Rex V. Zik’s Press Limited & Ors (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—publishing a Seditious Publication—Nigeria Criminal Code,sections 51 (1) (c) and 52 (2)—Written consent of Attorney-General–CriminalProcedure—Nigeria Criminal Procedure Ordinance, section 72—Procedure on appeal by limited company.
The following Joint Judgment was delivered:
These are appeals by the second and third accused in the Court below from convictions for publishing a seditious publication contrary to section 51 (1) (c) of the Criminal Code.
Three grounds of appeal in the case of the second, accused appear in the notice:-
- That there was no jurisdiction vested in the Court in so far as section 52,. sub-section 2 of the Criminal Code was not complied with.
- That there was no evidence that this accused was Editor on the day of publication.
- That the decision is altogether unwarranted unreasonable and cannot be supported having regard to the weight of the evidence.
The grounds of appeal in the case of the third accused are identical with (i) and (ii) above.
At.the hearing of the appeal Counsel for the appellants indicated that he did not press ground (ii) in the appeal of the second accused, it having been pointed out to him by the Court that there was evidence from which the learned trial Judge could legitimately infer that the accused was Editor of the newspaper in which the seditious publication appeared on the day of its publication.
Counsel further intimated that he abandoned ground (iii) in the appeal of the second accused and ground (ii) in that of the third accused.
There remains for our decision, therefore, the point raised by ground (i) in each appeal.
The section referred to therein provides that no prosecution shall be instituted under section 51 without the written consent of the Attorney-General. It is submitted that there is in the present case no written consent within the meaning of the section. It is apparent from the record, and is admitted on behalf of the respondent, that, apart from the ex–officio information signed by the Attorney-General, there is no written document embodying such consent.
Counsel for the appellants cited a number of cases in support of his contention. In the case of John Thomas Bates (1), it appeared that the consent of the Attorney-General in a prosecution under the Explosive Substances Act, 1883, was not in fact obtained, and it was held that the Court had no jurisdiction and the conviction was accordingly quashed. In Key v. Bastin (2) there was the fiat of the Attorney-General in a prosecution under the Newspapers, Printers and Reading Rooms Appeal Act, 1869, but the proceedings were not brought in his name. It was there held that such proceedings were null and void, and the Lord Chief Justice observed that although it might be said that the point was a ” mere technicality ” it might equally be said that the section is dealing with a ” mere technicality “.
Now in the present case it is submitted that, although the proceedings are instituted by the Attorney-General himself by way of ex officio information under the powers vested in him by section 72 of the Criminal Procedure Ordinance, it is nevertheless a condition precedent to the institution of such proceedings that there should be filed a document signifying in writing the consent of the Attorney-General to the proceedings, in addition to and separate and apart from the information signed and presented by him. On behalf of the respondent, however, the learned Attorney-General submits that the information signed by him is in itself written evidence of his consent to the proceedings.
It is to be observed that in the cases to which we have referred above the prosecution was in each case instituted by some person other than the Attorney-General, when, quite obviously, the consent of the Attorney-General must be produced before such proceedings could properly be commenced. We observe also, however, that in the case of Edward Turner (3) a case in which the consent of the Director of Public Prosecutions was required before the institution of the proceedings, Channel, J., in the course of the argument, expressed the view that ” if you do prove really and properly a notice by the Public Prosecutor to the prisoner that he intends at the end of seven days to prefer a certain charge against the prisoner, it is obvious that the Public Prosecutor must consent to it being done, because he says he is going to do it himself “. It appears to us that there is a direct analogy between the requirement of the consent of the Director of Public Prosecutions in that case and that of the Attorney-General in the present case, and we would most respectfully agree with the observation of Channel, J.
Can it be said in the present case that the Attorney-General has not consented to these proceedings and has not done so in writing when he has himself instituted the proceedings and himself signed the information with which the proceedings were commenced ? The moment he signed the information he consented in writing to the institution of the proceedings and when the information was filed the proceedings were instituted with his written consent. The whole object of the section is to satisfy the Court under the hand of the Attorney-General that he has consented to the prosecution. So to interpret this section as to require that he should, in addition to presenting an information under his own hand, file a document consenting to his doing so would be ludicrous, and by no canon of construction is this Court impelled to such a course when the provisions and objects of the enactment have patently been fulfilled and attained by a more reasonable interpretation.
This ground of appeal fails and the appeals of the second and third accused are dismissed.
There was also before us a document purporting to be a notice of application for leave to appeal by an individual therein described as ” Blankson, General Manager of Zik’s Press Limited “, against his conviction of the offence of publishing a seditious publication contrary to section 51 (1) (c) of the Criminal Code. No such person has been convicted. Zik’s Press Limited, a limited liability company, was the first named accused in these proceedings and was, convicted, but although by the Rules of this Court notices required to be given thereunder may be signed by the manager of such a corporation, they must obviously be signed by him on behalf of the company and not purport to be signed on his OWn behalf in regard to a conviction which does not lie against him personally and from which he personally has no right of appeal. This application for leave to appeal must therefore be dismissed.
Appeals of 2nd and 3rd applicants dismissed.
Application by 1st appellant for leave to appeal refused.
