AGBACHOM v.THE STATE (1970)

In The Supreme Court of Nigeria

On Friday, the 13th day of March, 1970

SC.304/1969

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

AND

THE STATE-Respondent…………………….A…………………….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…………………….B…………………….

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.…………………….C…………………….

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 (SeeVidyasagara 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 inR. 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…………………….D…………………….

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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