Journalists and matters pending before law courts

Last week, DAAR communication plc, owners of Ray Power/AIT went to court to enforce its right to free dissemination of information. It instituted a suit at the Federal High Court, Abuja against the Minister of Information and Communication, Prof Dora Akunyuli, National Broadcasting Commission (NBC) and the Attorney-General of the Federation, over plans to withdraw […]

Last week, DAAR communication plc, owners of Ray Power/AIT went to court to enforce its right to free dissemination of information. It instituted a suit at the Federal High Court, Abuja against the Minister of Information and Communication, Prof Dora Akunyuli, National Broadcasting Commission (NBC) and the Attorney-General of the Federation, over plans to withdraw the network license of Ray power and AIT.

First, this clarification; the press owes it a duty to the public to comment on cases in court, irrespective of the issuance of a writ.

The Social Responsibility of the press in commenting on issues of public interest has often been circumscribed by certain legal constraints that can sometimes be termed “Legal Censorship”.  Often, this censorship is self-inflicted, partly due to misconception of practitioners and partly due to ignorance.

In Nigeria, horrendous crimes are often perpetrated and while non-committal legal steps are taken by authorities to prosecute such crimes, the caveat is clothed in the garb of the sub judice doctrine that supposedly puts a lid on further discussions on the subject matter. And unfortunately, the press over the years has been cowed due to this misconception that once a case is in court, it cannot make any comment, no matter how innocent and well intentioned. It is rather unfortunate that the press has been hoodwinked or misinformed, of the true position of its responsibility.

Duty to the public

The press owes it a duty to the public to comment on cases in court, irrespective of the issuance of writ as long as they don’t prejudice the outcome of the case. However, it is pertinent here to first take a look at Section 133 (4) of the Criminal Code as it relates to comments on pending judicial proceedings.

It states: “Any person who, while a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceedings or capable of prejudicing any person in favour of or against any person before whom such proceeding is being heard or taken…is guilty of a simple offence and liable to imprisonment for three months”.

In other words, the following conditions should be present:

•     There must be a pending judicial proceeding

•    The offender must have made use of any speech or prejudicing any person in favour of or against any party to such proceedings;

•    The write-up must have been calculated to lower the authority of any person before whom such proceeding is being heard.

Contempt can either be committed in facie curiae that is, (in the face of the court) or ex facie curiae (out of the face of court). In the case of in facie curiae, the court has the power to deal with it summarily because it is contempt right in the presence of the judge. He needs no other evidence or witnesses.

However, in the case of contempt ex facie curiae, these include when a writer misrepresents judicial proceedings or parliamentary proceedings or when a write-up is capable of “prejudicing any person in favour of or calculated to lower the authority of any person before it when such proceeding is being taken or heard or commits any act of intentional disrespect to any judicial proceeding, or to any person whom such proceeding is being heard or taken”.

In Akinrinsola v. A.G. Anambra State(1980)2NLR 17, the court held that a publication of a general comment on a matter, which is related to a court proceeding presided over by a judge and without any specific reference to the court trial, cannot be held to be contemptuous of the court.

Justice V. J. Chigue in Bello v. Sanni(KDH/1/81), posited that matters of public interest should be open for discussion notwithstanding the issue of writ.  Contempt, he explained, is not committed unless there is real and substantial prejudice to a pending litigation, which is actively before a court.

This was a case in which the Deputy Solicitor-General of Kaduna State brought to the notice of the court a publication in National Concord of March 16, 1981 with the headline “Forces behind Musa’s recalcitrance” being part of text of a press conference held by Chief A.M.A. Akinloye, the Chairman of the defunct National Party of Nigeria (NPN). The story came out during the pendency of a case against Alhaji Balarabe Musa, then Governor of Kaduna State. The defendants felt that the text of the press conference was contemptuous. But Justice Chigbue stated that contempt is not committed unless there is real and substantial prejudice to pending litigation.

Having read the text of the press conference, the judge said: “it makes no reference or comments on the instant case in any way to show that there are real and substantial danger of prejudice to the fair trial of the action.”

The judge went on to lay the basis of press freedom. He said, “I hold that there is something far more important in the publication. It is the freedom of speech, the inalienable right of every citizen and the press to make fair comment, even outspoken comments on matters of public interest.  This is one of the bedrock of our individual liberty –freedom of speech as entrenched under Section 36 of the Constitution of the Federal Republic of Nigeria, 1979”.

In R.V. Metropolitan Police Commissioner(Ex parte Blackburn (No.2)(1968)2QB 150, late Lord Denning MR held: “It is the right of everyman in parliament or out of it in the press or even the broadcast, to make fair comment, even outspoken comment, on matters of public interest”.

Lord Salmon, in agreeing with Lord Denning in the case posited: “It is the inalienable right of everyone to comment fairly upon any matters of public importance. This right is one of the pillars of individual liberty – freedom of speech… no criticism of a judgment, however, vigorous can amount to contempt of court provided it keeps within the limit of reasonable courtesy and good faith.  The criticism here complained of, however wide off mark, whether expressed in good taste or in bad taste, seems to me to be within those limits”. This position was well adumbrated in the case of Thompson v. Times(1969)3ALL ER at 651 where Lord Salmon held:-

“It is widely held fallacy that the issue of a writ automatically stifles further comment. There is no authority that I know of to support the view that further comment would amount to contempt of court.

Once a newspaper has justified and there is some prima facie support for the justification, the plaintiff cannot obtain an interlocutory injunction to restrain the defendants from repeating the matters complained of. In these circumstances, it is obviously wrong to suppose that they could be committing contempt by doing so. It seems to be to be equally obvious that no other newspaper that repeats the same sort of criticism is committing a contempt of court. They may be publishing a libel, and if they do so, and they have no defence to it, they will have to pay whatever may be the appropriate damages; but the writ does not, in my views, preclude the publication of any further criticism.

It merely puts the person who makes the further criticism on risk of being sued for libel and he takes the same risk whether or not there has been any previous publication.

I appreciate that very often, newspapers vary about repeating criticism when a writ for libel has been issued because they feel they are running some risk of being proceeding against for contempt. Without expressing any final view, because the point is not before this court for decision, I think that in this, they are mistaken. No doubt, the law relating to contempt could and should be clarified in this respect”.

Richard Akinnola is the director of Media Law Centre, Lagos