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AFRICAN PRESS LTD
ATTORNEY-GENERAL, WESTERN NIGERIA
BEFORE THEIR LORDSHIPS:
ATTORNEY-GENERAL, WESTERN NIGERIA
CONSTITUTIONAL LAW – Legislation – Federal – Constitution of 1963 (s.22(2) and (3) – Evidence Act, s.219 – (Criminal Code, s.50, s.51)
INTERPRETATION OF STATUTE – Legislation – Western Nigeria – Criminal Code, s.46, s.47
CRIMINAL LAW – Seditious publication – Defence of truth – Fair trial
PRACTICE AND PROCEDURE – Evidence – Minister’s refusal to produce documents – Subpoena if vague or Frivolous – Punishment for disclosure of evidence taken in private.
T.A.B. Oki, D.P.P. West and V.F. Osinibi for the Respondents.
BRETT, J.S.C. (Delivering the judgment of the Court): The appellants were convicted of publishing a seditious publication, contrary to section 47(1)(c) of the Criminal Code of Western Nigerian, in the form of an article in a newspaper called the “Nigerian Tribune”, of which the first appellant was the publisher and the second appellant the editor. On the 14th April, 1964, a vote of no confidence in the Government of the Region had been moved and rejected in the Western House of Assembly, and on the 16th the appellants published the article complained of on the front page of the paper, under the heading
“Front Page Comment Where do we go from here?”
After saying that the opposition in the House of Assembly had “neatly marshalled a catalogue of reckless squandermania and abuse of office against the government”, the article goes on to promise that ‘To-day the Nigerian Tribune will take the pain to review these charges one by one”. It then proceeds to refer to a number of the charges that had been made, and of the replies to the charges, and to offer its own comments. The article is by any standard a robust piece of invective. Eight extracts from it are singled out in the charge before the High Court as showing that the intention was seditious, and it is only fair that the prosecution should thus indicate the passages on which it relies, but In judging the intention of a publication the court must look at the publication as a whole. The language of the article is abusive throughout, but if the right to freedom of expression is to be given its full effect the court must be satisfied that it went beyond the bounds of what is permissible in political controversy, and that the intention could fairly be called seditious. The prosecution submitted that it came within paragraphs (a), (c) and (d) of the definition of a seditious intention in section 46 of the Code, as manifesting an intention or excite disaffection against it, to raise discontent or disaffection or to promote feelings of ill-will and hostility between different classes of the population.
The trial judge held that the seditious intention was plain from the words of the article. The appellants submit that he was wrong in this, and that they were unfairly hampered in putting forward their defence by a claim of privilege which prevented production in evidence of a number of government files from which they maintain that they could, or at least might, have established the truth of what they said. On this point the law is set out in the following passage in the judgement of Ademola, C.J.F., in D.P.P. v Obi (1961) All N.LR. 186, 195, in which he deals with the effect of subsection (3) of the section of the Federal Code which corresponds with section 46 of the Regional Code
“In my view the purpose of this subsection is to enable the prosecution to rely on the act or the words or the document itself without calling any extrinsic evidence to prove the intent, but the subsection cannot be construed so as to deprive a person of his right to show that his only intention is one of those set out in the exceptions to section 50(2) and for this purpose truth may be a relevant consideration. Our attention was called to the case of The Attorney-General v. Service press Ltd., 14 W.A.C.A. 176.
I do not think this case can be an authority that truth can never be a relevant consideration. As may be gathered from the last two paragraphs of the judgment in that case, that was a clear case of seditious intention in what was published in which truth could not be a defence.”
Counsel for the appellants did not make a detailed examination of the passage set out in the charge and we do not propose to do so here. The article was prima facie seditious and if the appellants maintained that their only intention was one of those set out in the exceptions it was for them to satisfy the court that on the balance of probabilities this was so. The chief argument in this court was whether the appellants had discharged this burden or been unfairly prevented from doing so. However, before considering the submission that the defence was unfairly hampered we think k right to refer to a passage which occurs early on in the article, and which may be thought to illustrate how deep the appellants’ regard for the truth was. The passage reads:
‘The government has leased a house at Ikeja at £2,500 a month and ten years rent had been paid in advance. In simple arithmetic £250,000 had been paid out a sum which is sufficient to build a small sky-scraper in Nigeria.”
It was true that the government had leased a house in Ikeja, but no other statement of fact in this passage was true. The rent was £2,500 a year, not £2,500 a month, and the payment in advance was one year’s rent, not ten years’ rent, in deed the duration of the lease was only two years absolute. Even the “simple arithmetic” was wrong since ten years’ rent at £2,500 a month would be £300,000, not £250,000. It may be said that no reasonable person would take such an allegation at its face value, but newspapers may be read by or to people who are not competent to see the unlikelihood of such a story and the fact that it could be set out in all apparent seriousness indicates how far the appellants were prepared to go in attacking their political opponents. It is no excuse to say that the allegation had been made in the House of Assembly and not denied; no government can be regarded as admitting every wild allegation which has been made against it and not specifically denied in an acrimonious debate on a motion of censure, and the editor of a newspaper must be well aware of this.
Among the accusations which the article made against the government, there were three which the appellants tried unsuccessfully to support by calling for the production of government files. They tried to show that the rent of the house in Ikeja was excessive even at £2,500 a year by calling for the file containing the advice of ‘the expert’. A further passage complained of concerned a newspaper called the “The Daily Sketch”, which was published at government expense; there was evidence that the person holding the office of Permanent Secretary to the Ministry of Finance was registered under his own name as the publisher, and that the estimates of government expenditure made no direct reference to the newspaper. The suggestion was that a deliberate attempt was being made to conceal the fact that the newspaper was a government publication and to pass it off as an independent publication, and the defence called for the files dealing with the policy regarding the foundation of the paper. In support of various allegations of what they referred to in such terms as “squandermania”, “abuse of office”, “misuse of money held in trust for the people”, and fraudulent diversion of public money for private purpose”, they called for the files of the Ministry of Trade dealing with “Industrialization and Industrial Project”, of which it was said in evidence that there were about 400. In each case production was refused on the strength of a certificate under the hand of the Minister concerned in accordance with section 219 of the Evidence Act and stating merely that the Minister was satisfied that the production of the document was contrary to the public interest.
Counsel for the appellants agrees that the court must accept the production of such a certificate as conclusive, and that it has no power to compel the Minister to give reasons for the view he has formed. It remains the duty of the court to uphold the right to a fair trial, and H in a criminal case there are reasonable grounds for supposing that the exclusion of evidence by such a certificate might have prejudiced the accused in making his defence, the court is bound to say that the prosecution has not proved its case beyond reasonable doubt. In the course of argument we called the attention of the Director of Public Prosecutions to proviso (b) to section (22)(3) of the Constitution of the Federation, under which the court may take evidence in private if the Minister certifies that it would not be in the public interest for it to be publicly disclosed. Anyone improperly disclosing such evidence subsequently would be punishable for a contempt of court and we trust that whenever possible Ministers will adopt this middle course rather than that of excluding relevant evidence from the consideration of the court. The Minister is made the judge of what the public interest requires, but he must weigh one consideration against another, and he should be reminded that it is always contrary to one facet of the public interest if relevant evidence is excluded. The relevance of evidence is for the court, not the Minister, to decide and where a subpoena is applied for on frivolous grounds it may be set aside by the court on a motion brought for that purpose, as was done in R. v. Agwuna (1949) 12 W.A.C.A. 456; the same applies to a subpoena which is bad for vagueness.
In deciding whether the appellants have suffered any genuine prejudice it is material to consider the evidence actually given for the defence. Whatever his counsel may have done, when the second appellant came to give evidence he made no attempt to justify the article as being based on the truth, indeed he abstained from saying that he believed it was so based. In his evidence in chief he said:
“I did not put the allegations contained in Ex. “E” as my own. I merely drew conclusions from what was said by both the Government and by the Opposition. I based my editorial comments on the Proceedings (Ex. “Q”). I admit that a portion of the comments is not contained in the proceedings (Ex. “Q”). 1 never personally make any allegation of squandermania and abuse of office against the government. I was merely referring to what was said by the Action Group Opposition in the House. I made it clear in Ex. “E” that I was merely reviewing these charges one by one.”
This is disingenuous. If the appellant’s intentions are to be gathered from his words he was not merely reviewing the charges’ he was amplifying them and adopting them as his own, embellished with a number of abusive epithets and the article itself contains the words ‘The Nigerian Tribune is directing the attention of the nation to other ugly spots which the Opposition did not mention.”
Since the intention is the test of whether a publication is seditious, we do not consider that a defendant whose own evidence shows that his charges were based on mere suspicion, or on an uncritical acceptance of allegations made by others, can demand a disclosure of everything that passes within a government office in the hope that he may find something that would justify his charges, or complain that he was prevented from showing that his intention was an innocent one If such a disclosure is not made. The appellants called no evidence tending to show that the rent paid for the house in Ikeja was excessive, and the second defendant in his evidence did not touch on the point. We do not consider that any prejudice has resulted from the claim of privilege for the expert’s advice. As regards the 400 files dealing with Industrialization we agree with the Director of Public Prosecutions that this was a mere ‘fishing” application and that the subpoena might have been set aside for vagueness; here again, though we regret the method adopted, we consider that no prejudice has resulted. As regards the formation of the Daily Sketch newspaper we consider that on the facts brought out in evidence there is a possibility that something helpful to the appellants was excluded by the claim of privilege, and so far as the conviction rested on the finding that the passages dealing with that matter were proof of a seditious intention we should not be prepared to uphold it.
We have considered the wording of the article as a whole and the evidence about how it came to be written and we are satisfied that the trial judge was right in holding it to be seditious. We have said enough to indicate its general purport, and we think it unnecessary for this court as an appeal court to analyse the article in detail. but we would make special mention of one passage, which no attempt has been made to justify in argument, and as to which counsel agreed that the defence was in no way hampered by the claim of privilege. The passage begins with a quotation from a speech made by one of the Ministers in the debate on the 14th April -’The government had aroused awareness among the Yorubas.” It then makes the following comments
‘We are shuddered to understand what the government meant by this. In other words, the government had succeeded in inciting the people it governs to rise against other ethnic groups in the federation. Perhaps this point will impress the federal government to think of a law which will prevent some unscrupulous tribal politicians who are out to upset the existence of the federation. The incitement of any tribe against another tribe must be made treasonable offence.”
No reasonable tribunal could hold a perverse and unfounded accusation of this kind, when made against the government of a Region, to be anything but seditious
On these grounds the appeals are dismissed and the convictions are upheld. Each appellant originally applied for leave to appeal against sentence but these applications were withdrawn when the appeals came to be argued and do not concern us.