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Freedom of expression and contempt of court: The justice Okon Abang’s order against channels in perspective

By Richard Akinnola

“It is not contempt of court to criticize the conduct of a judge or the conduct of a court, even if such criticism is strongly worded, provided that the criticism is fair, temperate and made in good faith”.

 

Nnamani J.S.C in  Sunday Okoduwa and 6 others v. The State  (1986) 2 NWLR (pt 76) 333 at 335

 

If there is one area of law that is so contentious, even in different jurisdictions, it is the area of contempt, particularly contempt  ex facie curiae  (outside the court). One school of thought believes that once a matter is  sub judice, there must not be any comment whatsoever, while the other school of thought believes that there can be comments on cases in court, as long as such comments do not prejudice the trial. I belong to the second school of thought, particularly on issues of public interest.

But it doesn’t really matter which side of the divide you belong in the argument, whether Channels Sunrise anchors were guilty of contempt or not, what I believe this development would engender is the development our laws. For the purpose of this discourse, I only limit myself to Channels and the order made by the judge.

Justice Okon Abang had ordered the Attorney-General of the Federation to arraign the three anchors of the Sunrise programme to determine whether the questions asked by the anchor persons and the answers given by their guests were contemptuous or prejudicial to the proceedings. This aspect, no doubt, is astrange one regarding media practice and the law.

If certain laws are not tested, they remain where they are, just as Lord Denning posited thus: “What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law would stand still while the rest of the world goes on, and that would be bad for both” –  Parker v. Parker  (1954) All ER 22.

Some examples would suffice. In the 80s, when Nigeria was under the military

Government, series of cases were filed again Detention of persons decree no. 2 of 1984, despite explicit provisions purportedly ousting the courts jurisdiction. To the credit of some of the judges, some of these detention orders ere struck down by the courts. And also to the credit of Chief Gani Fawehinmi, his case against General Sani Abacha, which he fought up to the court of appeal, has redefined the issue of  locus standi, same way his case against Akilu and Togun on the issue of the murder of Dele Giwa, which the Supreme court held that he had locus standi to privately prosecute the security Chiefs, after the lower court had described him as a “busy body”.

Coming back to the issue of contempt, l would make reference to three cases in which Gani was involved.

First, when General Babangida came to power, he set up the Justice Samson Uwaifo panel, to look into the cases of those detained by the previous administration. Two of the cases were those of former president, Shehu Sgagari and his vice, Alex Ekwueme. Uwaifo panel recommended their release.  Newswatch  magazine did a story on it and Ray Ekpu, in his column lampooned the panel, in a piece he titled “The Hollow ritual”, where he referred to the Uwaifo panel as a Kangaroo tribunal.

A livid Justice Uwaifo summoned them for contempt.

On the day they appeared in court, he asked that all of them be remanded in prison custody till he was ready to hear their matter.

Counsel to the journalists, Gani Fawehinmi countered the judge, saying it would be unconstitutional to send them to prison when the maximum penalty for the alleged offence was just N20.

Fawehinmi sad: “ My Lord, there is no law in Nigeria that gives you the power to send these journalists to prison. The power you are relying on is not known to the constitution.”

Uwaifo, who later became one of our best judges in his time, retorted: “I am not following any constitution”.

As he heard this, a surprised Fawehinmi packed his books and files to storm out of the tribunal, exclaiming as he gesticulated : “I am amazed. I am shocked and l am disappointed!!!

Realising that he had overreacted, the judge now stood the case down till afternoon of same day.

At the resumption of hearing, he freed all the other journalists except Ekpu who he fine N20 when he said: “Learned counsel to Mr Ekpu submitted that no contempt, in any event, has been disclosed by these remarks. He addressed us very boldly on the issue of contempt. We find, however, that the main point is the prejudicial remarks that the panel was like a kangaroo court. This, in our view, is not criticism, but a calculated attempt to destroy the very basis of the proceedings at the inquiry..We therefore find Ray Ekpu guilty of contempt in accordance with the provisions of section 11(i) (b) of the Tribunal of inquiries Act 1966. He is fined N20.”

Fawehinmi appealed this conviction and it was set aside.

Also, during the military government, a particular judge in Lagos judiciary, Justice Agoro, was then the number 2 in hierarchy to the Chief Judge, Candide Ademola-Johnson and had acted as the Chief Judge each time Justice Johnson went on vacation. But Justice Agoro later gave some rulings against the government. So, when next the Chief Judge went on vacation, instead of Agoro J. toact, the government brought Justice Adebayo Desalu, who was number five in hierarchy to act as the CJ. Gani went to court through a lawyer his chambers, Adeleke Sanusi to challenge this. During the pendency of the case, Gani granted press interviews and also produced a leaflet which was shared in the court premises and everywhere, hammering on the injustice meted to Justice Agoro. The government accused Gani of contempt, but Gani countered that he was not prejudicing the case but was adumbrating on a matter of public interest.

Also in 1988, after Justice Longe of Ikeja High court dismissed the criminal charge filed by Gani Fawehinmi against two security Chiefs in Babangida government, who he accused of the assassination of Dele Giwa, he addressed the press at the court premises, where he described what happened in court as ‘an alawada comedy sketch”.

He was then charged to court, along with the Editor of Punch, Najeem Jimoh and his reporter, Tayo Tiwo, for contempt, under section 133 of the Criminal code.

Gani filed an application to quash the charges and he eventually won on appeal.

I have gone this length to show that the latest development is good for our jurisprudence, because when this gets to appellate court, a definitive decision is made on this issue on the responsibility of the press vis-à-vis the law of contempt.

The social responsibility of the press in commenting on issues of public interest has often been circumscribed by certain legal constraints that can sometimes be termed as  “legal Censorship”.

The press owes it a duty to the public to comment on cases in court, irrespective of the issuance of a writ, as long as such comments do not prejudice the case. For over two decades, l have been privileged to maintain a law column in newspapers where l often analyse both old and pending cases, to the admiration of many judges. And l have never been cited for contempt nor sued for libel.

However, it is pertinent here to first take a look at Section 133(4) of the Criminal Code as it relates to comments on pending judicial proceedings.

It states: “Any person who, while a judicial proceeding is pending, makes use of any speech or writing, misinterpreting such proceedings or capable of prejudicing any person in favour of or against any person before whom such proceeding is being heard or taken… is guilty of a simple offence and liable to imprisonment for three months:”

In other words, the following conditions should be present: There must be a pending judicial proceeding.

The offender must have made use of any speech or writing misinterpreting such proceeding or capable of prejudicing any person in favour of or against any party to such proceedings;

The write up must have been calculated to lower the authority of the person before whom such proceeding is being heard. Contempt can either be committed  in facie curiae  (that is, in the face of the court or  ex facie curiae  (out of the face of the court). In the case of  in facie curiae, the court has the power to deal with it summarily because it is a contempt committed right in front of the judge; he needs no other evidence or witnesses.

However in the case of contempt  ex facie curiae, these include when a writer misinterprets judicial proceedings or when a write up is capable of  “prejudicing any person in favour of or calculated to lower the authority of any person before it when such proceeding is being taken or heard or commits any act of intentional disrespect to any judicial proceedings or to any person who such proceeding is being heard or taken”.

In  Akinrinsola v. A-G Anambra State (1980) 2 NLR 17,  the court held that a publication of a general comment on the matter which is related to a court proceeding presided over by a judge and without any specific reference to the court trial cannot be held to be contemptuous of the court.

Justice V.J Chigbue in  Bello v Sanni(KDH/1/81, posited that matters of public interest should be open for discussion notwithstanding the issue of writ. Contempt, he explained, is not committed unless there is a real and substantial prejudice to a pending litigation which is actively before a court.

This was a case in which the Deputy Solicitor -General of Kaduna State brought to the notice of the court a publication in National Concord of March 16, 1981 with the headline “Forces behind Musa Recalcitrance” being part of text of a press conference held by Chief A.M.A Akinloye then chairman of the defunct National Party of Nigeria (NPN).

The story came out during the pendency of a case against Alhaji Balabare Musa, then Governor of Kaduna State. The defendants felt that the text of the press conference was contemptuous.

But Justice Chigbue stated that contempt is not committed unless there is real and substantial prejudice to pending litigation.

Having read the text of the press conference, the judge said: “It makes no reference or comments on the instant case in any way to show that there are real and substantial danger of prejudice to the fair trial of action”.

The judge went on to lay the basis of press freedom. He said:  “I hold that there is something far more important in the publication. It is freedom of speech, the inalienable right of every citizen and the press to make fair comments, even outspoken comments on matter of public interest. This is one of the bedrocks of our individual liberty- freedom of speech as entrenched under Section 36 of the Constitution of the federal Republic of Nigeria, 1979”.

In  R.v.. Metropolitan Police Commissioner, Ex parte Blackburn (No. 2) (1968) 2 QB 150, Lord Denning MR held: “It is the right of every man in parliament or out of it in the press or even the broadcast, to make fair comment, even outspoken comments, on matters of public interest”.

Lord Salmon, in agreeing with Lord Denning in the case posited. “It is the inalienable right of everyone to comment fairly upon any matter of public importance. This right is one of the pillars of individual liberty- freedom of speech ….no criticism of a judgment, however vigorous can amount to contempt of court providing it keeps within the limits of reasonable courtesy and good faith. The criticism here complained of, however rumbustious, however wide off mark, whether expressed in good taste or in bad taste, seems to me to be within those limits”.

This position was well adumbrated in the case of  Thompson v Times Newspaper Ltd  (1969) 3 ALL ER 648 at 651where Lord Salmon held:

“It is a widely held fallacy that the issue of a writ automatically stifles a further comment. There is no authority that I know of to support the view that further comment would amount to contempt of court.

Once a newspaper has been justified and there is some prima facie support for the justification, the plaintiff cannot obtain an interlocutory injunction to refrain defendants from repeating the matters complained of. In these circumstances, it is obviously wrong to suppose that they could be committing contempt by doing so. It seems to me to be equally obvious that no other newspaper that repeats the same sort of criticisms is committing a contempt of court. They may be publishing a libel, and if they do so, and have a defense to it, they will have to pay whatever may be the appropriate damages; but the writ does not, in my views, preclude the publication of any further criticism.

It merely puts the person who makes the further criticism on risk of being sued for libel and he takes the same risk whether or not there has been any previous publication.

I appreciate that very often, newspapers wary about repeating criticism when a writ for libel has been issued because they feel they are running some risk of being proceeded against for contempt. Without expressing any final view, because the point is not before this court for decision, I think that in this, they are mistaken. No doubt, the law relating to contempt could and should be clarified in this respect.”

This position was given a seal of approval by Lord Denning MR in the case of  Wallersteiner V. Moir  (1974) 1 WLR 991on what was termed by the court as “gagging writ”. “Gagging writ” is a writ filed by someone to put a stop to public debate of an issue without the Plaintiff necessarily prosecuting the suit by hiding under the concept of Subjudice.

In this case, a company Director, in an attempt to stop a complaining shareholder at a shareholders meeting issued a writ to shut up the shareholder, stating the matter was Subjudice.

But Lord Denning again held that matters of public interest should be and are open to discussion notwithstanding the issue of writ.

“So here I would hold that a discussion of company affairs at a company meeting is not a contempt of court. Even if a writ has been issued and those affairs are the subjects of litigation, the discussion on them cannot be stopped by the magic words ‘Subjudice’.

It may be there are newspaper reporters present- so that the words will be published at large the next day. Nevertheless, the shareholders can discuss the company affairs quite freely without fear of offending the court. Such discussion does not prejudice fair trial of the action. No judge is likely to read the Newspaper reports, let alone be influenced by them.”

Lord Salmon in the Law of contempt in Relation to Tribunals of Inquiry (Report of the Inter-departmental Committee on the law of contempt as it affects tribunals of inquiry)held:

“Court law of contempt does not prevent comment before the litigation is started, nor after it has ended nor does it prevent it when the litigation is dormant and not being actively pursued… no person can comment by serving a writ and letting it lie idle nor can he stop it by entering an appearance and doing nothing more.”

Writing in an article titled  “The Judiciary in an Era of Law Reform,(1966) Political Quarterly 378, Bloom Cooper posited: Criticism of the judiciary over the last 50 years has been compared to conversations over the coffee cups and to the seclusion of private solicitors offices and barristers’ chambers. The English have cloaked their judges with immunity from public criticism which tends only to diminish the quality of justice administered by those so privileged.”

Prof. J.C Smith (1982) Crim. LR 744, added his chorus when he stated :  “ Arguably, proceedings are not ‘Impeded’ or ‘prejudiced’ by a discussion in good faith of issues of principles, even if it is intended to influence the court to reach a correct’ decision. Many commentaries on decisions of the court of Appeal published in This Review have been written in the hope they might influence the House of the Lords, either directly or through their adoption by counsel, to reach a particular decision and have not (so far) been treated as contemptuous. If, in the course of the published debate following the acquittal of Dr Arthur, a similar charge had been brought against another doctor, would it have been necessary to suspend the debate? It is submitted that it would not.”

However, these judicial opinions on matters in court are however for persuasive effect and are without prejudice to the law of contempt in cases where the press scandalizes the court, because if you cross the red zone, you have to face the music – see the case of  R.V. Gray  (1900) 82 LT 534where the Editor of Birmingham Daily Argus published a scurrilous attack on a judge after the judge warned reporters not to publish what was considered offensive evidence in a trial before him.

Said the newspaper: “  If anyone can imagine little Tich upholding his dignity upon a point of honour in a public house, he has a very fair conception of what Mr Justice Darling looked like in warning the press against printing of indecent evidence.

No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr Justice Darling exempts.

There is not a journalist in Birmingham who has anything to learn from the imprudent man in horsehair, a microcosm of conceit and empty headedness… one is almost sorry that the Lord Chancellor had not another relative to provide for on the day that he selected a new judge from among the larrikins of the law.

One of Mr Justice Darlings biographers states that an ‘eccentric relative left him much money.’ That misguided testator spoiled a successful bus conductor. Mr Justice Darling would do well to master the duties of his own profession before undertaking the regulation of another.”

The court held that this was no criticism but “personal scurrilous abuse of a judge as a judge” which amounted to contempt and he was fined 100 pounds.

Finally, I end with this admonition:

“  A Judge must be endowed with patience that is coupled with judicial dignity and tolerance to face extremely irritating situations. A judge must display dignity, maturity and kindness. An impatient judge is no judge. He can never be in control of his court. Impatience can lead to precipitate action. It is always better and safer to ignore little details, discourtesies.” – Hon. Justice M.I. Edokpayi, a former Chief Judge of Edo State, in a paper titled  “IS IT CONTEMPT OF COURT OR ABUSE OF JUDICIAL POWER?”

 


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Comments expressed here do not reflect the opinions of vanguard newspapers or any employee thereof.