AWOSANYA (APPELLANT)
v.
BOARD OF CUSTOMS (RESPONDENT)
(1975) All N.L.R. 104
Division: Supreme Court
Date of Judgment: 14th March, 1975
Case Number:
Before: Elias, C.J.N., Fatayi-Williams and Iirikefe, JJ.S.C.
APPEAL from the Federal Revenue, Court, Lagos.
The appellant, a Senior Magistrate in Lagos State was found guilty of criminal contempt of court by Belgore J. sitting in the Federal Revenue Court. The accused was alleged to have disobeyed the order of the said Revenue Court to stay further proceedings in a case before the accused's court in which two persons were charged with evading payment of customs duties on some imported goods. The two persons were prosecuted in the Magistrate's Court, and the Board of Customs and Excise later brought a fresh action against them in the newly established Federal Revenue Court, which ordered that further proceedings in the Magistrate's Court be stayed.
On February 6, 1974, the date fixed for hearing the motion, neither the two accused, nor the Senior Magistrate turned up, the court was informed that on February 5, 1975, the Magistrate had struck out the case because he had been served with an order and a motion of certiorari.
Thereupon the learned trial Judge ordered that a criminal summons be issued against the Senior Magistrate to appear before the Federal Revenue Court to show cause why he should not be committed for contempt.
The learned trial Judge instructed that a summary of the facts of the complaint should be attached to the Criminal summons to be served. After reviewing the offence and the law, the learned trial Judge concluded that the Magistrate's disobedience was wilful and that it proceeded from improper motive and so found him guilty of contempt.
On appeal to the Supreme Court, it was contended inter alia, that if the action of the appellant constituted an offence at all, it was a civil contempt and that assuming that it was criminal contempt, he had not had a fair trial because of procedural irregularity.
HELD:
(1) that an error of judgment on the Magistrate's part whether as to jurisdiction or as to the precise order to make in the circumstances confronting him was not criminal;
(2) that even if it was regarded as criminal contempt, the trial Judge was wrong to have ordered a criminal summons to be issued against the Magistrate without following the procedure laid down under the Criminal Procedure Act;
(3) that, although the proviso to S. 22 (10) of the Constitution of the Federation 1963 makes it unnecessary to frame a charge stipulating the penalty in cases of contempt, the irregularity in the procedure adopted makes it clear that the Magistrate had not had a fair trial, in that the order served on the Magistrate did not ask him to show cause;
(4) that the learned trial Judge should not himself have assumed the drafting of the charge as if he were exercising the power under the Penal Procedure Code 1959, of the Northern States of Nigeria, since there is no similar power granted under the Criminal Procedure Act, which is the applicable law;
(5) that, although there had been disrespect shown to the learned trial Judge by the Magistrate by striking out the case before him instead of adjourning it, the Magistrate's action did not amount to contempt in law; as he had merely acted prematurely;
(6) that this is a case of unintentional disobedience of a court order by appellant and should have been dealt with as a minor matter of civil contempt; and
(7) that the appellant is accordingly acquitted and discharged.
APPEAL allowed
Cases referred to:
Board of Customs and Excise v. Alhaji Wasiu Dosunmu & anor.
Charge B/161/73
Onitiri v. Ojomo 21 N.L.R. 19
Shobogun v. Sanni & ors S.C. 314/1973
Burg v. Blunt 88 E.R. 753
Ellish v. Johnson 79 E.R. 828
Mungean v. Wheatley (1851) 6 Exh. Ch. 88
Anderson v. Gorrie & ors [1895] 1 Q.B. 668, at pp. 670-671
Fray v. Blackburn 122 E.R. 217 and (1863) 3 B & S 576
Boyo v. A-Gen of Mid-West [1971] 1 All N.L.R. 342 at 352
R. v. Jackson (1925) 6 N.L.R. 44
R. v. Okukoku (1926) 7 N.L.R. 60
Sirros v. Moore (1974) 3 W.L.R. 459 at 460.
Statutes referred to:
Magistrates Court (Lagos) Act (Cap. 113)
Constitution of the Federation 1963
Criminal Code
Criminal Code Act
Criminal Procedure Act
Supreme Court Act 1960
Penal Procedure Code 1959
High Court of Lagos Act
Federal Revenue Court Decree
Rules and Orders referred to:
Order 5, r. 18 (2) (b) High Court of Lagos Civil Procedure Rules
Order 52, r. 1 (2) (a) English Supreme Court Rules (See White Book 1973, Vol. 1 also 0.52, r. 5)
Order 53 r. 18 High Court of Lagos Civil Procedure Rules
APPEAL from the Federal Revenue Court, Lagos
Suit No. S.C. 204/1974
Chief F.R.A. Williams (with him Mr Ladi Williams and Mr O. Ajose Adeogun) for the Appellant
Mr B.E. Nwazojie, Fed. D.D.P.P. (with him Miss D.O. Komolafe, State Counsel) for the 1st respondent. Mr Tunde Ilori, D.S.G. Lagos State (with him Mr J.A. Oduneye) for the 2nd Respondent.
ELIAS, C.J.N. (Delivering the Judgment of the court)-In Charge No. FRC/L/20/74, Belgore J., found Mr T.A.A. Awosanya, Senior Magistrate, Lagos State, guilty of criminal contempt of his court in that the accused person had disobeyed his order to stay further proceedings in a case before the accused's court in which two persons were charged with offences of evading payment of customs duties on certain imported goods.
The material facts may be stated briefly as follows. A criminal charge B/161/73, Board of Customs & Excise v. Alhaji Wasiu Dosunmu & anor. was filed at the Magistrate's Court Igbosere, Lagos before Senior Magistrate Awosanya on July 3, 1973 while the defendants were remanded in custody and the matter was adjourned to July 26, 1973. The case later came up again on July 19, 1973 when it was adjourned first to September 12, 1973 and later to October 23, 1973. On the latter date, a Senior State Counsel applied for the case to be transferred to the Federal Revenue Court on the ground that the Magistrate's Court no longer had jurisdiction in view of the Federal Revenue Court (Amendment) Decree 1973 or, alternatively, to withdraw the charge. On November 2, 1973, Senior Magistrate Awosanya, in a considered ruling, refused the application, and then adjourned the case first to November 8, 1973 and finally to January 17, 1974 for hearing. On that date, the Senior Magistrate adjourned the hearing of the case to February 5, 1974. Meanwhile, on January 21, 1974, however, a fresh charge No. FRC/L/2C/74 which was substantially the same as the one before Senior Magistrate Awosanya was filed in the Federal Revenue Court and was then adjourned to January 23, 1974 for mention so that the accused persons could be served and a date fixed for trial.
When the two accused persons failed to appear on January 23, 1974, Bench Warrants were issued by Belgore, J., but, as the warrants could still not be executed until January 28, 1974, a State Counsel, Grade I filed a motion ex parte for leave to bring a motion for an order of prohibition and certiorari against the respondents, and also for a stay of the proceedings before the Senior Magistrate until the determination of the orders of certiorari and prohibition. The ex parte motion was granted and all parties were to be served with notice of the motion fixing the argument for February 6, 1974. On that day, when neither the two accused nor Senior Magistrate Awosanya turned up, the State Counsel informed the court that the Senior Magistrate had struck out the case on the previous day, February 5, 1974, and the bailiff tendered an affidavit of service on the Senior Magistrate on January 31, 1974. The State Counsel later, on February 13, 1974, filed an affidavit as to what happened in the Magistrate's Court on February 5, 1974, when "the Magistrate struck the case out because according to his statement in the open court he had been served with an order and a motion of certiorari."
Thereupon, the learned trial Judge ordered that a criminal summons be issued against Senior Magistrate Awosanya to appear before the Federal Revenue Court of February 18, 1974 "to show cause why he should not be committed for contempt."
He also instructed that "a summary of the facts of the complaint should be attached to the criminal summons to be served." On February 18, 1974, Awosanya appeared in court being represented by the Solicitor-General, and a Senior State Counsel, Lagos State. The Solicitor-General asked for an adjournment to study the case, as he had just then been served with the summons. The matter was then adjourned to February 28, 1974 but, before this date, Awosanya had filed an affidavit to which he annexed a certified true copy of the record of proceedings in the Igbosere Court up to January 17, 1974 and an uncertified true copy of the proceedings at Ikeja Court on February 5, 1974. As it was considered necessary for Mr Awosanya to file an additional affidavit in order to answer certain points, the matter was further adjourned from February 28, 1974 to March 5, 1974. When on March 5, 1974, the Lagos State Solicitor-General decided to withdraw on the ground that the State could not represent any individual on a criminal charge, Chief Rotimi Williams appeared for Senior Magistrate Awosanya before the Federal Revenue Court. He submitted that as his client would not have a fair trial, the learned judge should not try the case; that a criminal summons should not have been issued against Awosanya in the circumstances of this case; that, if Awosanya was guilty of any contempt at all, it was a civil, and not a criminal, contempt; that, if it were held to be a criminal contempt, the Federal Revenue Court could not try it as it did not come within section 7 of the Federal Revenue Court Decree 1973; and that there must be evidence of bad faith on the Magistrate's part for disobeying the order of the Federal Revenue Court, and his submission was that that was not established in the instant case.
The learned judge, after reviewing the evidence and the law, came to the conclusion that the Magistrate's disobedience was wilful and that it proceeded from improper motive, and so found him guilty of contempt. The present appeal has been brought against this judgment.
Various grounds of appeal were filed but, Chief Williams, learned Counsel for the appellant, asked and was granted leave to argue all the grounds together. His arguments may be considered as falling under three broad submissions. The first is that the action of the appellant did not constitute a contempt of court. Secondly, if it constitutes an offence at all it is one involving only a civil contempt by the Magistrate for disobeying the order of the superior court for a stay of proceedings. The third submission is that, assuming that it is a case of criminal contempt, the appellant has not had a fair trial on the ground of procedural irregularity. Let us examine each separately.
At the time that the appellant struck out the matter of February 5, 1974, there was an order for stay of proceedings pending the hearing of the application for an order of prohibition in the Federal Revenue Court. He nevertheless made a determination striking out the case in these words:
"I have repeatedly observed that I am not particularly interested in hearing any of the Federal Revenue Cases and that my duty here is to dispense justice without any fear or favour. I am still avowedly dedicated to this course of justice.
In the circumstances I felt bound to declare closed the proceedings herein and dismiss this charge with liberty to the Board to proceed with the matter in a court of the Board's own choice.
The charge as it is before me is hereby dismissed. 1st defendant is hereby discharged thereon but not on the merits.
2nd defendant is also hereby discharged thereon but not on the merits."
His Worship's reason for making this particular order were stated in his affidavit as follows:
"14. That having been informed that the accused persons had been charged before the Federal Revenue Court in January 1974 and in view of the motion to prohibit me from hearing the matter, I honestly consider it proper to close the matter before me hence I struck it out on 5.2.74 so that the accused persons might not be put into the jeopardy of facing identical criminal charges in two separate courts.
15. That at the time I struck out the case I have not received His Lordship's order back from my head of department."
We may now consider the nature and extent of the protection which section 74 (1) of the Magistrates' Court (Lagos) Act (Cap. 113) gives. The section reads:
"No magistrate or Justice of Peace shall be liable for any act done by him or ordered by him to be done in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he at the time, in good faith, believes himself to have jurisdiction to do or order to be done the act in question."
Chief Williams submitted that the appellant should be given the protection afforded by the section and that it is for any one alleging bad faith to prove it; Onitiri v. Ojomo 21 N.L.R. 19. We think that disobedience of an order of a superior court by an inferior court to which it is issued is not to be lightly regarded and may, in certain circumstances, amount to contempt of the court that issued the order. In the present case, however, in addition to the reasons given above by the Magistrate, there is the following portion of his ruling of November 11, 1974:
"Mr I. Sofola has addressed me on the question as what is a part-heard matter-presumably in anticipation of the Amendment Decree No. 38 of 1973 on the question of Pending matters before the regular courts.
He has argued very ingeniously well that these cases now before this Court are part-heard cases and that this Court will therefore, be seised of jurisdiction to try them.
Unfortunately, Mr Harris Eze did not reply to this submission.
Indeed it is a very novel point of law for which I am unable to provide an immediate answer. Perhaps the Board may want to consider the same point of law too."
Again, the appellant's Further Affidavit made the following important assertion in paragraph 4:
"That the normal practice in the Lagos State Magisterial service is that whenever a Magistrate is transferred from one Magisterial District to another Magisterial District, all his part-heard cases are transferred to his new post for him to complete. This practice became necessary to prevent part-heard matters being started DE NOVO by another Magistrate in view of the heavy congestion in the Lagos State Magistrate Courts."
To this may be added these three paragraphs:-
"14. That because I had submitted all the papers in this case to my Head of Department on 29th January, 1974 I was not aware on 6th February 1974 that this matter was to come up in this Honourable Court on that day.
15. That since the appearance before this Honourable Court on 6th February, 1974 was meant to hear argument on why the Order Nisi should not be confirmed, and since I had been directed not to oppose the application for an order of Prohibition, I truly and sincerely believed that my Head of Department had made all necessary arrangement with the Lagos State Ministry of Justice for Counsel to appear and inform this Honourable Court that we are not opposing the Order Nisi being confirmed.
19. That throughout the hearing of Charge No. B/161/73 before me, and throughout the time I was served with this Honourable Court's Order Nisi in this matter, I acted in good faith without any intention to disobey this Honourable Court and in the honest belief that I was acting within the limits of my judicial functions."
This crucial averment was never contradicted by a counter-affidavit nor by other convincing evidence on the part of the prosecution, if we may so describe the other side. Moreover, the Magistrate's complaint that the controversy as to when a case is part-heard was never answered by the prosecution although alleged by Counsel for the accused. It is not enough to show by means of Legal Notices that there are Magisterial Districts within the Lagos State. It is necessary to give evidence of the mode of administering the magisterial districts, a matter which can only be established by calling upon the Chief Justice or the Chief Registrar to provide the appropriate evidence of what is done in practice. We may observe that, in a number of recent cases, of which Shobogun v. Sanni & ors S.C. 314/1973 is one, we have had to pronounce on the subject of interzonal or inter-district transfers of magistrates from their courts to act as Acting Registrar of Titles for Temporary periods and to be sent back to their normal court duties thereafter. The learned judge is no doubt unaware of this practice within the Lagos High Court jurisdiction, and we will concede that anyone not familiar with this arrangement might think it odd, as no doubt the learned judge believed and also Counsel for the respondent before us did, that the magistrate kept his record book with him throughout his postings from the Land Registry to the Igbosere Court and again to the Ikeja Court where he eventually disposed of the case as he did. In the light of this background, we do not consider it a case where the Magistrate could be fairly regarded as having clung to the case from any improper motive. It must be remembered that the appellant did produce a circular letter from the Chief Registrar showing evidence of such postings (See Ex. C referred to in para. 10 of the Affidavit of March 2, 1974). As for his striking out the case on February 5, 1974, while we do not think it right for him to have acted at all on that day, we are of the view that what he did do prematurely was what he would have been entitled to do at the proper time. We must note that the Magistrate merely struck out the case; he did not dismiss it by discharging and acquitting the accused persons, which would have been a very different matter altogether. We agree with Mr Nwazojie, learned Counsel from the Federal Attorney-General's Office, that the Senior Magistrate should have kept adjourning the case until it could otherwise be disposed of, as by being taken over by the Federal Revenue Court. We think that the appellant, was in error in acting somewhat hastily. But let us see the gravamen of the learned judge's complaint on this score. He said:
"Despite this, the Senior Magistrate T.A.A. Awosanya on the 5th February, 1974 disobeyed this order, took action on the case by striking it out and thereby frustrating the effort of this Court in hearing the Motion and making it difficult if not impossible to commence the criminal trial."
This observation of the learned judge, which played no insignificant part in his judgment of the Magistrate's action, would appear to have been based on misinformation or lack of information as to the true position of the two accused persons. It seems clear to us that, in the light of the evidence, they were available because they were released on bail on the orders of Belgore, J., himself who made the following ruling, inter alia, on March 5, 1974:
"I have heard enough of this case and I will send the criminal case to the President to re-assign it to another judge. The two defendants will be released on bail and they are to appear in Court 1 before the President on Monday 11th. 1st defendant on N1,000 with two sureties on the same amount."
Accordingly, it was neither difficult nor impossible to commence the criminal trial of the two accused persons, as the learned judge had feared, in consequence of the Magistrate's striking out the case on February 5, 1974.
Before we turn to a consideration of the complaint of procedural irregularity made by learned Counsel for the appellant, we may say something about the possible distinction between civil and criminal contempt. To begin with, we find ourselves in agreement with the following observation of the learned judge:
"A clear-cut distinction may be hard to be drawn between a civil and a criminal contempt and it might not be useful to lay down any broad characteristics of either but each case must be considered on its facts. It is not only contempt committed in the face of the court that is criminal nor is every disobedience of court's order a civil contempt. Civil contempt is usually though not necessarily employed to enforce a court's order."
And we also endorse the following subsequent comment of the learned judge.
"In other cases of disobedience of court's order, there is nothing more to look for before conviction for the offence of contempt. But as laid down in the case of Burton cited by the Counsel for Mr Awosanya, a judge of an inferior court will not be convicted for contempt for disregarding an order of a superior court unless the disobedience is wilful and proceeds from improper motives. This principle enunciated in Burton's case was considered in Burgh v. Blunt 88 E.R. 753; Ellish v. Johnson 79 E.R. 828 and Mungean v. Wheatley 1851 6 Ex. Ch. 88. The consensus of these decision is that if a superior court's order has been disobeyed by an inferior court one has to look whether the disobedience is wilful and proceeds from improper motives."
Where we disagree with the learned judge is as to the illustrations he gave and particularly as to the conclusion he reached that the contempt is criminal. It seems to us that the judge drew an inference of criminality of the magistrate's action in striking out the case from the criminality of the charge against the two accused persons. An error of judgment on the Magistrate's part whether as to jurisdiction or as to the precise order to make in the circumstances with which he was confronted can hardly be characterised as criminal, and no amount of argument as to a suspected improper motive would make it a criminal offence in itself. For as Lord Esher, M.R., observed in Anderson v. Gorrie & ors. [1895] 1 Q.B. 668, at pp. 670-671;
"No one can doubt that if any judge exercise his jurisdiction from malicious motives he has been guilty of a gross dereliction of duty; but the question that arises is what is to be done in such a case... By the common law of England it is the law that no such action will lie. The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice... To my mind there is no doubt that the proposition is true to its fullest extent, that no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office."
The Master of Rolls has also observed, inter alia, as follows:
"Crompton, J., in Fray v. Blackburn 122 E.R. 217 said: 'It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly...The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions'."
If a judge is thus immune from legal action by a private citizen who had been committed for contempt of court in the case just cite, he should be similarly immune from any punitive action by a judge of a superior court. After all, the same protection is afforded to judges as to magistrates (see s. 83 of the High Court of Lagos Act).
Now, assuming that the appellant has committed a contempt of the Federal Revenue Court, what is the proper procedure of dealing with such a case? It is settled law that the contemptnor is to be brought to trial by an order of attachment by way of a warrant for committal: 0.5, r.18 (2) (b) of the High Court of Lagos Civil Procedure Rules which, by reference to 0.52, r. 1 (2) (2) of the English Supreme Court Rules (see White Book, 1972, Vol. 1, also 0.52, r. 5), governs cases of contempt consisting of any disobedience of a court order. In the present case, however, the judge ordered a Criminal Summons to be issued against the Magistrate, using Criminal Form 4, but otherwise failing to comply with the Criminal Procedure Act which prescribes certain formalities to be observed. He, no doubt, caused to be attached to the Criminal Summons a so-called summary of facts leading to the decision to arrest the Magistrate, although there is no warrant for such a procedure in law. The Criminal Summons is, however, defective in that it nowhere requires the accused "to show cause why he should not be punished for contempt." That is left to be gathered only from the order which learned Counsel for the appellant strenuously denied having been served upon the appellant. The judge, when this double irregularity was pointed out to him at the trial as also Mr Nwazojie, learned Counsel appearing on behalf of the Federal Attorney-General, replied that the presence of the accused in court in answer to the criminal summons must be deemed to have cured any procedural irregularity. The learned judge said:
"If issuing criminal summons to secure attendance of Mr Awosanya was a procedural irregularity, which I do not hold it was, that irregularity was cured by his attendance and it did not go to the merit of the actual case of contempt. He was given ample opportunity to know the complaint against him by having a summary of the case attached to the summons."
Mr Nwazojie invited us to exercise our discretion under section 26(1) of our Supreme Court Act, 1960 which reads: "The Supreme Court on any appeal against conviction under this Part shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was a miscarriage of justice in any other case, subject to the provisions of subsection (3) of this section and section 27 dismiss the appeal:
Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
We are of the opinion, however, that, although section 22(10) proviso of the Constitution of the Federation 1963, makes it unnecessary to frame a charge stipulating a penalty in