By Victor Sunday
In 1990, Chief Gani Fawehinmi, SAN, GCON was involved in the controversial legal battle surrounding the murder of journalist Dele Giwa. He had initiated proceedings seeking the prosecution of Col. Halilu Akilu and Lt. Col. A.K. Togun over Giwa’s death. But as the matter proceeded before Justice Ligali Ayorinde, Fawehinmi became convinced that the case was not being heard by a judge before whom he could obtain a fair hearing. So. he asked the judge to step aside and Fawehinmi sought the transfer of the case to another judge, alleging, in substance, that Justice Ayorinde had demonstrated a pattern of deciding cases in which Fawehinmi was involved against him and the government. But the judge did not receive the application as an ordinary complaint about judicial impartiality.
He regarded Fawehinmi’s conduct as contemptuous and then the confrontation escalated. On 4 January 1990, Justice Ayorinde, then Acting Chief Judge of Lagos State, convicted Fawehinmi and sentenced him to 12 months’ imprisonment for contempt of court. But Chief Fawehinmi appealed and this is where the story becomes even more interesting. The Court of Appeal was now being asked to decide whether the extraordinary power of contempt had been properly used against one of Nigeria’s most outspoken lawyers. The Court of Appeal ultimately set aside the conviction and imprisonment and from the case emerged a principle that remains important today: A lawyer is entitled to disagree with a judge and challenge a court’s conduct. Strong criticism does not automatically become contempt.
Where criticism is made fairly, temperately and in good faith, it does not become contempt merely because the judge dislikes what has been said. The underlying concern is whether the conduct interferes with or obstructs the administration of justice. But there is a boundary. A lawyer is an officer of the court and as a lawyer, you can fight the case, challenge the ruling, question the procedure, seek recusal where there is a proper basis. But do not turn the courtroom into a battlefield of personal insults. That is the delicate balance Fawehinmi v. State illustrates. The case also teaches something about judicial power that contempt is not supposed to protect the ego of a judge but it exists to protect the administration of justice.
This was what happened in Fawehinmi v. State (1990) 5 NWLR (Pt. 148) 42 (CA)
May the Future find you ready.
