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P. J. N. AZUBUIKE ESQ v. THE STATE

(2017) LPELR-42485(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of May, 2017

CA/PH/432/2007


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria


Between

P. J. N. AZUBUIKE ESQ - Appellant(s)

AND

THE STATE - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on Contempt of Court.
FACTS:
This is an appeal against an order of remand of the Appellant.

The Appellant in this appeal is a legal practitioner in the Chambers of Tony Momoh & Co. 13A Sylvia Crescent, Anthony Village, Lagos, representing the Plaintiff in Suit No. HOW/78/02 ANTHONY OPARA VS MORECAB FINANCE CO. LTD AND CHU & CHI LTD, that pended before Hon. Justice A.O.H. Ukachukwu of Imo State High Court, Owerri Division. The said Chambers (Tony Momoh & Co.) had taken over the conduct of the said case in December, 2003 from the former Counsel to the Plaintiff, who was Emmanuel C. Nwoye Esq, and at the time the Plaintiff had given evidence as PW2, but had not concluded it. Appellant was the lawyer assigned by the Chambers to conduct the case for the Plaintiff.

Appellant alleged that before he took over the case, the Plaintiff had expressed doubts as to the impartiality of the presiding Judge, but he tried to allay his doubts; to allow him (Appellant) go into the case. He said that although the trial judge allowed the Plaintiff to change Counsel on 24/5/2004, the trial judge had become so much impatient and hostile to the Appellant and his client, that it became difficult for him (Appellant) and the Plaintiff to put in the case of the Plaintiff before the Court; that the frustration and situation became worse, when the trial Judge decided to, wrongly, reject, vital and relevant document tendered by the Plaintiff, and yet, strangely, refused to make the document part of the Court%u2019s record, to enable Appellate Court have opportunity to review the Lower Court%u2019s decision on appeal. He said that it was when the trial Judge openly descended into the arena and started issuing very serious threats of personal bodily injury on Appellant, that Plaintiff was constrained to instruct his lawyers to apply to the Chief Judge for a possible transfer of the substantive suit to another Court. And in compliance with the instruction of the plaintiff, the Plaintiff%u2019s lawyers made a letter of transfer, dated 10/1/2006, to the Chief Judge, which letter was signed by the Appellant on behalf of the Chambers handling the Plaintiff%u2019s case; that based on this development, the Plaintiff brought before the lower Court, an application dated 20/1/2006, seeking for an order for stay of proceedings of the lower Court, pending the outcome of the said application for transfer pending before the Chief Judge; that when the said motion for stay of proceedings came up before the Court on 24/1/06, the trial Court did not allow Appellant to move the application. Rather, he ordered Appellant who attended the Court, from Lagos, to be remanded in Prison Custody, Owerri.

Appellant said the proceedings that led to the remand of Appellant was brief; that the learned trial Court, after confirming from the defence Counsel that they were served the motion for stay of proceedings and that they were ready to argue the motion, asked Appellant of the whereabout of the deponent to the affidavit in support of the motion (Mrs. Confidence Opara) who was the wife of the Plaintiff, and when the Court was informed that the deponent was not in Court, the trial Judge told Appellant to remove his wig and gown and enter the witness box; that he told the Court that as Counsel for the Plaintiff he (Appellant) was not supposed to enter the witness box serve as witness in the case; that the trial Judge then made the ruling, ordering the remand of the Appellant.

%u200BAppellant said all the lawyers in Court rose up in his defence and alerted the Chairman of the Nigerian Bar Association (NBA), Owerri (Mr. N.H. Nwankwo), who came and led other lawyer to plead with the Court to let Appellant go but the trial Court refused; that even the Administrative Judge of the Division intervened to persuade the trial Judge, but he rather quickly signed the remand warrant for the Appellant to be taken to prison; that upon the remand of Appellant, the Chairman of the Bar, Mr. N.H. Nwankwo, filed this appeal on behalf of Appellant. He referred us to the Notice of Appeal filed on 25/1/06. Also application for the bail of Appellant was filed on the 25/1/06 for the bail of Appellant. And Appellant was granted bail on the said 25/1/06, by Hon Justice Duroha %u2013 Igwe.




ISSUES:
Appellant distilled two issues for the determination of the appeal, namely:
(1) Whether the Appellant committed any act of contempt before the lower Court on 24/1/2006 that warranted the order of committal of the Appellant to prison custody.
(2) Whether the lower Court had jurisdiction and competence to hear and determine the allegation of contempt that did not occur before it and/or to make the order for remand as it made?


DECISION/HELD:
The appeal was held meritorious and was allowed. The order of remand of the Appellant was set aside .


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