JOSEPH A. AGBACHOM v.THE STATE
In The Supreme Court of
Nigeria
On Friday, the 13th day of
March, 1970
Before Their Lordships
GEORGE BAPTIST AYODOLA COKER
Justice of The Supreme Court of Nigeria
IAN LEWIS Justice of The
Supreme Court of Nigeria
ATANDA FATAYI-WILLIAMS
Justice of The Supreme Court of Nigeria
Between
JOSEPH A. AGBACHOM
Appellant(s)
AND
THE STATE
Respondent(s)
(1970) All N.L.R 71
RATIO DECIDENDI
1. COURT - CONTEMPT OF COURT: Burden of proof in
contempt cases.
"To our mind, since a
contempt of court is an offence of a criminal character, it must be proved
beyond reasonable doubt. Therefore, where as in the present case, there are two
equally likely possibilities open to the court when considering the act
complained of, it is not proper to hold that the offence of contempt has been
proved beyond reasonable doubt. (See In re Bramblevale Ltd. [1969] 3 W.L.R. 669
at 705). This view is all the more important if we advert to the observation of
Lord Atkin in the Privy Council in Ambard v. Attorney-Generalfor Trinidad and
Tobago [1936] A.c. 322 at p. 335 which reads:- "But whether the authority
and position of an individual judge, or the due administration of justice, is
concerned, no wrong is committed by any member of the public who exercises the
ordinary right of criticising, in good faith, in private or public, the public
act done in the seat of justice. The path of criticism is a public way: the wrong
headed are permitted to err therein: provided that members of the public
abstain from imputing improper motives to those taking part in the
administration of justice, and are genuinely exercising a right of criticism,
and not acting in malice or attempting to impair the administration of
jus:-tice, they are immune. Justice is not a cloistered virtue: she must be
allowed to suffer the scrutiny and respectful, even though outspoken, comments
of ordinary men."and see also Lord Denning in R. v. Metropolitan Police
Commissioner [1968] 2 All E.R. 319 at 320. Both those cases deal with contempt
of court by statements in newspaper or other publications but they establish
clearly the principle that a court must be very careful in the exercise of its
powers to convict of contempt and to use it sparingly."Per LEWIS, J.S.C
2. COURT - CONTEMPT OF COURT: Whether an
averment/paragraph in an affidavit can amount to contempt in the face of the
court?.
"Whether a statement in
an affidavit before a court could amount to contempt in the face of the court
would depend on a number of circumstances such as the conduct of the deponent,
the reader of the statement and the circumstances of his reading. Counsel may
of course be liable for contempt in the face of the court for statements he may
make (See Vidyasagara v. The Queen [1963] A.C. 589). This would be for an act
done calculated to bring the court or a judge of the court into contempt or to
lower the judge's authority within what Lord Russell C.J. had laid down in R.
v. Gray [1900] 2 Q.B. 36 where at page 40 he said- "Any act done or
writing published calculated to bring a Court or a Judge of the Court into
contempt, or to lower his authority, is a con:-tempt of Court. That is one
class of contempt. Further, any act done or writing published calculated to
obstruct or interfere with the due course of justice or the lawful process of
the Courts is a contempt of Court. The former class belongs to the category which
Lord Hardwick L.C. characterise as range scandalising a Court or a Judge.' In
re Read and Huggonson (1742) 2 Atk. 291,469." Per LEWIS, J.S.C.
3. COURT - CONTEMPT OF COURT: Procedure of court in
hearing contempt cases
"The matter does not
rest there however as we must draw attention to the fact that the learned trial
judge seems to have been completely confused over the mode of procedure that he
adopted. At page 6 of the record to which we have referred it is stated
"the court has been put into a position it has to defend itself. I shall
put the deponent into the witness box," and this on any showing was a
quite wrong procedure. If the learned trial judge wished to deal with a case of
contempt in the face of the court summarily he should have put the accused not
in the witness box but into the dock and asked him to show cause why he should
not be convicted. He should not have compulsorily put him into the witness box
as apart from anything else that offended against section 22 (9) of the
Constitution of the Federation which reads-"No person who is tried for a
criminal offence shall be compelled to give evidence at the trial." The
learned trial judge himself drafted a charge and seems to have proceeded both
under his common law powers preserved by virtue of section 6 of the Criminal
Code Law and also under section 133 of the Criminal Code. The charge did not
specify under which provision the accused was charged. The learned trial judge
concluded his judgement with the words "for the reasons stated I find the
accused guilty" and thus did not state, as he should have done, under what
provisions he found him guilty. From the judgement which we have quoted it
appears to us that he purported to convict the accused under both his common
law powers and under section 133 of the Criminal Code. If the learned trial
judge was acting at all under section 133 of the Criminal Code then he was in
error as that should have been tried before a different court" Per LEWIS,
J.S.C.
LEWIS, J.S.C. (Delivering the
Leading Judgment)-In suit C/16/1969 in the High Court Calabar the accused was
charged with contempt of court in the following terms-
"In paragraph 5 of an affidavit in
support of a motion filed by your solicitor on 9-6-69 in suit No. C/16/69 in
which you are 2nd defendant you stated as follows:- .
' That the Oban (Nigeria) Rubber Estate
Ltd. paid to his Lordship the sum of N488:15s being balance out of 700 guineas
legal debt on the 10th day of April, 1969, out of the trust fund.
By that statement I understand you to mean
that I clandestinely while a judge collected the said sum without your
knowledge or authorisation and that what I call 'legal debt' is not in fact a
debt owed to me. This false imputation of yours has lowered the dignity and
authority that belongs to this court."
On the 24th of July, 1969 Bassey J., found
that the accused guilty and sentenced him to a fine of N75 or to imprisonment
for 3 months, and against that decision the accused has appealed to this court.
The charge arose because the accused was a
defendant in a civil action and through his counsel he applied by motion to
Bassey J. for an order to transfer the case to another judge and for the
purposes of that application the accused swore an affidavit which inter alia
stated:-
"3. That on the instructions we have
given to our solicitor, including documents submitted he has advised us and we
verily believe that he would serve a witness summons on his Lordship the judge
to give evidence in this suit.
4. That in particular in letter dated 20th
March 1968 addressed to the Oban people by Mr. P.O.E. Bassey (as he then was)
parts of which read as follows:-
'....In the 1950's I spent all I had on
a bogus lorry which Edet Asuquo went and bought for Oban. And although I have
appealed to the town several times in the past to refund my expenditure, nobody
paid any heed. As I have become convinced that some Oban people are always
interested in my downfall, I have decided to take steps to protect myself.
These people, will however, by the help of God never see my downfall... The
town has behaved to me as if I was her slave. Even those trained in other
places out of the funds of the people have not been treated with the spite,
malice, ill-will and ingratitude that Oban people have shown to me. I am now
determined that this will not happen again. I tendered professional advice for
the town to take legal steps to set aside the decision of the arbitrator yet my
advice was turned down for reasons best known to you. I have kept quiet all
this time because I felt you had no money. But now I am determined to recover
all my expenses, minus the lorry, from you people before you squander the next
rent. . . '
and in view of this my solicitor informs me
and I verily believe that it would not be proper for his Lordship to take this
case.
5. That the Oban (Nigeria) Rubber Estate
Ltd. paid directly to his Lordship the sum of #488'15s being balance out of 700
guineas legal debt on the 10th day of April 1969 out of the trust fund."
When the application came before Bassey J.
there was argument on whether the affidavit contained sufficient material to
warrant the application being granted and after hearing counsel on both sides
Bassey J. according to the record apparently said -
"For 1st defendant to say he is
Oban and Oban is himself is a fact which should have been alleged in the
affidavit. The court has been put into a position it has to defend itself. I
shall put the deponent into the witness box"
and then the learned trial judge put the
accused in the box and it would seem himself examined him as the record reads -
"I live at Oban, farmer. I see this
letter. It is the letter quoted in my affidavit. Mr. Oku has not objection. Mr.
Okon has no objection. Letter admitted exhibit 1.
Look at this document: is that the
authority you gave to Oban (Nigeria) Rubber Estates Limited to pay 'a3488 15s
to me. Yes. Mr. Oku has no objection. Mr. Okon has no objection. Admitted
exhibit 2.
Exhibit 2 was given in respect of
arbitration you conducted for Oban while you were a practising lawyer. It is in
respect of final payment of professional fees. XXM by Mr Oku: I was not
compelled by my counsel to make the affidavit in support of my application. XXM
by Mr. Okon: No question."
The learned trial judge then apparently himself
drafted the charge to which we have earlier referred and after asking the
accused if he had any:-thing to say why he should not be punished for contempt
he granted the accused an adjournment to consult his counsel and the next day
the accused pleaded "not guilty". Mr. Oku who was counsel for the
accused then objected to the charge on the ground that the accused could only
be tried on indictment or information and after reserving his ruling to the
following day
Bassey J. gave it then and concluded by
saying -
"It is my view that an affidavit
before the court that amounts to contempt of court is as much contempt before
the court as any other act before the court. Besides, it appears to me that
information or indictment need not be resorted to if it would be calculated not
to serve the end of justice. I therefore rule that the court could proceed by
summary trial in the case."
Then once again it appears the learned trial
judge began to examine the accused as the record reads- '
"This is the authority Oban people
gave to the Oban (Nigeria) Rubber Estate Limited to pay you #488'15s signed it.
Mr. Oku has no objection. Authority admitted as exhibit 1.
Mr. Oku wishes to tender statement of
account between Oban people and Oban (Nig.) Rubber Estate Ltd. Admitted and
marked exhibit 2. Mr. Oku tenders another letter which he said he received from
the Registrar of the High Court, admitted and marked exhibit 3. Mr. Oku addresses. Paragraph of the
affidavit of 5-6-69 was made in good faith stating the facts which are quite
correct.
Mr. Oku seeks to tender a copy of the
affidavit in question. Affidavit admitted and marked exhibit 4.
Paragraph 5 of exhibit 4 is intended to
roundoff a statement in paragraph 4 of exhibit 4. In exhibit 2 it is shown that
the sum of 488:15s paid by Oban (Nigeria) Rubber Estates Ltd. has been
accounted for.
Looking at paragraph 5 of exhibit 4 I would
submit that it is an innocuous statement of facts which existed then.
Court: Mr. Oku look at the paragraph 5 of
exhibit 4 without indicating that the money was paid by their authority, does
it not give a reflection.
Mr. Oku: I now see your Lordship's point
and I am sorry. No reflection at all was meant.
In his judgement on the 24th of July, 1969 the
learned trial judge after setting out the charge said-
"It appears to me this is an
imputation of misconduct. Exhibit 1 tendered in the proceedings and which was
signed by the accused himself with others shows that the sum arose out of
balance of the professional fees of 700 guineas and its payment was authorised
by the exhibit.
The exhibit reads as follows-
'Oban People
Oban Town,
Calabar.
14th August, 1968.
The Senior Manager,
Oban (Nig.) Rubber Estates Ltd., Oban Town,
P.O. Box 236,
Calabar.
Dear Sir,
Authority
We the undersigned, for ourselves and on
behalf of the people of Oban Town, hereby authorise you to pay on our behalf
from the 1968 land rent due to us the sum of #488:15s (four hundred and eighty
eight pounds, fifteen shillings) to Mr P.O.E. Bassey, being fees owed to him by
us for his professional services.
On payment of the said sum to Mr. Bassey,
you will accordingly deduct the money from the 1968 rent. This could be done by
sending you a receipt as if the money was paid to us.'
At the foot of the exhibit appear the
following: 'Copy Mr Bassey for information please.'
Exhibit 2 tendered by accused clearly shows
that they are aware that the sum in exhibit 1 had been paid and that they had
complied with their stipulation in exhibit 1 as regards the payers.
The offending affidavit was admitted as
exhibit 4. Is this contempt of court and is this contempt in the face of the
court?
Section 133 of Cap. 30, Laws of the former
Eastern Nigeria, 1963, still applicable to the South-Eastern State of Nigeria
by virtue of section 1(5) of the States (Creation and Transitional Provisions)
Decree, 1967, in part reads as follows:
Any person who
(a)
(b)
(c)
(d) While a judicial proceeding is pending,
makes use of any speech or writing, misrepresenting such proceedings, or
capable of prejudicing any person in favour or against any party to such
proceeding, or calculated to lower the authority of any person before whom such
proceeding is being had or taken is guilty of a simple offence, and is liable
to imprisonment for three months.
I think this false imputation was
calculated 'to lower the authority of' the person before whom the proceeding in
the application by the defendants for the transfer of the suit to another court
was pending.
Quite apart from the above section s. 6 of the
Criminal Code Law, Cap 30 retains the inherent jurisdiction of this court to
punish for contempt of its authority.",
and concluded his judgement by saying -
"Mr Oku in his address said
paragraph 5 of exhibit 4 was a rounding off of what had been said earlier. He
further submitted that the para:-graph was made in good faith, stating facts,
and no harm was meant. That may well be so, but harm has been done and mens rea
is not a constituent of criminal contempt: Reg. v. Odhams Press Ltd. [1956] 3
All E.R. 494.
The purpose of the affidavit and paragraph
5 in particular of exhibit 4 was to obstruct or delay the hearing of the case;
for up till now pleadings have not been ordered in the suit.
I hold that a contemptuous affidavit before
the court is as much a criminal contempt in the face of the court as any other
contempt justifying summary attachment: R. v. Gray [1990] 2 Q.B. 36. for the
reasons stated I find the accused guilty."
Now the first and fundamental point taken
by Mr. Lardner on this appeal for the accused is that the paragraph in question
in the affidavit which read-
"5. That the Oban (Nigeria) Rubber
Estate Ltd. paid directly to his Lordship the sum of N488'15s being balance out
of 700 guineas legal debt on the 10th day of April, 1969 out of the trust
fund."
did not on its face amount to contempt of
court. It was made in support of a perfectly normal application for transfer of
the civil case to another judge, because Bassey J. when earlier a legal
practitioner had dealt with the matter, and was stating true facts. It only
stated that the learned trial judge was paid a legal debt. Mr Ekong for his
part initially argued that there was an implication that something immoral had
been done in paying out of the trust fund, that it implied the judge collected
the money without authority and that whilst legally due to the judge it was
paid in an unauthorised way. He however conceded that it was not specifically
so stated in the affidavit that the money was paid in an unauthorised way but
he submitted that such was the "undertone". He further conceded it
was never stated that the learned trial judge was not entitled to the money but
as a possible aspersion, he submitted might be found in the inverted commas
round the words "legal debt". Finally on this point he conceded that
it was possible to draw from the paragraph in question in the affidavit two
possible conclusions only one which was adverse to the accused and could be
considered contempt.
To our mind, since a contempt
of court is an offence of a criminal character, it must be proved beyond
reasonable doubt. Therefore, where as in the present case, there are two
equally likely possibilities open to the court when considering the act
complained of, it is not proper to hold that the offence of contempt has been
proved beyond reasonable doubt. (See In re Bramblevale Ltd. [1969] 3 W.L.R. 669
at 705). This view is all the more important if we advert to the observation of
Lord Atkin in the Privy Council in Ambard v. Attorney-Generalfor Trinidad and
Tobago [1936] A.c. 322 at p. 335 which reads:-
"But whether the authority and position
of an individual judge, or the due administration of justice, is concerned, no
wrong is committed by any member of the public who exercises the ordinary right
of criticising, in good faith, in private or public, the public act done in the
seat of justice. The path of criticism is a public way: the wrong headed are
permitted to err therein: provided that members of the public abstain from
imputing improper motives to those taking part in the administration of
justice, and are genuinely exercising a right of criticism, and not acting in
malice or attempting to impair the administration of jus:-tice, they are
immune. Justice is not a cloistered virtue: she must be allowed to suffer the
scrutiny and respectful, even though outspoken, comments of ordinary men."and
see also Lord Denning in R. v. Metropolitan Police Commissioner [1968] 2 All
E.R. 319 at 320. Both those cases deal with contempt of court by statements in
newspaper or other publications but they establish clearly the principle that a
court must be very careful in the exercise of its powers to convict of contempt
and to use it sparingly.
We think that principle applies in every way
as much to contempt in the face of the court. Whether a statement in an
affidavit before a court could amount to contempt in the face of the court
would depend on a number of circumstances such as the conduct of the deponent,
the reader of the statement and the circumstances of his reading. Counsel may
of course be liable for contempt in the face of the court for statements he may
make (See Vidyasagara v. The Queen [1963] A.C. 589). This would be for an act
done calculated to bring the court or a judge of the court into contempt or to
lower the judge's authority within what Lord Russell C.J. had laid down in R.
v. Gray [1900] 2 Q.B. 36
where at page 40 he said-
"Any act done or writing published
calculated to bring a Court or a Judge of the Court into contempt, or to lower
his authority, is a con:-tempt of Court. That is one class of contempt.
Further, any act done or writing published calculated to obstruct or interfere
with the due course of justice or the lawful process of the Courts is a
contempt of Court. The former class belongs to the category which Lord Hardwick
L.C. characterise as range scandalising a Court or a Judge.' In re Read and
Huggonson (1742) 2 Atk. 291,469."
We think further that the learned trial
judge would have done well to have kept in mind the words of Lord Goddard in
Shamdasani v. King-Emperor [1945] A.C. 264 where at page 268 he said-
"Dealing first with the appellant's
reference to the conduct of the Bar, their Lordships share the surprise
expressed by the Chief Justice when granting the certificate for appeal as to
what he described as the some:-what undue degree of sensitiveness displayed in
taking so serious a view of what had been said. Their Lordships would, indeed,
go further, and say that it would have been more consonant with the dignity of
the Bar to have ignored a foolish remark which has been made over and over again,
not only by the ignorant, but by people who ought to know better, and, no
doubt, will continue to be made so long as there is a profession of advocacy.
To treat such word as requiring the exercise by the court of its summary powers
of punishment is not only to make a mountain out of a molehill but to give a
wholly undeserved advertisement to what had far better have been treated as
unworthy of either answer or even notice."
Finally on this point we draw attention to
the case of Izuora v. The Queen [1953] A.C. 327 where at page 336 Lord Tucker
said -
"It is not possible to
particularize the acts which can or cannot constitute contempt in the face of
the court, but in this connexion it is desirable to bear in mind what was said
in the judgement of the Board delivered by Lord Goddard in Parashuram Detaram
Shamdasani v. King-Emperor [1945] A.C. 264, 270 where these words are to be
found:-'Their Lordships would once again emphasize what has often been said
before, that this summary power of punishing for contempt should be used
sparingly and only in serious cases. It is a power which a court must of
necessity possess; its usefulness depends on the wisdom and restraint with
which it is exercised, and to use it to suppress methods of advocacy which are
merely offensive is to use it for a purpose for which it was never intended.'
It is not every act of discourtesy to the court by counsel that amounts to
contempt, nor is conduct which involves a breach by counsel of his duty to his
client necessarily in this category. In the present case the appellant's
conduct was clearly discourteous, it may have been in breach of rule 11 of Ord.
16, and it may, perhaps, have been in dereliction of his duty to his client,
but in their Lordships' opinion it cannot properly be placed over the line that
divides mere discourtesy from contempt."
Quite apart of Mr. Ekong's concession that two
possible meanings are attributable to the paragraph in question in the
affidavit, which would dispose of the matter, in fact reading the paragraph in
a normal,. natural and balanced way we cannot see that prima facie any contempt
of court can be shown on the face of it. It stated a fact, which is not
disputed, that money due under a legal debt was paid to the learned trial
judge. To impute immoral motives into that, as the learned trial judge did,
seems to us quite untenable. It follows that the accused was wrongly convicted
and sentenced.
The matter does not rest there however as
we must draw attention to the fact that the learned trial judge seems to have
been completely confused over the mode of procedure that he adopted. At page 6
of the record to which we have referred it is stated "the court has been
put into a position it has to defend itself. I shall put the deponent into the
witness box," and this on any showing was a quite wrong procedure. If the
learned trial judge wished to deal with a case of contempt in the face of the
court summarily he should have put the accused not in the witness box but into
the dock and asked him to show cause why he should not be convicted. He should
not have compulsorily put him into the witness box as apart from anything else
that offended against section 22 (9) of the Constitution of the Federation
which reads-"No person who is tried for a criminal offence shall be
compelled to give evidence at the trial."
The learned trial judge himself drafted a
charge and seems to have proceeded both under his common law powers preserved
by virtue of section 6 of the Criminal Code Law and also under section 133 of
the Criminal Code. The charge did not specify under which provision the accused
was charged. The learned trial judge concluded his judgement with the words
"for the reasons stated I find the accused guilty" and thus did not
state, as he should have done, under what provisions he found him guilty. From
the judgement which we have quoted it appears to us that he purported to
convict the accused under both his common law powers and under section 133 of
the Criminal Code. If the learned trial judge was acting at all under section
133 of the Criminal Code then he was in error as that should have been tried
before a different court. We do not think, as Mr Ekong submitted to us, that
the reference to section 133 of the Criminal Code in the judgement was as he
put it "extraneous argument in the reasoning of the judgement which was
convictiag solely under the common law" as the judge stated he convicted
the accused "for the reasons stated" which included the reasons why
he thought the accused was guilty under section 133 of the Criminal Code.
For the many reasons that we have indicated
the conviction here was in error and we accordingly set aside the conviction
and sentence of a fine N75 or 3 months imprisonment and enter a verdict of
acquittal. If the fine has been paid it must be refunded immediately to the
accused.
Appeal allowed: conviction and sentence set
aside: verdict of acquittal entered.
Appearances
Lardner
For Appellant
AND
Ekong (Ag. Senior State
Counsel)
For Respondent
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