James Ogidi Vs Commissioner Of Police (1960)
LawGlobal-Hub Lead Judgement Report
BRETT,F.J
This an appeal against the judgment of the High Court of the Western Region upholding the conviction of the appellant in the Magistrates Court of the Warri Magisterial District on a charge of publishing a seditious publication contrary to s.51(1) of the Criminal Code.
The publication in question was sent by the appellant as a telegram to the Minister of Justice, Ibadan; Broadcasting, Ibadan and Lagos; the West African Pilot, Lagos; and Chief Okotie-Eboh, Lagos, on the 1st July, 1959, and was also published, at the instance of the appellant, in the Midwest Champion newspaper on the 2nd July, 1959. It reads as follows:-
“We strongly suggest abolition customary courts Ward Division or replace Judges in them X since establishment Customary Courts acted deliberately against political opponents of Action Group X Justice denied Nation-Co supporters charged to Court X Accused sentenced refused Bail on Appeal by Undue condition X option fines
denied X Customary Courts procedure based on Action Group Doctrine X British Justice not in practice in Courts X Warri Customary Courts are Action Group institutions destined punish Nation-Co supporters X British protected persons nay Warri Citizens not used to this Unbritish Justice X unless these Courts abolished we deem them communist institutions X Citizens not safe with Customary Courts still existing Warri X aims of Customary Courts misinterpreted in Ward X Nation-Co and all Citizens lost confidence and West Regional Government’s name and good intention Dragged in mud due primitive interpretation of Justice Customary courts Warri Division X Minister of Justice called upon take immediate action abolish or order enquiry X.”
The magistrate found that this was a seditious publication, that is to say a publication having a seditious intention as defined in S.59(2) of the Criminal Code, and having regard both to the wording of the publication and to the extent of its dissemination we are in entire agreement with him. Chief Okorodudu, for the appellant, after quite justifiably submitting that the law of sedition is not to be used to stifle criticism, has tried to persuade us that the worst that can be said of the publication is that it contains intemperate criticism; it is common in Nigeria, he says, for demands of the kind contained in the publication to be published in the press, and since the press and wireless broadcasting are the natural media for mass persuasion it was reasonable to have resort to them in order to draw attention to the state of affairs complained of with a view to stimulating a demand for reform. He further submits that criticism of particular customary courts does not show an intention to bring into hatred or contempt or to excite disaffection against the administration of justice in Nigeria, and he has drawn our attention to various cases in which personal abuse of individual justice of the peace was held not to be indictable: R v. Wrightson 88 E.R. 965; R v. Shafto 88 E.R. 984; R. v. Pocock 93 E.R. 1098.
We fully agree that the law of sedition must not be stretched beyond its function of protecting public order and that it is the duty of the courts to safeguard the right of freedom of expression, which is now embodied in the Constitution of Nigeria. As regards the admission of justice, the classic statement of the right to criticise was made by Lord Atkin in delivering the judgment of the Privy Council in Ambard v. Attorney-General for Trinidad and Tobago (1936) A.C. 322 “Justice is not a cloistered virtue; she must be allowed to suffer the security and respectful, even though outspoken, comments of ordinary men.” We are unable to agree, however, that these principles are in any way endangered by the conviction of the appellant in the present case. Our attention has not been drawn to the exact responsibilities of the Minister of Justice of the Region in relation to customary courts, but we are willing to assume that he was the proper person to receive complaints. Although a person genuinely seeking the removal of abuses might reasonably be expected to cite actual instances, instead of confining himself to generalities, we consider that the courts should be slow to attribute a seditious intention to a communication published only to the Minister responsible for redressing the grievance complained of, and we might have taken a different view of the publication which is now in question if it had been communicated only to the Minister.
What we are concerned with here is a publication which the appellant caused to appear in one newspaper, and for which he sought further publicity in another newspaper and over the wireless. It gives no particulars from which the persons to whose notice it might come could form their own opinions as to the truth of the allegations it contains, and references to the media of mass persuasion seem quite out of place in relation to it. In a series of categorical assertions it accuses the customary courts of a whole Division of being the creatures of a political party, of deliberately discriminating against the opponents of that party, and of denying them justice, so that citizens are not safe with the courts. It is difficult to conceive of anything better calculated to bring into hatred or contempt the administration of justice in Nigeria than such an attack, and since an appeal lies from the customary courts to the High Court of the Region it is not at all clear that the attack does not by implication, extend to the High Court. However that may be, we cannot take the view that the intention behind such a publication, when communicated to the world at large, was anything but a seditious one, or that the publication was intended only to point out errors or defects. We consider that the conviction was amply justified on the facts of the case.
We have still, however, to deal with a point of law which goes not only to the jurisdiction of the court in this case but to the validity of any of the actions of the Directors of Public Prosecutions of the Eastern and Western Region under the statutory powers which the adaptation of Laws (Conduct of Criminal Proceedings) Order, 1958 (L.N. 65 of 1958), purported to transfer to them. Before the series of constitutional changes which started with the establishment of a federal form of constitution in 1954, s.52(2) of the Criminal Code provided that a person should not be prosecuted for an offence under s.51 without the written consent of the Attorney-General, which until the 30th September, 1954, meant the Attorney-General of Nigeria. The Nigeria (Constitution) Order in Council, 1954, provided for an Attorney-General of the Federation and an Attorney-General of each Region, all of whom were to be members of the public service, and s.52(2) of the Criminal Code was adapted by the Adaptation of Laws Order, 1954, so as to require the written consent of the Attorney-General of the Federation or of the Region concerned for a prosecution for an offence under s.51. The Nigeria (Constitution) Amendment Order in Council, 1958 (hereinafter called the Order in Council) amended the Constitution, so that in the Eastern and Western Regions the Attorney-General should no longer be a member of the public service, and at the same time establish in each of these Regions the office of Director of Public Prosecutions, of which the holder would be a member of the public service and would assume, in relation to the conduct of criminal proceedings, the functions which had previously been carried out by the Attorney-General of the Region.
Section 110(1) of the Order in Council provided as follow
The Governor-General may, by Order published in the Official Gazette of the Federation, at any time within twelve months safter the commencement of this Order provide that any existing law shall be read and construed with such adaptations and modifications as may appear to the Governor-General to be necessary or expedient
for bringing the provisions of that law into accord with the provisions of the principal Order, as amended by this Order, or otherwise for giving effect or enabling effect to be given to those provisions: and any existing law shall have effect accordingly from such date as may be specified in the Order, not being a date earlier than the commencement of this Order.”
The Adaptation of Laws (Conduct of Criminal Proceedings) Order, 1958 (hereinafter called the Adaptation Order), purported to be made under the powers conferred by s. 110 of the Order in Council, and inserted a new subsection (3) in section 1 of the Criminal Code, which reads as follows:-
“In the application of this Ordinance to the Western Region and the Eastern Region a reference to the Attorney-General of the Region shall mean the Director of Public Prosecution of the Region.”
If the Adaptation Order was a valid one, the Director of Public Prosecutions of the Western Region was a person whose consent was sufficient, in August, 1959, for a prosecution under s.51 of the Criminal Code, and the written consent of the Director of Public Prosecutions of the Region, dated the 15th August, 1959, was produced in the Magistrate’s Court on the 31st August, 1959 the first day of the trial. Chief Okorodudu submits that the Adaptation Order was invalid on the ground that it was made and published before the enabling provision had come into operation. The Order in Council was made on the 14th March, 1958, and did not come into operation until the 1st April, 1958. The Adaptation Order was made on the 26th March, 1958, published in the Supplement to the Gazette of the 26th March, 1958, and expressed to come into operation on the 1st April, 1958.
The Order in Council is to be construed as one with the Nigeria (Constitution) Order in Council, 1954, which means that by virtue of s.2(8) of the 1954 Order in Council the Interpretation Act, 1889, is to apply for the purpose of interpreting both Orders in Council as it applies for the purpose of interpreting an Act of Parliament, save as is otherwise provided by the orders themselves or required by the context. Section 37 of the Interpretation Act, on which S.19 of the Interpretation Ordinance of Nigeria is based, provides for the exercise of statutory powers between the passing and commencement of an Act and is clearly sufficient to validate the adaptation Order, unless it can be said that the contrary intention appears. Chief Okorodudu submits that the contrary intention appears in s.110 of the Order in Council, but so far from accepting this submission we consider that the concluding words of inspection (1), which lay down that a law adapted by an Order shall have effect accordingly from such date as may be specified in the Order, not being a date earlier than the commencement of the Order in Council, are designed to allow for the making of an Order between the making of the Order in Council and its commencement. We hold, therefore, that the Adaptation of Laws (Conduct of Criminal Proceedings) Order, 1958, was validly made, and that the Magistrate’s Court in the present case had jurisdiction.
It only remains to consider the appeal against sentence. The Magistrate imposed the maximum term of imprisonment for an offence under s.51 of the Criminal Code, one of two years. The High Court reduced it to one of twelve months, and the learned Judge suggested in his judgment that the Magistrate might have been influenced by the fact that the offence took place a few months before the Federal Elections, and by what the judge called “the almost hysterical agitation in this area against the Customary Courts.” Chief Okorodudu suggests that the appellant was led astray by the example of more eminent politicians than himself, and that a fine would be sufficient punishment. Having regard to the serious view taken by the courts
Other Citation: (1960) LCN/0843(SC)
