent in all the Court, however the point of focus is the process and procedure for committal of a person who defies lawful Orders Court under the Federal and States High Court Civil Procedure Rules and Judgment{ Enforcement } Rules made pursuant to Sheriffs and Civil Process Act, 2004. It should be noted that when a contempt of Court committed whether in facie curiae or ex facie curiae, it is the duty of court to deal with it in order to secure and protect the authority of the Court.
Procedure For Contempt In Facie Curiae
The first type of contempt for which a committal proceeding can be set in motion, is contempt in facie curiae. It is a contempt which is committed coram judice or in the face of the Court. It may arise as a result of disrespectful conduct or comments made in the Court room by a contemnor when proceedings are going on and which is seen and heard by the judge, which undermines the dignity of the Court or which interferes with the administration of justice. In other words, it may be conduct which obstructs or disrupts proceedings of Court.
Under this class of contempt, there is no need to call for evidence of what transpired, because it happened in the immediate view of the Court. The Judge saw and heard the contemnor commit what the Court considers contemptuous, and so punishment is meted out summarily, after the contemnor is asked to show cause why he should not be sent to prison for his contempt.
The Supreme Court of Nigeria in the case of INEC & ANOR V OGUEBEGO & ORS, whilst considering the instance when words or actions used in the face of the Court or in the course of proceedings be deemed contemptuous, held as follows: “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….”
A textbook case is seen in the case of ADEYEMI CANDID-JOHNSON V MRS ESTHER EDIGI. Check the citation.
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 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.
Procedure For Contempt Ex Facie Curiae.
The second type of contempt is contempt ex facie curiae which means contempt committed outside the Court (Coram non judice) and therefore out of sight and hearing of the Judge. It arises from disobedience and obstruction of lawful orders of Court. When a Court makes an order directing a person to carry out certain act or to refrain from a particular conduct, failure to abide by the directive is 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 the powers of the Court to administer justice and the Court is entitled to invoke its innate powers to punish an erring party by committing the person to prison.
The procedure for punishment for this category contempt is very strict and it is governed by the provisions of Section 72 of the Sheriffs and Civil Process Act, LFN 2004 (“SCPA”) and Order 9 Rule 13 of Judgment Enforcement Rules. For ease of reference, Section 72 of the SPCA provides as follows.
“ If any person refuses or neglects to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in Paragraph (f) of section 66 of this Act, may order that he be committed to prison and detained in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.” [Emphasis mine]
A summary of the applicable Law and rules of Court as regards proceedings for contempt ex facie curiae s divided into two important stages as follows:
Stage I– when a positive of Order of Court is flouted, the first thing to do is to make an application to the Registrar of the Court for Issuance of Form 48 which would have a copy of the relevant Order endorsed at the back of the Form. Form 48 is a notice of consequence of disobedience of Court Order. The Form 48, endorsed with Court Order, must be signed by the Registrar of the Court and the person who wants to enforce the Court Order must ensure that the form is personally served on the alleged contemnor (party in contempt) by the Court’s bailiff who must file proof service in the Court’s file. The essence of personal service of form 48 is to give the contemnor the opportunity to retrace his steps and avoid the Court’s sanction.
The Court, however, is empowered to dispense with service of the Form 48 and 49 on the contemnor, if the Court is satisfied that he has adequate notice of the Order either by being present when the Order was made or by being notified of the terms of the Order and deliberately refused to comply with same.
Stage II– If after complying with above procedure -that is issuance and the service of Form 48- the contemnor or the party fails to comply with the Court order, the person seeking to enforce the Order can, after 2 days of service of form 48, apply to the Registrar for Form 49 to be issued and served on the contemnor. Service of Form 49 must also be made in like manner as service of Form 48 above.
After complying with the above procedures, the party seeking to enforce the Court Order may then approach the Court by a Motion on Notice for committal. This Motion is to be supported with a statement setting out the reliefs and the grounds of the application, together with an affidavit brought under the Sheriffs and Civil Process Act or Law, he judgment enforcement Rules made thereunder and under the provision of Rule Courts, such as the Federal and State High Court Rules of various States in Nigeria.
It is imperative to state that, committal proceeding as encapsulated above is a process that affects the liberty of an individual because it is criminal in nature. Therefore, the procedure provided by law must be complied with. Failure to comply with any of the procedures set out above constitutes a fundamental vice which will render the whole committal process a nullity. In the case of DIKIBO V IBULUYA, the Court held that “as committal proceedings touch on deprivation of freedom and liberty of the person, the service and procedure thereof are applied strictly and any break or departure from the Strict application vitiates the proceedings”.
The question therefore is has all the proceedings been met in the quest for the committal to prison of Abdulrasheed Bawa, the Chairman of EFCC? We eagerly await the appeal proceedings instituted by the contemnor in the face of the order for his committal action.
George Olufemi Ogunjimi Esq.
Juris Republic.
