In the quest of having smooth free operations, it is not uncommon to find people who engage in nefarious activities having protective charms made by herbalists. These charms are enablers, which without them increase the chance of malefactors being apprehended. What is then the standpoint of law regarding herbalists who fortify these criminal minds?
By virtue of Section 213 of the Criminal Code, anyone who engages in this act is guilty of a felony and liable to imprisonment for Five (5) years. To secure the conviction, the prosecution has to prove two ingredients which are: (a) that the accused makes, sells, or keeps for sale any charm that is reputed to protect thieves, robbers, burglars, or any other malefactor. (b) that the charm was found in his possession without lawful and reasonable excuse.
Furthermore, there is currently no superior court of record cases on this principle of law. It’s suggested that one of the ways to curb the rife instances of criminal activities is for the Police to also prosecute these herbalists. This would serve as a deterrence to others who may want to walk that path.
In conclusion, while the law doesn’t frown on an individual’s choice of being an herbalist, the law steps in to criminalize using such charms to endanger the security architecture of a state and its citizens.
Today’s analysis centers on the compulsory acquisition of property by the Government. This analysis would take the form of a Q&A.
Question 1: Can Nigerians own immovable property?
Answer: Yes, they can. This right has been statutorily provided for in Section 43 of the Constitution.
Question 2: Is this right absolute?
Answer: No, it is not. It’s a qualified right which means there is an exception. The exception is that the Government can take someone’s land for the benefit of the public interest.
Question 3: Is this exception provided under the law?
Answer: Yes. It is provided under Section 44(1) of the Constitution and Section 28(1) of the Land Use Act.
Question 4: What amounts to Public Interest?
Answer: Though the law empowers the acquisition of land by the Government when it is required for the public interest, neither the Constitution nor the Land Use Act defines public interest. As such, recourse is made to judicial authorities. In Goldmark Nigeria Limited v Ibafon Company Limited [2012]10 NWLR(Pt 1308), it was suggested that for a particular purpose to qualify as public purpose or public interest, it must not be vague and the way it benefits the public at large must be capable of proof. The test is whether or not the purpose is meant to benefit the public and not just to aid the commercial transaction of a company or a group of people for their own selfish or financial purpose. (P. 356, paras. A-C).
Question 5: What are the conditions precedent?
Answer: Before they can be an effective acquisition, there must be sufficient notice given to the occupier of the land and swift payment of a reasonable compensation. So the two conditions precedent are sufficient notice and payment of reasonable compensation. Where the Government disobeys the law by not complying with the laid down procedures for the acquisition of property, such acquisition is void and it is the duty of the courts to intervene between the Government and the private citizen. Goldmark Nigeria Limited v Ibafon Company Limited [2012]10 NWLR(Pt 1308)
Question 6: Will Notice in the gazette or newspaper suffice as sufficient notice?
Answer: Publication in the gazette does not constitute sufficient notice. There must be personal service served to the affected person. See the cases of Ononuju v A.G Anambra State (2009) 10 NWLR (Pt. 1148) 182; A.G Bendel State v Aideyan (1989) 4 NWLR (Pt. 118)646; Provost, Lagos State College of Education v Edun (2004) 6 NWLR (Pt. 870) 476; Okeowo v A.G Ogun State (2010) 16 NWLR (Pt. 1219) 327(P. (356, paras. C-E).
Question 7: How is the compensation computed?
Answer: There are no exhaustive parameters for which the Courts’ compensatory order could be made as each case must be determined on its own strength. Nonetheless, the principles for computation of compensation that have guarded the Court are the location of the land and the actual cost of the land.
Case Law 1:Amale v Sokoto State Government [2012]5 NWLR (Pt1292)
In that case, the appellant’s land and movable properties situated at KoferKade, Kama Market in Sokoto metropolis were compulsorily acquired by the then Military Governor of Sokoto State for the purpose of expanding the Cattle (Kara) Market by the Sokoto Local Government. The appellant was offered compensation for the acquired land but he refused to collect it. He then brought up action for infringement of his fundamental human right. On appeal, the court held that the revocation of the appellant’s statutory right of occupancy was legal, and could not constitute an encroachment on his fundamental right. Delivering the lead judgment, Fabiyi JSC held that: The provisions of section44(1) and (2) are very clear and unambiguous. It gave a right of action to an aggrieved party whose property was compulsorily acquired without compliance with the provisions of the section. Where, however, the acquisition complied with the provisions of the section, no cause of action accrued to the aggrieved party as such action would be legal in the eyes of the law. (Pp. 201, paras. B-E 205-206, paras. E-B).
Case Law 2: Goldmark Nigeria Limited & Ors v Ibafon Company Limited & Ors[2012]10 NWLR(Pt 1308)
The 1st and 2nd respondents in this appeal were the plaintiffs at the High Court of Lagos State. The case of the 1st and 2nd respondents was that by two separate Deeds dated 6th of January 1978 and 20th of January 1976 and registered as No. 999 on page 99 in volume 1794, and No. 16 in volume 1806 at the Lands Registry in Lagos, the 1st and 2nd respondents respectively became leaseholders for 99 years each of the parcels of land being, lying and situate at Ibafon Off Apapa-Oshodi Expressway, Araromi.
The respondents were in possession of the said parcels of land and were exercising ownership rights including fencing them until when by Government Notice No. 601 of 22nd of June 1976, the Federal Military Government purportedly acquire the said parcels of land for a public purpose and in particular for the use of the Nigerian Ports Authority. No notice of the acquisitions was ever served on the 1st and 2nd respondents.
To the 1st and 2nd respondents’ total shock, they discovered that rather than use the said lands for its own purposes, the Nigerian Ports Authority Had leased out the said lands to private individuals and companies particularly the 1st, 2nd, and 4th appellants who used the parcels of land for their businesses such as the selling of sand and other businesses which were totally private and which had nothing to do with the purpose for which the lands were purportedly acquired.
Displeased by this flagrant act, they instituted an action for unlawful acquisition of land and the Courts found in their favour. The Court held that such acquisition was illegal, unlawful, null, and void. It further held that “where a statute specifically provides for a particular way in which Government or any party can obtain title, the Government or the party can only acquire title by strict compliance with the statute, unless the statute or its.”
In conclusion, every citizen of Nigeria has the right to acquire and own immovable property anywhere in Nigeria. Despite this, the law allows the Government to acquire the land for the sake of public interest provided that the conditions precedent have been fulfilled.
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On a personal disposition, no one reasonably likes to be disparaged especially in the public. This stance also extends to judges in the administration of justice. In AG v Leveller Magazine Ltd. [1979] AC 440, Lord Diplock opined that “it is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it.”
Contempt of court is any act or conduct which interferes with the course of justice and tends to bring the authority and administration of law into disrespect. Statutorily, it is a simple offence under Section 133 and 6 of both Criminal and Penal Codes respectively. Under the Criminal Code, it is an offence punishable by imprisonment not exceeding three months.
In Ezenwankwo v State 2015 2 NWLR (Pt. 1443) 265, the court held that the twin elements of contempt of court are interference and disrespect. In the same vein, in Odu v Jolaoso (2005) 16 NWLR (pt.950) 178, contempt was said to: “embrace such invidious acts as an insult or unsavory comments with very sinister motives against a Court with a view to denigrating the Court and smear, besmirch its nobility, its majesty, its aura, its responsibility, or indulging in an expressive sinister and offensive act or words that would lower the esteem of the Court in the eyes of the public.”
Furthermore, contempt of court is usually classified as either criminal or civil. While criminal contempt consists of words or acts which obstruct or tend to interfere with the administration of justice, civil contempt consists of disobedience to judgment, orders, or other processes of the court. The catalogue of conducts that are contemptuous in and out of the court is not exhaustive.
In addition, the modes of contempt can, basically, be divided into two categories namely:
contempt in facie curiae otherwise known as contempt in the face of the court.
contempt ex facie curiae otherwise known as contempt outside the court.
Contempt in facie curiae
This is contempt in the face of the Court and it is punishable summarily for the sake of maintaining the dignity and the authority of the Court. Under this category, there is no need to call for evidence of what transpired, because it happened in the immediate view of the Court.
As to the procedure, several judicial authorities such as Agbachom v State (1970)1 All NLR 69 and Atake v AG Federation (1981) 3 NCLR 66 have enunciated the steps in which the court must follow before it can hold an accused guilty for the offence of contempt in facie curiae. These are:
the court should put the accused in the dock;
the court should state the accused’s offence specifically and distinctly, and
the Court should ask the accused to show cause why he should not be committed for contempt.
It is pertinent to state that the alleged contemnor must not be put in the witness box, for putting him in the witness box is tantamount to compelling him to give evidence and this clearly offends against the provisions of Section 36(11) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which states that no person who is tried for a criminal offence shall be compelled to give evidence at the trial.
Contempt ex facie curiae
As earlier mentioned, this is a type of contempt committed outside the court. Unlike contempt in facie curiae where the offender can be apprehended and punished right there in the court without the necessity of framing any charge, taking plea, or calling any witness, in ex facie curiae, the normal procedure of issue of warrant, arrest, drafting of charge, taking of plea, calling of witnesses, etc. must be followed.
In both categories, failure to follow the laid down procedures will lead to the nullity of the proceeding. The rationale behind this is that where a man’s liberty is at stake, every requirement of the law must be strictly complied with. Lee v. Walker (1985)1 All ER 781 at 786, Dibia v Igwe(1998) 9 NWLR (Pt. 564) 78.
The procedure for this category is statutorily governed by the provisions of Section 72 of the Sheriffs and Civil Process Act, LFN 2004 which states that “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.”
At this juncture, it is noteworthy that the power of the court to punish the contemnor must be reasonably exercised. It shouldn’t be used as an instrument of vendetta. In Deduwa v. State (1975) 1 All NLR, the Supreme Court held that: “the power to commit is not retained for the personal aggrandisement of a judge or whoever mans the court. The powers are created, maintained, and retained for the purpose of preserving the honour and dignity of the court and so the judge holds the power on behalf of the court and by the tradition of his office, he should eschew any type of temperamental outburst as would let him lose his own control of the situation and his own appreciation of the correct method of procedure.”
Moving on, the position of the law is that when an alleged contempt is committed ex-facie curiae, a judge who is personally involved should not hear the case but another judge. This is to upload one of the principles of fair hearing which is that no one can be a judge in his own case.
The Effiong’s Case
As narrated by the lawyer on his Twitter page, the Chief Judge of Akwa Ibom State, Justice Ekaette Obot on Wednesday, July 27, 2022 committed him to the state correctional centre for one month over what she described as contemptuous behaviour in the court.
Several questions are up here:
Did the lawyer actually give us the full story of what transpired in Court? Was his action contemptuous or not? Ascertaining this is germane because more often than not, the first person who rushes to social media to report a wrong is not always the innocent.
Since the contempt was in face of the court, did Milord follow the requirements of the law or was this power arbitrarily exercised?
These are the questions that I don’t have answers to because I wasn’t in Court. As such, since we are not privy to the full story, we must refrain from passing a verdict. Nevertheless, what we are certain of is that the law won’t excuse a wrong without a remedy. As such, if upon the effluxion of the one-month imprisonment, the concerned lawyer can always seek available remedy at his disposal. Till then, we would be watching.
In conclusion, the rationale for contempt is the need to vindicate the dignity of the Court and thereby protect the due administration of justice. The doctrine places a duty on everyone including legal practitioners not to act in ways as to bring disrepute to the court and justices of law.
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