As the year comes to an end, the Nigerian judiciary battles yet again with a series of flagrant violations of its orders by the heads of critical law enforcement agencies.
In 2018, the Court ordered the anti-graft agency to return seized assets including a Range Rover and forty million Naira belonging to Rufus Ojuawo, a former Nigerian Air Force official, after he had been discharged of corruption charges. But the EFCC disobeyed this order. Thus, on October 28, 2022, the Federal High Court in Abuja held that Abdulrasheed Bawa, Chairman of the Economic and Financial Crimes Commission for disobeying an order of the court be remanded in the correctional centre in Kuje, Abuja.
In its defence, the agency through a statement claimed that the order of the court to return the assets was given under the suspended former EFCC chairman, Ibrahim Magu as Bawa assumed office in March 2021. The order has been subsisting since the time of Magu as the acting chairman of the EFCC, and the agency continued to disobey the court order after Bawa became EFCC’s chairman.
Barely days after the conviction, the court vacated its order convicting the EFCC chairman. According to Justice Chizoba Orji, the same judge who made the committal order, the EFCC chairman had complied with the directive that a Range Rover Sport vehicle that the agency seized from the claimant should be returned. She further noted that by several internal memoranda that were made available to the court, the EFCC chairman, had initiated the agency’s internal mechanism to ensure the payment of the sum of forty million Naira that was seized to the claimant and was satisfied that there was no violation of its 2018 order.
Barely a month after the EFCC chairman’s conviction, Usman Baba, Inspector-General of Police was sentenced to three months in prison for disobeying a court order. The conviction came in relation to a suit filed by Patrick Okoli, a former police officer who was unlawfully forced to retire from the Nigerian Police Force in June 1992. The court had ordered that Okoli should be reinstated in 2009 but he was not. The court’s order that ten million Naira be paid to the applicant was also disobeyed. Delivering the judgement, Justice M.O. Olajuwon of the Federal High Court sitting in Abuja held that the contemnor, the IGP, should be committed to prison and detained in custody for three months, or until the court order is enforced. According to the court, “If at the end of the three months, the contemnor remains recalcitrant and still refuses to purge himself of his contempt, he shall be committed for another period and until he purges his contempt”.
However, the police claimed that the order to reinstate the officer came before the current IGP’s tenure. In defence, it was stated that the IGP has directed the Commissioner of Police of the Legal Unit of the police to investigate the allegation “in a bid to ascertain the position of the court and proffer informed legal advice for the IGP’s prompt and necessary action”. The IGP in a counter-affidavit filed argued that the Public Service Commission was responsible for the promotion and reinstatement of any police officer and that the remuneration of such an officer was the responsibility of the Federal government through the CBN and the Accountant General.
The court has since vacated the committal order on the premise that the evidence before her indicated that the IGP has substantially complied with the order of the court and that the IGP had also given assurance of ensuring full compliance with the court’s order. The court stated that “in view of the substantial compliance with the order of the court, and the assurance of full compliance, the order commuting the applicant, IGP, Usman Alkali Baba, is hereby set aside”.
On November 30, 2022, just weeks after the IGP’s case, another high-profile contempt ruling was delivered by a High Court sitting in Minna, the Niger State Capital. The court ordered Farouk Yahaya, the Chief of Army Staff, to be arrested and remanded, alongside the Commandant (training and doctrine command), Minna, Olugbenga Olubanji, for wilfully disobeying an order of the court made in October. The committal order was sequel to a motion on notice brought pursuant to Niger state High Court (Civil Procedure) Rule 2018. The plaintiffs/applicants in the case had prayed the court to commute Yahaya and Olubanji into correctional custody for contempt. While the details of the case are still sketchy, it is unsure that both contemnors were taken into custody.
The principle of the rule of law is the effect that no one is above the law and the judiciary is the chief custodian of this edict.
In all these cases, none of the contemnors made it to the correctional centre because the committal orders were overturned because there had been a mistake on the part of the judge. Since committal proceedings in Nigeria touch on the freedom and liberty of a person, they are generally diligently done. Before a court would give a committal order, there is a procedure which is applied strictly and any departure from this vitiates the order.
According to the Sheriffs and Civil Process Act, when a positive order of the court is flouted, the person for whose benefit such order was given may apply to the registrar of the court for the issuance of Form 48, which is a notice of consequence of disobedience of court order, which is usually served to the erring party. The form must be served personally on the party by the court’s bailiff who must file proof of service in the court’s file. The importance of this form is to give the party in contempt the opportunity to correct his steps and avoid the court’s sanctions. After two days of service of Form 48 and the party in contempt fails to comply with the order, the party is served Form 49 which is to notify the contemnor that enforcement proceedings will be commenced against the party. Alternatively, by the rules of court, the party in contempt can also be put on notice by the filing of a motion on notice supported by an affidavit and a written address.
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What matters is that such a party is put on notice that the order of the court is being flouted by his inactions and that an application has been made against the person. If the erring party continues to flout the court’s order after notice is given, an order of committal is enforced against the party.
The Supreme Court in Nigeria has held that “it is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer”. Contempt of court, whether contempt in facie curiae (contempt in the face of the court) or contempt ex facie curiae (outside the court) is a serious offence. It is an offence which interferes with the powers of the court to administer justice and the court can invoke its innate powers to punish an offender by a committal order to prison.
From the actions of the law enforcement agencies cited above, the contempt was committed outside the court which is the disobedience and obstruction of lawful orders of the court. Section 72 of the Sheriffs and Civil Process Act provides the procedure for the punishment of an offender who commits contempt outside the court – “if any person refuses or neglects to comply with an order made against him, other than for the payment of money, the court instead of dealing with him as a judgement debtor, 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”. This means that when an order of the court is flouted, it is the law that the offenders are put in prison until the court’s order is obeyed.
The section further states that “…and given such security as the court thinks fit to obey the 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.
Therefore, the defence by the heads of the EFCC and IGP that the court orders given were before they were appointed as heads does not stand on the law.
Interestingly, there seems to be a difference in how the contempt proceedings in the cases cited above and like cases were handled when compared to cases of committal proceedings against individuals. The case of Inibehe Effiong, a Nigerian lawyer, readily comes to mind. The lawyer was convicted of contempt of court and immediately put in prison. Although it is important to note that the contempt for which Inibehe was convicted was contempt in facie curiae and thus could be sentenced summarily. However, such sentencing is done after the accused is asked to show cause why he should not be sent to prison for his contempt, and by Inibehe’s account, he was not afforded such an opportunity and went on to spend hours being assaulted and battered while in police custody.
The judiciary is often described as the last hope of the common man; the organ of government made to ensure the rule of law is guaranteed. The conviction and immediate overturn of court orders against the heads of key law enforcement agencies may engender unsavoury contemplations on the applications of the rule of law within the judiciary and disrupt the balance of constitutional democracy.
Again, contempt ex-facie curie orders are typically issued when an order of court upholding the rights of an individual or entity is not obeyed. This means that not only is a court order being disobeyed but a party is unable to reap the rewards of its victory in court by the action or inaction of the deemed contemnor.
The principle of the rule of law is the effect that no one is above the law and the judiciary is the chief custodian of this edict.
If the Nigerian judiciary is, at this point, seen to still be grappling with ensuring obedience to its orders, especially with key law agencies who should be partnering with it in this course, it does not portend well for the coming year with Nigeria’s general elections fast approaching. It can only be hoped that the judiciary continues to make bold statements against flagrant disabuse to ensure that the very essence of our democratic integrity is guaranteed.
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