Aviomoh V. C.o.p & Anor (2021)
LAWGLOBAL HUB Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.S.C.
This is an appeal against the judgment of the Court of Appeal Coram A. D. Yahaya, M.A.A Adumein and T. A Wilson JJCA delivered on 16/5/2014. The Hon Justices of the Court of appeal had upheld that part of the judgment of the High Court of the FCT in its appellate jurisdiction which had upheld the ruling of the trial Chief Magistrates’ Court on the issue of the jurisdiction of the trial Court to entertain the criminal proceeding initiated by a First Information Report at the trial Court against the Appellant. My Lords, it is important to set out the undisputed facts which led to this appeal copiously.
One Mr. Femi Otedola, the Chairman of African Petroleum PLC at every material time to this appeal filed a direct criminal complaint against the Appellant herein, then a Director of Finance in African Petroleum PLC, at the Chief Magistrates’ Court, Wuse Zone II, Abuja, on the 19th day of October, 2010 and same was referred to the Police by the trial Court for investigation.
The officers of the Inspector General of Police, Special Investigation Unit, Force Headquarters Abuja were directed by the Inspector General of Police to investigate the complaint. At the conclusion of the investigation, the Appellant and the 2nd Respondent were indicted and consequently arraigned before the Hon. Chief Magistrates’ Court Wuse Zone II, Abuja on a First Information Report FIR as a direct criminal complaint.
The Appellant and the 2nd Respondent applied for bail which was granted by the trial Chief Magistrates’ Court and the case was adjourned for hearing.
On the 10th February, 2011 when the case came up for hearing at the trial Chief Magistrates’ Court, the prosecution applied to withdraw the First Information Report earlier filed and to substitute same with a new First Information Report (FIR) which application was granted after argument had been made by both the prosecution and defence counsel and the old First Information Report was struck out.
The new First Information Report was read and explained to the Appellant and the 2nd Respondent as provided in the Criminal Procedure Code. The Appellant and the 2nd Respondent both denied the charges contained in the new First Information Report.
The Appellant and the 2nd Respondent having taken their plea on the new First Information Report (FIR), the Appellant’s counsel Chief Mike Ozekhome, SAN, leading other counsel moved his notice of preliminary objection challenging the jurisdiction of the trial Chief Magistrates’ Court to try the case, the prosecutor Simon Lough Esq., opposed the objection.
In a ruling delivered on 18th March, 2011, the learned trial Chief Magistrate overruled the Appellant’s preliminary objection.
The Appellant and the 2nd respondent being dissatisfied with the decision of the learned trial Chief Magistrates’ Court appealed to the High Court of the FCT Abuja in its Appellate jurisdiction.
The judgment of the High Court of the FCT, Coram: Hon. Justice M. E Anenih and Hon. Justice S. B Belgore delivered on the 24th May, 2012, unanimously dismissed the Appellant’s appeal.
The Appellant appealed to the Court of Appeal, Abuja Division.
In the judgement of the Court of Appeal Coram: Hon. Justice A. D. Yahaya, Hon Justice M.A.A Adumein and Hon. Justice T.A. Wilson JJCA, delivered on the 16th May, 2014, their Lordships unanimously dismissed the Appellant’s appeal. The Appellant has further lodged this appeal to this Court to challenge the judgment of the Court below vide a Notice of appeal dated 15th day of June, 2017 and filed on the s ame day.
The three issues distilled for determination by Chief Mike Ozekome SAN et al in the brief signed by Godwin lyinbor Esq., were adopted by the learned 1st Respondent’s counsel. I will also adopt them for the determination of this appeal. They are set out below:
- Whether the Court below was right in law by its holding that the First Information Report (FIR) upon which the Appellant was arraigned before the trial Court and the entire proceedings conducted thereat were not unconstitutional, illegal, null and void (distilled from grounds 1 and 3).
- Whether the Court below was right in law in the absence of any Respondent’s notice duly filed by the 1st Respondent to uphold the judgment of the High Court of the Federal Capital Territory sitting in its appellate jurisdiction on grounds other than those relied upon by the said Appellate High Court of the Federal Capital Territory (distilled from ground 2).
- Whether the First Information Report upon which the Appellant was arraigned before the trial Court is not unconstitutional for being in conflict with the provision of Sec. 39 of the 1999 Constitution of the Federal Republic of Nigeria, (as Altered), as it relates to the constitutionally guaranteed freedom of expression. (Distilled from Grounds 4).
ISSUE 1
My Lords, the Appellant’s Counsel insisted that the trial was a nullity because the charges were unknown to law since the Appellant was charged under certain sections of what the prosecution called Laws of the Federation 1990. Learned counsel urged the view that any attempt by the prosecution to cure the defective charge by way of amendment, substitution or withdrawal of same cannot stand as something cannot be placed on nothing in accordance with the principle established in Macfoy vs. UAC (1962) A.C P9152 at 160 which still holds good.
Counsel expended a lot of energy on whether the Court of Appeal should have taken a decision on the issue of the withdrawal/substitution of the charge or not. Counsel submitted that the Court below had no business dealing with the issue and making it a basis for its decision as the issue was not properly placed before it. Counsel pursued the argument that the FIR was predicated on S.79, 392, 393, 394 and 395 of the Penal Code Cap 531, Laws of the Federation 1990, a non-existent law at the time the charge was laid, thus the FIR and the subsequent trial based on a non-existing law would be unconstitutional null and void. Counsel argued that with the coming into effect of the Laws of the Federation 2004, the previous laws ceased to exist. Counsel cited Lucky Jacob Akpan v. The State (2014) LPELR-22740 (CA), George v. FRN (2013) LPELR-21895 SC.
Learned 1st Respondent’s Counsel on this issue submitted that the Appellant was not arraigned on the Laws of the Federation 1990, but on the Penal Code Law simpliciter. Thus, Counsel argued, the reliance by the Appellant’s counsel on a violation of S. 36(8) and (12) of the 1999 Constitution to prevent the trial of the Appellant is misconceived. Counsel also referred to the record of proceedings at trial wherein the previous FIR was withdrawn and a fresh FIR was laid against the Appellant upon which he was sought to be tried.
OPINION
My Lords, the argument of the learned Appellant’s counsel is misconceived both in fact and law. This issue as argued is just an unnecessary storm haphazardly brewed in a tea pot.
The main thrust of the complaint is a matter of fact which is whether or not the previous FIR under which the Appellant was proceeded against at the trial Court had been substituted by the prosecution or not. A consideration of this factual issue shows clearly that on Pages 28-36 of the record, the first FIR was withdrawn on 10/2/2011 and the extant FIR on which the appellant was charged was substituted. The Court below dealt extensively with this issue on page 296-298 of the record and found no factual basis for the argument of the Appellant’s counsel.
I agree with the Court below that there is no factual basis for the complaint by the Appellant’s counsel that the Appellant was charged on a non-existing law.
On page 5, Paragraph 4.4 of the Appellant brief, Appellant’s counsel insisted that it was erroneous of the Court below and the High Court to have considered and determined the issue of withdrawal and substitution of a fresh charge and that no substitution can be made for an incompetent charge. The Appellant’s counsel on Page 10 para 4, 16 complained in an about face that the High Court and the Court of Appeal did not consider the Appellant’s argument on the charges which he argued had violated S.36(8) and (12) of the Constitution. Counsel speaks from two sides of his mouth. It is one thing for the prosecution to charge Defendant with an incompetent charge which does not exist in any law, and another to charge with reference to a wrong law. Any charge or process can be withdrawn and another charge or process substituted at any time in a criminal trial so long as the defendant’s attention was drawn to the substituted charge, he was given opportunity to make a fresh plea to the new charge and all opportunities are given to the defendant to recall witnesses or call fresh witnesses to defend the new charge. See FRN V. Adewunmi (2007) LPELR-1273 (SC).
No doubt, an incompetent charge cannot be substituted. A new charge with a fresh number must be brought after the incompetent charge has been struck out. An incompetent charge is different from an irregular charge. The charge initially filed is not incompetent and the amendment was in order. This is because filing a charge pursuant to a wrong law does not render the charge incompetent in so far as the offences are actually known to some other law which is extant. The extant law is the 2004 Laws whereas the Appellant was charged under the 1990 Laws.
Since the Appellant understood the charge, even if the charge had gone to trial, no appellate Court would have set aside the judgment on that ground. See Oyem v. FRN (2019 LPELR- 47392 (SC); David v. C. P. Plateau State Command (2019 2 NWLR Pt. 1655 Pg. 178 at 188-189; Okpa v. The State (2017) LPELR -42205(SC).
This issue had been settled in Ogbomor v. The State (1985) IN SCC 224 where it was held that mere misdescription of an existing law as long as such a law existed at the time of the commission of the offence does not make the charge incompetent. See Boniface Adonike v. The State (2015) LPELR – 24281(SC) Pt. 22. Thus, the misdescription of the law in the charge does not make it invalid or incompetent. This issue is resolved against the Appellant.
ISSUE 2
Learned Appellant’s counsel argued that whereas the 1st Respondent had argued at the Court below that the Appellant had been properly prosecuted on a substituted FIR, and the Court below agreed with that argument, the lower Court’s judgment had been based on a different premise, to wit: that the laws under which the FIR was brought was in existence and that the laws were not in conflict with the rights of freedom of expression as guaranteed by the 1999 Constitution. Appellant’s counsel argued that in upholding the judgment of the High Court, the Court of Appeal was in error since there was no Respondent’s notice filed by the 1st Respondent to activate the exercise of the power of the appeal Court to consider that point. In reply, the 1st respondent’s counsel argued that the attention of the Court of Appeal was drawn to the fact that the High Court in its appellate jurisdiction had in determining the issue in controversy which was whether the Appellant had been charged upon a non-existent charge taken into consideration the fact that the first FIR based on the Penal Code “Laws of the Federation of Nigeria 1990″ was withdrawn on oral application of the prosecutor and substituted with another one which was pursuant to the Penal Code Law and concluded that the FIR upon which the Appellant was proceeded against was valid. Counsel argued that the 1st Respondent never raised any issue or ground different from the one raised by the Appellant at the Court below. The 1st respondent’s counsel argued that he adopted the issues as formulated by the Appellant at the Court below and responded to them seriatim. There was therefore no need for the 1st Respondent to file a Respondent’s notice since the 1st Respondent did not desire to contend at the Court of Appeal that the decision of the High Court of the Federal Capital Territory should be affirmed on grounds other than those relied upon by that Court.
OPINION
My Lords, I agree with learned 1st respondent’s counsel that the Appellant’s arguments are highly misconceived on this issue for want of a stronger word. It is clear from the record that the 1st Respondent did not urge the Court of Appeal to affirm the judgment of the High Court on the ground that there was a substitution of the FIR but rather on the ground that the FIR upon which the Appellant was proceeded against was valid and constitutional. The insertion of the issue of Respondent’s failure to file a Respondent’s Notice into the discourse in this appeal is unwarranted given the fact that this issue had always been raised by the Appellant at the High Court and the Court of Appeal. There was absolutely no need for the 1st Respondent to file a Respondent’s notice in order to respond to issues raised at the lower Court or Court below by the Appellant which issues as distilled were from his grounds of appeal. This issue is resolved against the Appellant.
ISSUE 3
Learned Appellant’s counsel argued that the First Information Report on which the Appellant was arraigned is unconstitutional for being in conflict with Section 39(1) of the Constitution of the Federal Republic of Nigeria (as altered) bordering on freedom of expression.
Appellant’s Counsel submitted that the offences provided for under Sections 79, 392, 393, 394 and 395 of the Penal Code bordering on joint acts of defamation of character injurious falsehood, printing or engraving matters known to be defamatory matters for which the Appellant was sought to be prosecuted constitute an elevated statute designed to stultify, muzzle and interfere with the constitutionally guaranteed freedom of expression. Appellant’s counsel argued that the Court of Appeal ought to have declared the said Sections of the Penal Code null and void for being inconsistent with the clear and unambiguous provisions of Sec. 39(1) of the Constitution (As Altered). The Appellant’s Counsel argued that the Court of Appeal like every other Court has a duty to protect human rights.
Counsel cited African Continental Bank Plc v. Losada Nigeria Ltd & or (1995) LPELR 205 (SC) and National Union of Electricity Employees & Anor V. Bureau (2010)LPELR- 1966 (SC).
Learned appellant’s counsel also commended to this Court the ratio in Nwankwo v. The State (1983) NCR 366 and the principle settled therein relating to the sanctity of the constitutional provisions in respect of human rights. Counsel argued that the lower Court was in grave error from the entire circumstance of this appeal to have relied on Sec. 45 of the Constitution to arrive at its determination that the said Section of the Penal Code which are in conflict with Sec. 39(1) of the Constitution as it relates to freedom of expression are not unconstitutional null and void.
Learned Respondent’s counsel argued that although the 1999 Constitution of the Federal Republic of Nigeria in Section 39(1) guarantees citizens the right to freedom of expression and opinion, the same constitution also qualified that right to freedom of expression and opinion, which recognize the rights of others against defamatory expression.
Learned 1st Respondent’s counsel argued that in view of the Sec. 45(1) of the Constitution of Nigeria (as Altered), it will be absurd to interpret Section 39(1) of the same Constitution as invalidating the provisions of the Penal Code relating to the offence of defamation of character, when the Constitution clearly preserved the rights of others against defamatory expressions.
Learned 1st Respondent’s counsel submitted that Sec. 79, 392, 393, 394 and 395 of the Penal Code Laws, upon which the Appellant was arraigned before the trial Chief Magistrates’ Court are not in conflict with the provisions of Sec 39 of the Constitution, rather the Constitution has re-enforced them by virtue of Sec 45(1) of the same Constitution. Counsel cited DPP V. Chike Obi (1961) 1 All N L R Pg. 186 where the Supreme Court held that no government criticism should disturb public order.
OPINION
My Lords, this issue is the one on which this appeal turns.
The extant FIR on which the Appellant was charged is on Pg. 39 of the record and it states as follows:
Joint act, defamation of character, injurious falsehood, printing or engaging matter known to be defamatory and sale of printed or engraved substance containing defamatory matter, contrary to Section 79, 392, 393, 394, 395 of the Penal Code Law. That on 19th October, 2010 Femi Otedola, Executive Chairman of African Petroleum through a direct criminal complaint to the Chief Magistrate Court, Abuja which was referred to the Inspector General of Police for investigation reported that in July and August, 2010, you Aviommoh Clement “m” and Sunday Esan “m” while acting. In concert and in furtherance of a common intention to defame, embarrass, and maliciously cause serious harm to the reputation of the Executive Chairman of African Petroleum, Mr. Femi Otedola, published in the News Star of Monday 2nd to Tuesday 3rd August, 2010 at page 10-13, the Compass News Paper of 1st August, 2010 at Page 4-7, News of the People of August 16-23, 2010 Edition at page 13-16, First Weekly Newspaper of August 15th, 2010 at page 29-32, The Guardian Newspaper of July 13th, 2010 page 7, Daily Independent of July 13th, 2010 at page 4 with the caption AP Lost N50 billion to Otedolas sharp practices and in page 2-6 of a book with the caption “How Otedola is killing AP”. Under the above captions, you published that Mr. Femi Otedola has been milking African Petroleum for his private gains for the past two years. You published further that Mr. Femi Otedola has been using his companies Zenon Petroleum and Gas Company Limited, Platinum Fleet Limited and Fineshade Energy Limited to sell product to African Petroleum at high prices than the retail prices. In the said publication, you portrayed Mr. Femi Otedola as a corrupt and fraudulent person. The above publication attracted the attention of many Nigerians and foreigners both at home and abroad. The said publication which you knew or had reasons to believe to be false, the copies of which were sold to several persons in Nigeria and same posted on the internet for wide publicity. You thereby committed the above-mentioned offences.
As can be seen from above, the Appellant was charged for crimes contrary to S. 79, 392, 393, 394 and 395 of the Penal Code Law. The specific letters of these Sections are set out below:
S. 79 When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
S.392- Whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or both.
S.393(1)- Whoever, save as herein excepted, by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any false statement of fact, intending to harm or knowing or having reason to believe that such false statement of fact will harm the reputation of any person or class of persons or of the Government or any Local Government Council in the state shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
S.394 – Whoever prints or engraves any matter or prepares or causes to be prepared any record for the purpose of mechanical reproduction of any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
S-395 – Whoever sells or offers for sale any printed or engraved substance containing defamatory matter or any record prepared for the purpose of the mechanical reproduction of defamatory matter, knowing that such substance or record contains such matter, shall be punished with imprisonment for a term which may extend to two years or with fine or with both
S.39(1)- of the 1999 Constitution which is the relevant portion for this appeal states thus:
1) Everybody shall be entitled to freedom of expression including freedom to hold opinions and to receive and import ideas and information without interference.
Sec 45 (1) of the 1999 Constitution states as follows:
1) Nothing in Section 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably, justifiable in a democratic society-
a) in the interest of defence, public safety, public order, public morality or public health or
b) For the purpose of protecting the rights and freedom of other persons.
The Court of Appeal had this to say at Pg. 301-302 of the record in respect of the watering down of the right to freedom of expression contained in S.39(1) in favour of the proviso in S.45(1) of the 1999 Constitution:
“What the above means, is that Section 39 of the 1999 Constitution as amended, which is relevant for our purposes here, cannot operate, to invalidate any law promulgated by any legislative body, when that law is made in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons.
So, when Section 39(1) of the Constitution entitles a person to freedom of expression and imparting ideas and information, it is not a blanket right. it must not be utilised or invoked in such a way, that it offends public safety, order, morality and health and it must not be injurious to the rights and freedom of other persons. Once a person lives in a community, his rights stop where the rights of the other members of the community begin.
He has to behave according to the norms of that society, otherwise his conduct will be injurious to the well-being and continued existence of that community. He cannot, in the guise of exercising his freedom of expression or imparting information, trample upon the rights of other persons in the society. He must not act in such a way, that he defames their character or endanger their safety, health, order or morality. The Constitution recognizes the fact that if such a person acts to the detriment of others, he can be liable in a civil action, but the issue goes beyond the right of an injured individual to act and the whole society has to be involved to protect itself. Hence, criminalizing such conduct of the individual. That is why Section 45(1) of the Constitution was promulgated.
The FIR filed against the appellant is in respect of the offences of defamation of character, injurious falsehood printing or engraving such matter. These are offences that are against public morality, health and order of the society. They, if proved, would have injured the rights and wellbeing of the appellant in his character and reputation. They are therefore within the ambit of Section 45(1) of the 1999 Constitution. So, the said offences alleged against the appellant in the FIR, as contained in the Penal Code, are not unconstitutional, and have not constituted a flagrant violation and subjugation by criminal process of the constitutionally guaranteed freedom of expression and opinion of the appellant.”
Apart from bald assertions, no serious arguments were advanced by learned Appellants counsel to convince this Court to declare unconstitutional, the provisions of the Penal code which are ostensibly saved by S.45 of the Constitution. The cases cited by learned senior counsel for the Appellant only relate to the general proposition of the law that the Courts must protect human rights and resist any attempt or legislations that would directly or indirectly erode the efficacy of the inalienable fundamental rights donated by the 1999 Constitution. Be that as it may, the resolution of this issue gave me some anxious moments. The judicial instinct to protect the citizenry from any incursion into their fundamental rights must be weighed against the mischief sought to be prevented by the legislation and the concomitant saving provisions of the Constitution.
My Lords, the main purpose of the criminal law is to protect the interests of the public at large by punishing those found guilty of crimes, generally by means of imprisonment or fines, and it is those types of conduct which are most detrimental to the society and to the public welfare which are treated as criminal. A conviction for a crime is obtained by means of criminal prosecution, which is usually instituted by the State through the agency of the police.
A tort on the other hand is a purely civil wrong which gives rise to civil proceedings. The purpose of such proceedings being not to punish wrongdoers for the protection of the public at large, but to give an individual plaintiff compensation for the damage which he has suffered as a result of the defendant’s wrongful conduct. Another important difference between tort and crime in Nigeria is that the entire criminal law has been codified in the form of the Criminal Code of the Southern States and the Penal Code of the Northern States, whereas the law of torts remains a creation of judicial precedent modified here and there by statute.
A Tort may be defined broadly as a civil wrong involving a breach of duty fixed by law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages. In the light of the above definition, civil wrongs include: trespass, defamation, malicious prosecution, negligence, nuisance, strict liability, deceit, passing off, vicarious liability, enticement and harbaoury.
My Lords, the misuse of the criminal law machinery for getting reliefs in disputes that are civil in nature, by using the instruments of State has become dangerously rampant in recent times. This practice leads to vexatious and oppressive litigation and is contrary to Sec. 36(12) of the 1999 Constitution (as amended).
Sometimes, the filing of criminal proceedings is used as a bargaining chip to pressurize and threaten the Defendant to enter into a settlement. Even though these cases involve civil liability, they are given criminal contours with the object of expediting the civil recovery mechanism or to apply pressure on the Defendant or out of enmity towards the Defendant or to subject the Defendant to harassment. My Lords, it is important that criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. The rule of law allows everyone with a legitimate cause or grievance to avail remedies available in criminal law. However, a complainant who initiates a prosecution with the knowledge that criminal proceedings are unwarranted and the remedy lies in the civil law, should be made accountable in law for pursuing misconceived criminal proceedings.
My Lords, I would strongly deprecate the initiation of false criminal proceedings in cases having the elements of a civil dispute. The quick relief offered by a criminal prosecution as opposed to a civil dispute incentivizes the litigant to initiate false and vexatious proceedings.
My Lords, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
My Lords, permit me to give a historical perspective of the law of criminal libel. Punishment of slanderers was provided by the early common law through the prosecution of those who maliciously spread false tales. Although it is not clear whether truth of the defamatory matter was regarded as a defense, it is certain that malice was conclusively presumed. The law of criminal libel, however, owes its origin not to the early common law but rather to an innovation in Star Chamber whereby elements of roman law were employed as the basis for prosecuting the publishers of defamatory statements. Star Chamber reasoned that such defamations tended to cause breaches of the peace. Since the tendency to provoke a breach of the peace was regarded as the gist of the crime, whether the “libel” was true or false was considered immaterial. In fact, it was reportedly said that “the greater the truth the greater the libel,” the statement being justified on the ground that persons whose faults had been exposed were more likely to assault the publisher than were the victims of fictitious accusations. “every libel is made either against a private man, or against a magistrate or public person. If it be a private man, it deserves a severe punishment, for although the libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience.” (culled from De Libellis famosist 5 Co. Rep 125a, 77 Eng. Rep. 250,251 (1606).
In the latter part of the seventeenth century, following the abolition of Star Chamber, jurisdiction over criminal libel devolved upon the common law Courts. The laws requiring strict licensing of the press having been repealed, criminal libel prosecutions became a potent weapon of political oppression in England. The jury system however presented a potential curb to such abuse. Proponents of freedom of the press argued that in a criminal libel action the jury, in addition to its ordinary fact-finding capacity, should have the right to decide the legal question of whether or not the writing constituted a libel. After a bitter struggle, the jury’s right to decide this vital question was recognized by the adoption of Fox’s Libel Act of 1792. The broad power of the jury in criminal libel cases, was then accepted in the UK where we derived our common Law and some states in the USA. In the U.S.A., the general and I daresay current position of the law is as stated in Chaplinsky v. New Hampshire 315 U.S. 5681 571 (1942) as follows:
“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd, the obscene, the profane the libelous and the insulting or “fighting” words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace… it has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by social interest in order and morality.” The present trend globally seems to be more tilted towards abolition of criminal defamation although a significant number of jurisdictions still retain the offence in their statute books. There are international human rights documents from the African Union and The Commonwealth calling for decriminalisation of defamation and akin offences.
The arguments in favour of abolition substantially rest on the compatibility of criminal defamation offences with the human/constitutional right to freedom of expression and many pro-abolition advocates point to use of criminal defamation for repression of journalists in many countries across the world. It needs be noted however also that the arguments in favour of retention also rest on human rights claims.
While some countries that have gone all out to abolish it, others have been more cautious. Section 73 of the English Coroners and Justice Act 2009 abolished the common law offences of sedition, seditious libel, obscene libel and defamatory libel.
Ghana did by way of legislation – The Criminal Code (Repeal of Criminal Libel and Seditious Laws) (Amendment) Act 2001 repealed the offences of criminal libel for being unconstitutional. Sierra Leone also abolished criminal defamation in 2020 with the enactment of the Independent Media Commission (IMC) Act 2020 which repealed Part 5 of the 1965 Public Order Act which criminalised any publication that is deemed defamatory or seditious.
Defamation was decriminalised in the Criminal Law of Lagos in 2011 and Edo State Criminal Law Bill 2020. There is a global move in the direction of decriminalising defamation. In England, Section 73 of the Coroners and Justice Act 2009 decriminalised defamation. The Council of Europe is also committed to decriminalizing defamation. The Parliamentary Assembly of the Council of Europe (PACE) further affirmed its determination to stand for the decriminalisation of defamation in its Resolution 1577 towards decriminalisation of defamation (2007) and the corresponding Recommendation 1814 (2007). PACE called on the Council of Europe’s member states to abolish prison sentences for defamation without delay, to guarantee that there is no misuse of criminal prosecution for defamation and to safeguard the independence of prosecutors in these cases, to define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law, and to ensure that civil law provides effective protection of the dignity of persons affected by defamation. Secondly, PACE called on the member states to set reasonable and proportionate maximum amounts for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk, and to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury.
Lesotho abolished criminal defamation through judicial decision (Peta v. Minister of Law, Constitutional Affairs and Human Rights (CC11/2016) 120181 LSHC 3 (18 May 2018); BY S.373 — 381 of the Nigerian Criminal Code Act 2004;
By S.500 of the Indian Penal Code, S.499 and S.500 & 501 Pakistan Penal Code, S.436, 437 & 438 of the Sudan Penal Code S.380 Australian Criminal Code all these countries still retain the offences in the statute books.
The Lesotho High Court struck down criminal defamation for breaching the constitutional freedom of speech using criteria such as:
(i) Test for impairment
(ii) Objective of proscribing defamation and its importance
(iii) Proportionality
(iv) Rational connection
(v) Minimum impairment
(vi) Issue of vagueness and over-breadth
(vii) International human rights standards
It is instructive that Courts are increasingly reluctant to allow public authorities to claim even in the case of the tort of defamation. For example, in the English case of Derbyshire Council v. Times Newspaper Ltd. (1993)1 ALL ER 101 (HL), the Court held that:
‘Since it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation, and that, accordingly, the plaintiff was not entitled to bring an action for libel against the defendants, and its statement of claim would be struck out.”
My Lords, I need to re-emphasise that defamation is both a tort and a crime. Any person aggrieved by any defamatory publication has the right to pursue an action for civil remedies of damages etc.
Some countries have decriminalised defamation for several reasons.
First, the wrong occasioned by defamation can be adequately remedied by a civil action with the award of damages and other ancillary reliefs to ensure that the particular defamatory act is not repeated.
Secondly, the criminal law is an instrument of last resort because of its potential to interfere with the liberty of the citizen. A citizen found liable for breach of the criminal law is convicted and sentenced to a term of imprisonment or fine. The liberty of the citizen is interfered with. The argument is that where other branches of the law or administrative remedies can adequately address the wrong sought to be criminalised there is no overarching public interest in punishing the act through the criminal law. Allied to this is the argument that there is currently a phenomenon of overcriminalisation. This is the use of the criminal law to address problems which can adequately be addressed through other branches of the law or through an administrative process.
Another concern that also provide a basis for decriminalizing defamation is its potential to unduly interfere with the constitutionally guaranteed right to freedom of expression. This argument while recognising that the right to freedom of expression is not absolute argues that criminalisation may unduly restrict the exercise of the right. This argument supports the use of less coercive civil remedies of damages and others ancillary reliefs as sufficient safeguards against abuse of the right to freedom of expression. The remedy of damages and other ancillary reliefs is considered sufficient.
The right to freedom of expression guaranteed by Section 39 of the Constitution is by Section 45(1)(b) subject to any law reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons.
Although Section 45 of the Constitution generally allows derogation from fundamental rights guarantees contained in Sections 37, 38, 39, 40 and 41, derogations must be legal, that is, made under a law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of others. In Cheranci v Cheranci (1962) N.R.N.L.R. 29, Bates J., identified the principles that govern whether a restriction of rights is reasonably justifiable in a democratic society, namely:
(a) The law must be necessary for the interest of public morality or public order, etc.
(b) It must not be excessive or out of proportion to the objective which it sought to achieve.
It may be argued that punishing defamation with criminal conviction and pain of imprisonment is excessive and out of proportion to the objective of protecting the reputation damaged by defamation when the civil law provides sufficient remedy to the person aggrieved.
The phrase ‘necessary in a democratic society’ has also been interpreted by the European Court of Human Rights, which held that for an interference to be necessary, it must be justified by a “pressing social need” relating to one or more of the legitimate aims (Observer and Guardian v. The United Kingdom, judgment of 26 November 1991, A216 paragraph 71). In determining whether such a need exists:
i) Attention must be paid to the particular facts of the case and to the circumstances prevailing in the given country at the time (Lingens v. Austria, judgment of 8 July, 1986, A 103 paragraph 43).
ii) The state’s action must also be based upon “an acceptable assessment of the relevant facts.” (Oberschlick v Austria, judgment of 23 May, 1991, A 204, paragraph 60).
Although the phrase used in the European Convention on Human Rights is different from “reasonably justifiable” used in the Nigerian Constitution, there is no material difference in the meaning of the phrases; the essence being to provide parameters for justifiable State action restricting human rights.
The Siracusa Principles on the Limitation and Derogation provisions in the International Covenant on Civil and Political Rights also enumerate guiding principles in assessing whether a restriction or limitation of fundamental rights is permissible or not. Specifically, that the restriction or limitation is:
(i) Provided for and carried out in accordance with the law;
(ii) Directed toward a legitimate objective of general interest;
(iii) Strictly necessary in a democratic society to achieve the objective;
(iv) The least intrusive and restrictive available to reach the objective;
(v) Based on scientific evidence and neither arbitrary nor discriminatory in application; and
(vi) of limited duration, respectful of human dignity, and subject to review.
The application of the above principles to the criminalization of defamation will yield the following conclusions:
(i) the criminal law provides for defamation;
(ii) the criminalization of defamation is directed toward a legitimate objective of general interest – viz protecting reputation;
(iii) it appears that the third principle does not support criminalization of defamation. This is because criminalizing defamation is not strictly necessary in a democratic society to achieve the objective. The tort of defamation already provides adequate remedy for anybody aggrieved by defamation;
(iv) also applying the fourth principle the criminal law is not the least intrusive and restrictive approach to achieving the objective of providing a remedy for defamation. The civil law approach is the least intrusive and less restrictive approach yet providing adequate and sufficient remedy for defamation.
Based on the application of the last two principles above, it is tenable to argue that criminalizing defamation is not reasonably justifiable in a democratic society and may therefore be declared unconstitutional.
My Lords, having demonstrated current conventional position on the criminalization of defamation, let us address the issue before us.
In India, with legislation similar to those under review, the Supreme Court has held that a High Court can exercise its inherent power to quash criminal proceedings for disputes that are essentially civil in nature between two or disputing parties. However, the Courts in India have always refused to quash the offensive charge at the pre-FIR stage and it should only be done after the trial of the FIR before a Magistrate.
In the case ofState of Andhra Pradesh v. Golconda Linga Swamy and Ors. (2004) 6 SCC Pg. 522. The Supreme Court observed that the mere allegation of mala fides against the informant are of no consequence and that alone could not be the basis for quashing the proceedings. The High Court was not required to enter into a meticulous analysis of the case for the conduct of the trial to find out whether the case would end in conviction or acquittal. Interference at the threshold with the FIR is made only if the complaint does not disclose any offence or is frivolous, vexatious or oppressive.
In another case, State of Kerala and Ors v. O. C. Kuttan and Ors. (1999) 2SCC 651, the Supreme Court held that the power of quashing the criminal proceedings should be exercised very sparingly with circumspection and that too in the rarest of rare cases. The Court observed that it was a well settled position that an FIR is only an initiation to move the machinery and to investigate into a cognizable offence. Thus, while exercising the power under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.), to decide whether the investigation itself should be quashed utmost care should be taken by the Court and at that preliminary stage, it is not possible for the Court to sift the materials or to weigh the materials and then to come to a conclusion one way or the other.
A three Judge Bench of the Supreme Court of India in the case of State of U.P. v. O. P. Sharma (1996) 7 SCC 705 indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be and should allow the law to take its own course. The inherent powers should be exercised sparingly and cautiously only if the Court is of the opinion that it would otherwise lead to a gross miscarriage of justice.
My Lords, I am relying on these afore quoted cases from similar jurisdiction to urge that the charges based on the FIR be continued, investigation carried out and that the investigation not be quashed at the threshold. While the Courts should be alert to the abuse inherent in the criminalization of civil wrongs the law as it stands is the law. A crime is what the legislature calls a crime no matter how archaic or unpalatable. It is left to the Courts adjudicating on these laws to ensure that no miscarriage of justice occurs in its enforcement. The rule of law today allows everyone with a legitimate cause or grievance to avail himself of remedies available in criminal law. However, a complainant who initiates a prosecution with the knowledge that criminal proceedings are unwarranted and the remedy lies in the civil law, should be made accountable by the law in punitive damages for pursuing misconceived criminal proceedings.
I think it is important for this Court to set guidelines for the lower Courts to ensure safeguards in this regard. The Police investigating a criminal complaint must ensure that the complaint is one that has no ready defence. The Court conducting an FIR must verify all facts to ensure that the ingredients of the offence can be proved and that there is no legal defence to the charge.
My Lords, at this stage in the proceedings at the Magistrates’ Court, I do not see my way to declaring the law unconstitutional being one unjustifiable in a democratic society. The law itself cannot be viewed in isolation of a live issue. I am aware my Lords that in some instances, where the charge is eventually quashed, the Defendant would have suffered untold damage. However, the facts of each case must be considered before the Court quashes a charge as one that would cause gross miscarriage of justice. In the circumstances, the 3rd issue is resolved against the Appellant.
The appeal is dismissed.
SC.419/2014
