Justice Hussein Murhktar of the Abuja high court is weaving his way into history.
This is so for more reasons than one.
First is his handling of the on-going public interest trial bordering on confirming whether the serving Governor of Delta State, Chief James Onanefe Ibori is an ex-convict or not.
All Nigerians and the world at large who have been following proceedings in the case are waiting for his decision in the matter.
The decision, if the case is eventually concluded, will definitely be as historic as the judge that makes it.
Again is the present push by Governor Ibori himself to commit to prison the Inspector-General of Police, Mr Tafa Balogun, for allegedly refusing to produce certain vital documents which he claimed he needed to prove to the world that he was never convicted in his life, capable of going all the way?
Murhktar is the judge Ibori is begging to send Tafa Balogun to Kuje prison.
Ibori, is contending in his application that the alleged refusal of police to produce the documents after Justice Murhktar had made an order to the effect qualified as a contumacious act to his authourities and that the police boss is liable.
Presently, the battle line is drawn between the following: The judge, the Inspector General of Police and Gov Ibori.
Scores of millions of people are also anxiously waiting to see if Justice Murhktar will be courageous enough, like few judges in the past, to stand his ground that his order must be complied with.
They also want to know if the judge will be gutsy enough to order the number one police officer in this country arrested and be bundled, like a common criminal, to Kuje prison should he fail to produce the documents
Ordinarily, these are crucial decisions to take, given the personalities concerned.
But legally, there is nothing special about them because a judge is expected to enter verdicts in cases before him based on material evidence led and not on the personalities involved.
This attempt is, therefore, not a foray into the likely decision of the trial court in the substantive case but an incursion into the law of contempt and its applicability in the Nigerian justice system.
Digging into history, there is no doubt about it that contempt is a living subject in the nation’s justice system and a number of important personalities in the country had been committed over it.
Statistical data indicated that majority of those committed for contempt in the past were Nigerians who were not in the employment of government.
In rare cases, an insignificant number of high ranking government officials were also committed but in most times were given an option of fine.
Besides, most contempt charges pursued to logical conclusions in the country today border on contempt in coram (in the face of the court) and not contempt outside the court.
And that is to say that there are two ways in which one could incur the wrath of a judge.
By a way of explanation, contempt in the face of the court refers to any act by anybody within the court room constituting insult to the presiding judge or any behaviour that tends to lower the authourity or dignity of the court.
But contempt outside the court refers to an attempt by an individual or group of individuals, corporate bodies inclusive to destroy the subject matter of any on-going litigation before the court. It is an act suggesting how the court should decide the matter before it.
Whether contempt in the face of the court or outside the court, it is the judge who decides what amounts to contempt in his court
It is punished not to boost the person of the judge but to preserve the authourity of the court for the benefit of the public.
For the former (contempt in coram), notable among those that had been committed in the history of the Nigerian legal system is the radical Lagos lawyer, indefatigable human rights activist and irrepressible crusader of masses’ interest–Chief Ganiyu Oyesola Fawehinmi (SAN).
Chief Gani was not a government official.
He was committed by Justice Ligali Ayorinde, former chief judge of Lagos state, to one year imprisonment.
The background to his committal was that Gani was an attorney to Mr Femi Falana in a case he instituted against former Military President, Ibrahim Badamosi Babangida before a Lagos high court presided over by Justice Ligali Ayorinde, challenging his (Babangida) dissolution of the then AFRC.
The judge, now of blessed memory, threw out Falana’s suit saying President Babangida was like “Kabiyesi” whose decision could not be questioned.
Not only the applicant, Mr Falana but also his lawyer, Chief Gani disagreed with the verdict of the court.
Shortly after, Chief Gani himself instituted another suit before a Lagos high court challenging another policy of President Babangida-led regime which Justice Ligali Ayorinde wanted to hear.
The radical Lagos lawyer objected to his hearing the case in view of his far reaching ruling in a sister case to the effect that President Babangida was like “Kabiyesi” (king) whose decision could not be queried.
He had told the judge that if he should allow him sit on the matter, he alleged he would only get judgment and not justice.
Justice Ligali Ayorinde considered this as an insult and tried Chief Gani for contempt.
Interestingly, Chief Gani left home on the day the case was to be heard with his towel, sponge and necessary things he would need in prison should the judge take offence in what he would say and decide to jail him.
There are other few instances where important individuals who are not holding public offices were so jailed in respect of contempt in coram.
Even few people that were committed to prison on account of contempt outside the court are mostly Nigerians who are not holding public offices.
For instance, four journalists of the Independent Communications Network Limited (ICNL) including Dapo Olorunyomi were committed to prison in Lagos by Justice Moshood Olugbani over certain publication in the News magazine.
ICNL is the publishers of the News Magazine, Tempo Magazine (now rested), A.M News (also rested), P.M News.
One of the few government officials committed to prison over contempt outside the court was the former Ondo State Electoral Commissioner, Chief M A Adegboroye but he was given an option of fine.
He was committed at the time by the then Chief Judge, Justice Akinola Aguda for flouting his order in a case brought by Mr Afe Babalola (now Chief Afe Babalola SAN) challenging his disqualification as candidate for Ekiti Central in Ondo State Constituent Assembly.
The point being made is that it is rare to commit to prison for contempt in the face of the court or outside the court where high ranking government officials like the Inspector-General of Police, are involved.
Suffice it to say, individuals who are not holding important office in government hardly defy court orders. This is because if they do, they will be jailed.
Which explains why there are scores of unexpecuted judgments against both state and Federal Governments today in the country and no one is being committed to prison for treating the orders of the court with levity.
Statistical data, of course, indicate that it is only governments and their top officials that brazenly flout court orders with impunity.
History also reveals that it is only the daring, the gutsy, the plucky and the audacious among the judges that can look up to the executive and spit at their faces where their orders have been so flagrantly treated with disrespect.
Which is why insinuations are growing thick in the air that the on-going move to commit the Inspector General of Police for failing to produce certain documents as ordered by Justice Murhktar of the Abuja high court may soon be aborted.
But the preponderant view among the keen observers of the on-going identification trial is that Justice Murhktar is a bold judge who can really commit Tafa if the evidence before him indicate that he was aware of his orders and that he decided to treat them with levity.
They had pointed to his several appeals to the police representative coming to court, DCP Columbus Okaro to get the documents produced.
Of course, the judge had had to tackle Okaro in the open court that if indeed these documents really existed, the police must produce it in the spirit of fair hearing and natural justice.
Singling out an interim report by the Inspector-General of Police to President Olusegun Obasanjo on the investigation conducted by the police on an allegation by Governor Ibori that his political opponents were out to destroy his political career, the judge had insisted that since there existed the report which was sent to Obasanjo, it must be produced in court.
His argument was that although he was not particularly interested in any document but that since the prosecution had presented its case, the defence should not be frustrated to present its, stressing that the documents which counsel to Ibori claimed constitute Ibori’s tool of defence should be released.
Okaro, upon the insistence of the judge had promised to go back to the headquarters to search for the documents and produce them, if found.
But at the resumed hearing of the case after the court’s annual vacation in September this year, Okaro had told the court in a clear term that the documents could not be traced.
Specifically, he said the police casefile in CR/81/95 between the state and one James Onanefe Ibori was missing. All documents in the file including statement of the accused person, the First Information Report in respect of the case are also missing.
He had further told the court that the controversial interim report dated February 14, 2003 by the police addressed to President Olusegun Obasanjo on a petition by Governor James Ibori alleging that some of his political opponents super-imposed his names on a criminal charge sheet in order to portray him as an ex-convict and ruin his political career could also not be traced.
All these documents were required by embattled Governor of Delta State, Chief James Ibori to prove his innocence that he was not the one convicted by Justice Awwal Yusuf of the Upper Area Court, Bwari on September 28, 1995 over a compound charge of criminal breach of trust and negligent conduct.
But Okaro had cheered Gov Ibori up in court by saying that the police had another report tagged “Final Report” which accommodated every detail contained in the interim report and that he could use that to do his defence.
Okaro, by his explanation, had concluded that there was no way the police could produce the certified true copies of documents that could not be traced.
This declaration therefore sealed any hope that all the documents being requested by Ibori’s lawyers would ever be produced.
But the popular view is that all the documents which the police claimed had grown wings are with them.
It is the contention of many that the police authourities are unwilling to release them for reasons beyond their powers.
The insistence of the police that the documents were missing made Gov Ibori to opt for the committal of police overall boss, Mr Tafa Balogun.
This is to say that he does not believe that the police were saying the truth.
However, all these would not make any sense to Chief Gani Fawehinmi (SAN) counsel to plaintiffs in the case.
To him, all the documents being requested for by Governor Ibori were about conviction of one James Onanefe Ibori on September 28, 1995 which, in his view had been resolved by the Supreme court.
According to Chief Gani, what the Abuja high court is asked to do by the Supreme court is to identify the James Onanefe Ibori that was convicted in 1995 and not whether any James Onanefe Ibori was convicted.
His argument too would not make any meanings to the Governor Ibori camp.
According to the Delta State Governor’s lawyers, it is not for Chief Gani Fawehinmi to do their defence for them. They said they were at liberty to request for any documents that they felt would help their case.
In fact, according to the incumbent Attorney-General of Delta State, Prof Amos Utuama, “these documents being requested for are our instruments of our defence. We should be given fair hearing by having these documents released to us.
“Of course, we will not allow anybody to stampede us. We are not progressing except the documents are produced and that is not to say that we want to delay trial. This is because of every application we have made to court since this trial began, we have been justified by the ruling of the court.
“Virtually every ruling delivered in this case has been in our favour. Gani cannot do our case for us. He is supporting the Inspector-General of Police and he is not his lawyer. If he wants the Inspector-General of Police to brief him, he can do so. As far as I am concerned, he is a meddlesome interloper,” he said.
While one may wonder why the defence was insisting that without the documents, there would be no progress in the case, it is reasonable to agree with counsel to Governor Ibori that they are at liberty to request for any document that would help their case.
Be that as it may, the present impasse has not only complicated the work of Justice Murhktar but has set the entire judiciary on trial in that people are waiting and watching what the position of the judge would be should Tafa Balogun refuse to produce these documents.
At least for now, legal fireworks had already commenced by Governor Ibori’s counsel to push for Tafa’s committal and the judge is, presently, willing to hear the application to ensure that his orders were complied with.
All prerequisites for the committal had been met at the weekend including serving Tafa, afresh the court order in the case through substituted means as prescribed by law.
Tafa had also been served FORM 48, notifying him of the consequences of failing to obey the court order served on him afresh in the matter.
Should Tafa fail to produce the documents on Monday , that would mean that Governor Ibori would move ahead to file FORM 49 against him praying the judge to commit him to prison for not obeying the court order.
But the question is: can the documents being requested ever be produced in court in view of the fact that a senior police officer, Okaro had come to court to say that they could not be traced?
Assuming the police boss eventually comes to court to re-echo what Okaro had said that the documents cannot be traced, can the judge sanction Tafa for allowing documents in his custody to grow wings?
Again, is it not possible that the judge, like majority of judicial officers faced with this kind of dilemma, could hang on a technical point to refuse moving against the police boss, being a high ranking government official?
Is it not possible that the committal proceedings itself may not see the light of the day, given precedence?
These are few of sundry questions on the lips of Nigerians and others around the globe following the proceedings.
These question are to some extent justified because the other day, for instance, Chief Judge of the Federal high court, Justice Roseline Ukeje was faced with similar challenge in a suit brought by the Federal Government this year to stop Nigeria Labour Congress (NLC) from going on strike for hiking prices of petroleum products.
Ukeje gave an interlocutory order restraining labour from going on strike and another order directing the Federal Government to reverse prices of petroleum products to pre-fuel tax rates pending the determination of the substantive suit before her.
But the order was not only flouted, the Federal Government also jerked up the prices of the petroleum products shortly after.
The trial judge expressed revulsion at it and hinted that should NLC bring contempt proceedings against the Federal Government, she said she would ensure strict compliance with her order or make a scapegoat of the erring party.
But when lead counsel to NLC, Mr Femi Falana commenced the contempt proceedings against the Federation Attorney-General and Minister of Justice, Chief Akin Olujinmi (SAN), the trial judge developed cold feet.
The application for the committal of the Federation Attorney-General was not heard till date.
According to a member of the inner bar, Chief Chris Uche (SAN), when top government officials are involved in acts of disobedience of court order and committal proceedings have been initiated against them and concluded, in so many of such instances , there have always been some kind of interventions that will prevent the processes from reaching their logical conclusions.
And in some cases too, you noticed that some of our judges, in order not to incur the wrath of the executive, are very reluctant to deal decisively with instances of disobedience of court orders by high ranking government officials or by the government itself.
And they therefore find one flimsy, technical excuses or the other to refuse the application for committal.
He said some of them have not been helping matters by not coming down hard on those who disobey court orders because they are government officials or otherwise. The law has made provisions for how disobedience to court order can be handled——committing contemnors to prison for disobeying court orders .
And these provisions are there for the maintenance of the dignity and integrity of the court and until our judges start to sternly punish proven cases of contempt of court, no matter the status of the contemnor, Nigerians will not take the issue of disobedience of court orders seriously.
This is because when disobedience of court order is not punished, it tends to make people lose faith in the entire justice system and could make people resort to self help and in some cases to jungle justice.
The government must strengthen the judiciary by respecting its orders no matter whether it is in its favour or otherwise
The time has come for our judges to be courageous enough to punish contempt no matter the level of persons involved if we must strengthen the independence of our judiciary and respect for the rule of law.
Definitely however, Justice Murkhtar’s decisions on the two serious issues before him ––resolution of the identification trial and the committal proceedings against the IGP, will etch his name in the book of history.
