Law & Human Rights

May 20, 2010

Magistrate Bashir no longer fit to remain on the bench – Ozekhome, SAN

By Ise-Oluwa Ige

At about 11:25 am, last Monday, Chief Magistrate Zainab Bashir of the Federal Capital Territory Magistrate Court, Zone 6, Wuse, Abuja, ordered out all journalists in her court room. That was after sounding a warning that never again should any journalist come to her court to cover proceedings without clear permission from her.

The newsmen, whom she ordered out of her court room, were from both the print and the electronic media houses. They had stormed the court as early as 8:00am on the fateful day to cover proceedings in a N7.5billion fraud case allegedly perpetrated by officials of Zenith Bank in Area 7, Garki, Abuja against one of its corporate customers, Aso Savings. The matter had been successfully kept away from the prying eyes of media men for some time until last Sunday when an aggrieved party in the case sent invitations to media houses alerting that the case would be heard in Chief Magistrate Zainab’s court on May 17, 2010.

Reporters and photo-journalists from various media houses honoured the invitation and came early to court to take their seats. Unconfirmed sources said that the Chief Magistrate had interest in the case and was not comfortable with the journalists in her court room.

Ozekhome, SAN

Although courts, nationwide, including the Supreme Court, sit by 9:00am, Chief Magistrate Zainab did not resume duty until few minutes on 11:00am. And when she sauntered in, more than two hours behind schedule, Mrs Zainab did not offer any explanation or apology for her lateness to counsel, litigants and journalists, waiting for her, as it is done by judges of superior courts of records, when they occasionally sit late.

All that the Chief Magistrate did was to harass the newsmen who were patiently waiting for her arrival by issuing an order directing them to walk out. Her explanation for issuing out the order was that journalists had, three years ago, messed her up.

She was glad to narrate the messy story, in the open court, about how she was reported by the Nigerian Press, three years ago, to have caused several body injuries to her niece/house help on the mere suspicion that she (the niece/house help) was having an affair with her husband. She said that the Press also reported that she did not stop at that but proceeded to the Federal Medical Hospital, Garki II and fought with her niece/house help in full public glare. She added that the entire report was not only pure falsehood but fabricated.

“I have a strong hatred for Journalists. I had a bitter experience from them before. They have never been my friend and I have nothing to do with them even now and in the future and no Journalists can claim to be my friend,” she had said. But as she got to this point of her narration, she lost her tempers and asked all journalists in her court room to leave immediately. Facing her Legal Assistant, she asked:  “Where are the Journalists? Fish them out. They should leave my court immediately. “What are you people doing here? What do you want here? How can you come here without my rmission.”

But a former Supreme Court Judge, Justice Nnaemeka Agu had, 24 years ago, observed while sitting at the Court of Appeal bench, that no journalist needed any permission to cover any court proceedings.

In fact, Justice Nnaemeka Agu said that not even could anybody stop journalists in prying into sensitive documents filed at the registry of the nation’s courts. According to the judge in the case of Daily Times of Nigeria Vs Williams reported in 1986, 4NWLR, Part 36, Page 530, he said: “Government and public institutions conduct their affairs in the glare of publicity in Nigeria where the principle of accountability is becoming part of the doctrine of running governments and public institutions and in which open government is being advocated as a deliberate policy. I do not personally think that what happens in the registries of a court should not be subject to the searchlight of newspapers.

“The spectacle of a nosy journalist, out to make his newspapers sell, by scooping scandals that have crept into documents filed in the registry may be an ugly one but in the light of a duty cast upon the press to inform public institutions, it qualifies, in my view, not for censure but for commendation,” he had added.

But more than 20 years after this finding was made by a justice of an appellate court based on the provisions of the constitution, a judicial officer in the magistracy is still querying the wisdom in it. Mrs Zainab was of the view that permission must be obtained from her in this 21st century before proceedings in her court could be covered by journalists. And like somebody in a spiritual fit, she faced the open court and asked: “If you are a journalist, leave my court room now. That was how you people messed me up three years ago by reporting falsehood against me. If you are a journalist leave my court now,” she thundered. At this point, one of the senior reporters in court, Mr Lemmy Ughegbe of the Guardian Newspapers, stood up and faced the angry magistrate that they were not in court to play but to perform the sacred duty imposed on them by the 1999 Constitution of the Federal Republic of Nigeria.

Indeed Part II, Section 22 of the 1999 constitution guarantees the rights of newsmen to monitor governance including covering proceedings of public interest litigation like the N7.5billion fraud case in law courts. The section reads: “The Press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the Government to the people.”  In fact, section 1 (1) of the same 1999 constitution says: “This Constitution is supreme and its provisions shall have binding force on all authourities and persons throughout the Federal Republic of Nigeria,” meaning that even if it is a rule in Zainab’s court, the rule must bow for the provision of the constitution, being the grundnorm, the fon et origo.

Notwithstanding the provisions of sections 1 and 22 of the 1999 constitution, most of the newsmen in Mrs Zainab’s court room had become lily-livered and were filing out while Lemmy was still engaging her over her unconstitutional order. And as soon as Lemmy himself finished with his brief submission, he was on his way out of the court room when  Magistrate Zainab got angrier and ordered his arrest for what she called contempt in facie curiae (in the face of the court.) But Justice Obaseki, a retired Justice of the Supreme Court in the case of Obiora Vs Osele reported in 1989, 1NWLR, Part 97, Page 283 at page 295 had warned judicial officers against losing their tempers in the course of performing their judicial duties when he said:  “Judges should not lose their temper with counsel or litigant no matter how irritable they may be so that the composition required to administer justice may not depart from the temple of justice.”

Chief Magistrate Zainab did not stop at the arrest as she ordered her Orderly to handcuff the reporter who was evidently not running away. He was bundled like a common criminal into the dock. Happy Zainab who already had docked the Guardian reporter with the quasi criminal charge of contempt in facie curiae suddenly decided not to go ahead with his summary trial.

She said it was time for her to take her pounds of flesh for the alleged injury done to her by the press three years ago. She ordered Lemmy to step down from the dock, ordering him to be taken to Kuje prisons till the following day when she would hear the contempt charge against him, summarily. She said that sending him to prison in the first instance before the case was heard, would teach Lemmy and his fellow journalists the lessons of their life.

But Justice Pius Aderemi, a retired Justice of the Supreme Court, had while on the Appeal Court Bench, also warned against unwarranted arrest and detention, like the instant case when he said in the case of Comptroller of Nigerian Prisons Vs Adekanye reported in 1999, 10 NWLR, Part 623, Page 412 at Page 426 thus: “Freedom is no doubt the greatest gift or heritage of man. Omnipotent God created man and accorded him with divine freedom. Man is born free with liberty to think what he will, to say what he will and to go where he likes, all in a lawful manner, without let or hindrance from any other person, private or governmental authourities. “It therefore follows that generally detention of a man by a fellow man is a violation of the law of God and man. I am not oblivious of the fact that there are checks and balances to the services of freedom given to man….”

But Magistrate Zainab said she did not care what anybody would say. She said the handcuffed reporter must go to jail first before answering to the charge. Even though Mrs Zainab is enrobed with powers to punish anybody whom she believed in her judgment, had committed contempt in facie curiae, the question is: can she order a journalist doing his constitutional duty handcuffed and send him to jail without trial? Magistrate Zainab though was of the view that there was nothing wrong in doing that but Justice George Oguntade, who retired as Justice of the Supreme Court, would not agree with her.

He had warned judicial officers both at the trial magistracy and superior courts of record, 19 years ago, against abuse of their judicial powers to punish litigants in the case of Akwaneze Vs Tapp Industry Limited reported in 1991, 7NWLR, Part 202, Page 184 at Page 201 when he said: “The courts must be careful to see that their awesome powers are never used to intimidate litigants. There is a procedure for bringing those who run foul of the criminal law to book. “Even in cases of contempt in the face of the court which the court can punish summarily, there is still a procedure to be followed by a court of law.”

The procedure, of course, is that the alleged contemnor ought to be asked questions and must be allowed to defend himself in accordance with the principles of audi alteram partem, natural justice and fair hearing before dishing out any punishment. Although the trial Magistrate, Zainab said that her order stood, after the court rose, Lemmy’s colleagues created a scene on the premises of the Chief Magistrate Court when he was to be driven to the Kuje prisons, saying they would not allow such to happen. It took the intervention of some lawyers who appealed to the  Magistrate to reverse her order from her chambers without any formal application from the alleged contemnor. The Guardian reporter was later set free. The Magistrate also sent some of the colleagues of the handcuffed journalists to him to beg him after she became emotionally stable.

But before the Chief Magistrate Zainab could conclude her judicial gymnastics, the Chairman of the Abuja Chapter of the Nigerian Union of Journalists, Jacob Edi, had fired a petition to the Judicial Service Commission of the Federal Capital Territory headed by Justice Lawal Gummi asking for her sack.  The NUJ said the  Magistrate was not fit to remain on the bench for lacking in emotional stability. Edi, in his petition, reminded Justice Gumi led Judicial Service Commission of how the judicial officer embarrassed the judiciary, three years ago, by fighting her househelp in a public glare over the suspicion that the said house_help was sharing her husband with her.

NUJ is contending that the Judicial Service Commission should borrow a leaf from the National Judicial Council which sacked a Bauchi high court judge, Justice Shall for embarrassing the judiciary in the same way. The Union further said that the appointing authourities should in future consider emotional stability of qualified applicant lawyers before appointing them into the bench because of the embarrassment the Chief Magistrate has caused it. But the embattled Chief Magistrate, upon getting a copy of the petition by the NUJ, had gone on her knees, begging for forgiveness.

In fact, she promised to visit the Secretariat of the Abuja NUJ to beg at 4:00pm on Tuesday. But she later changed her mind perhaps on the advice of her colleagues. But given her temperament, alleged serial abuse of office, misuse of judicial powers and most importantly, her violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria, is Chief Magistrate Zainab still fit to remain on the bench? Prominent members of the inner bar including Chief Mike Ozekhome, SAN,  and Chief Chris Uche, SAN,  felt she is not and felt strongly that the appointing authourities  should take a radical step before a more suicidal judicial hara-kiri is committed by her.

In fact, Chief Ozekhome,  who disagreed with Chief Uche, on whether or not the treatment meted out to the Guardian reporter was actionable said that he would offer a pro bono service to Lemmy if he wanted to go to court.

According to Ozekhome, “the chief magistrate behavior was most erroneous and unbecoming of a judicial officer particularly of the lower bench.  “For a woman to declare the media her enemy, for a judicial officer to declare the media her enemy and that she does not want to see journalists in her court, shows that the woman has never read section 22 and section 42 of the 1999 constitution.

“It also shows the magnitude of the contempt she has for the people to know what goes on in her court of law.  That woman can be sued in the court of law because judicial immunity which she would likely hang her petulant and gross misconduct on covered her action only if she acted within her judicial powers. There is no judge or magistrate who has the powers to handcuff or denigrate any citizen of Nigeria outside the confines of her judicial authourity and power.
“By handcuffing Lemmy Ughegbe, a journalist of repute with one of the most reputable media houses in Nigeria, without any hearing at all, even when the journalists were already going out of her court on her instruction does not amount to performance of her judicial duties. As we say in corporate law, we can remove the veil of her incorporation. We can remove the veil of judicial incorporation from her and lay her bare to be dealt with by law. So, she was certainly on a frolic of her own and judicial frolic is not part of our legal system and jurisprudence.

“Even if she were to commit him for contempt in facie curiae (in the face of the court), she would still give her opportunity to defend himself for the fact that she never obeyed the hallowed rule of audi alteram partem, which even started from the Garden of Eden when God questioned Adam and Eve what they had done wrong. And for the fact that she even assumed jurisdiction to summarily try and jail the journalists when she was the one who was aggrieved, thus breaching the second pillar of natural justice, nemo judex in causa , no one must be a judge in his own cause. The combination of all these factors showed that the woman could be dragged to court to make restitution and reparations for her infamous and shameful gross misconduct.

“And the Judicial Service Commission (FCT) and the Nigerian Bar Association should take this matter very strongly and throw her out of the bench before she commits further judicial havoc.  Lemmy Ughegbe can go to court to sue her. He can ask for among other things that she is not fit and proper and competent to be on the bench and he can claim damages. I will act as his counsel free of charge,” he added.

Also contributing, Chief Chris Uche said: “it is an arbitrary exercise and abuse of her judicial powers. I think it was extremely unnecessary for her to have gone that far. Journalists have been known to have the right and freedom to cover proceedings from the Supreme Court through the Court of Appeal and to the various high courts, let alone a magistrate court.

“So I believe that it was a very wrong exercise of her judicial powers. It  But her action is not actionable since it was done in the course of her judicial proceedings. It is not. But it is a matter in which the judicial authourities must do something,” he added.