Joseph A. Agbachom V. The State (1970)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

In suit C/16/1969 in the High Court Calabar the accused was charged with contempt of court in the following terms-
“In paragraph 5 of an affidavit in support of a motion filed by your solicitor on 9-6-69 in suit No. C/16/69 in which you are 2nd defendant you stated as follows:-    .
‘ That the Oban (Nigeria) Rubber Estate Ltd. paid to his Lordship the sum of N488:15s being balance out of 700 guineas legal debt on the 10th day of April, 1969, out of the trust fund.

By that statement I understand you to mean that I clandestinely while a judge collected the said sum without your knowledge or authorisation and that what I call ‘legal debt’ is not in fact a debt owed to me. This false imputation of yours has lowered the dignity and authority that belongs to this court.”

On the 24th of July, 1969 Bassey J., found that the accused guilty and sentenced him to a fine of N75 or to imprisonment for 3 months, and against that decision the accused has appealed to this court.

The charge arose because the accused was a defendant in a civil action and through his counsel he applied by motion to Bassey J. for an order to transfer the case to another judge and for the purposes of that application the accused swore an affidavit which inter alia stated:-
“3. That on the instructions we have given to our solicitor, including documents submitted he has advised us and we verily believe that he would serve a witness summons on his Lordship the judge to give evidence in this suit.

4. That in particular in letter dated 20th March 1968 addressed to the Oban people by Mr. P.O.E. Bassey (as he then was) parts of which read as follows:-
‘….In the 1950’s I spent all I had on a bogus lorry which Edet Asuquo went and bought for Oban. And although I have appealed to the town several times in the past to refund my expenditure, nobody paid any heed. As I have become convinced that some Oban people are always interested in my downfall, I have decided to take steps to protect myself.

These people, will however, by the help of God never see my downfall… The town has behaved to me as if I was her slave. Even those trained in other places out of the funds of the people have not been treated with the spite, malice, ill-will and ingratitude that Oban people have shown to me. I am now determined that this will not happen again.

I tendered professional advice for the town to take legal steps to set aside the decision of the arbitrator yet my advice was turned down for reasons best known to you. I have kept quiet all this time because I felt you had no money. But now I am determined to recover all my expenses, minus the lorry, from you people before you squander the next rent. . . ‘
and in view of this my solicitor informs me and I verily believe that it would not be proper for his Lordship to take this case.
5. That the Oban (Nigeria) Rubber Estate Ltd. paid directly to his Lordship the sum of #488’15s being balance out of 700 guineas legal debt on the 10th day of April 1969 out of the trust fund.”
When the application came before Bassey J. there was argument on whether the affidavit contained sufficient material to warrant the application being granted and after hearing counsel on both sides Bassey J. according to the record apparently said –
“For 1st defendant to say he is Oban and Oban is himself is a fact which should have been alleged in the affidavit. The court has been put into a position it has to defend itself. I shall put the deponent into the witness box”
and then the learned trial judge put the accused in the box and it would seem himself examined him as the record reads –
“I live at Oban, farmer. I see this letter. It is the letter quoted in my affidavit. Mr. Oku has not objection. Mr. Okon has no objection. Letter admitted exhibit 1.
Look at this document: is that the authority you gave to Oban (Nigeria) Rubber Estates Limited to pay ‘a3488 15s to me. Yes. Mr. Oku has no objection. Mr. Okon has no objection. Admitted exhibit 2.
Exhibit 2 was given in respect of arbitration you conducted for Oban while you were a practising lawyer. It is in respect of final payment of professional fees. XXM by Mr Oku: I was not compelled by my counsel to make the affidavit in support of my application. XXM by Mr. Okon: No question.”

The learned trial judge then apparently himself drafted the charge to which we have earlier referred and after asking the accused if he had any:-thing to say why he should not be punished for contempt he granted the accused an adjournment to consult his counsel and the next day the accused pleaded “not guilty”. Mr. Oku who was counsel for the accused then objected to the charge on the ground that the accused could only be tried on indictment or information and after reserving his ruling to the following day

Bassey J. gave it then and concluded by saying –
“It is my view that an affidavit before the court that amounts to contempt of court is as much contempt before the court as any other act before the court. Besides, it appears to me that information or indictment need not be resorted to if it would be calculated not to serve the end of justice. I therefore rule that the court could proceed by summary trial in the case.”
Then once again it appears the learned trial judge began to examine the accused as the record reads-    ‘
“This is the authority Oban people gave to the Oban (Nigeria) Rubber Estate Limited to pay you #488’15s signed it. Mr. Oku has no objection. Authority admitted as exhibit 1.
Mr. Oku wishes to tender statement of account between Oban people and Oban (Nig.) Rubber Estate Ltd. Admitted and marked exhibit 2. Mr. Oku tenders another letter which he said he received from the Registrar of the High Court, admitted and marked exhibit     3. Mr. Oku addresses. Paragraph of the affidavit of 5-6-69 was made in good faith stating the facts which are quite correct.
Mr. Oku seeks to tender a copy of the affidavit in question. Affidavit admitted and marked exhibit 4.
Paragraph 5 of exhibit 4 is intended to roundoff a statement in paragraph 4 of exhibit 4. In exhibit 2 it is shown that the sum of 488:15s paid by Oban (Nigeria) Rubber Estates Ltd. has been accounted for.
Looking at paragraph 5 of exhibit 4 I would submit that it is an innocuous statement of facts which existed then.
Court: Mr. Oku look at the paragraph 5 of exhibit 4 without indicating that the money was paid by their authority, does it not give a reflection.
Mr. Oku: I now see your Lordship’s point and I am sorry. No reflection at all was meant.
In his judgement on the 24th of July, 1969 the learned trial judge after setting out the charge said-
“It appears to me this is an imputation of misconduct. Exhibit 1 tendered in the proceedings and which was signed by the accused himself with others shows that the sum arose out of balance of the professional fees of 700 guineas and its payment was authorised by the exhibit.
The exhibit reads as follows-

‘Oban People
Oban Town,
Calabar.
14th August, 1968.

The Senior Manager,
Oban (Nig.) Rubber Estates Ltd., Oban Town,
P.O. Box 236,
Calabar.
Dear Sir,
Authority
We the undersigned, for ourselves and on behalf of the people of Oban Town, hereby authorise you to pay on our behalf from the 1968 land rent due to us the sum of #488:15s (four hundred and eighty eight pounds, fifteen shillings) to Mr P.O.E. Bassey, being fees owed to him by us for his professional services.
On payment of the said sum to Mr. Bassey, you will accordingly deduct the money from the 1968 rent. This could be done by sending you a receipt as if the money was paid to us.’
At the foot of the exhibit appear the following: ‘Copy Mr Bassey for information please.’
Exhibit 2 tendered by accused clearly shows that they are aware that the sum in exhibit 1 had been paid and that they had complied with their stipulation in exhibit 1 as regards the payers.
The offending affidavit was admitted as exhibit 4. Is this contempt of court and is this contempt in the face of the court
Section 133 of Cap. 30, Laws of the former Eastern Nigeria, 1963, still applicable to the South-Eastern State of Nigeria by virtue of section 1(5) of the States (Creation and Transitional Provisions) Decree, 1967, in part reads as follows:
Any person who
(a)
(b)
(c)
(d) While a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceedings, or capable of prejudicing any person in favour or against any party to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being had or taken is guilty of a simple offence, and is liable to imprisonment for three months.
I think this false imputation was calculated ‘to lower the authority of’ the person before whom the proceeding in the application by the defendants for the transfer of the suit to another court was pending.
Quite apart from the above section s. 6 of the Criminal Code Law, Cap 30 retains the inherent jurisdiction of this court to punish for contempt of its authority.”,
and concluded his judgement by saying –
“Mr Oku in his address said paragraph 5 of exhibit 4 was a rounding off of what had been said earlier. He further submitted that the para:-graph was made in good faith, stating facts, and no harm was meant. That may well be so, but harm has been done and mens rea is not a constituent of criminal contempt: Reg. v. Odhams Press Ltd. [1956] 3 All E.R. 494.
The purpose of the affidavit and paragraph 5 in particular of exhibit 4 was to obstruct or delay the hearing of the case; for up till now pleadings have not been ordered in the suit.

I hold that a contemptuous affidavit before the court is as much a criminal contempt in the face of the court as any other contempt justifying summary attachment: R. v. Gray [1990] 2 Q.B. 36. for the reasons stated I find the accused guilty.”
Now the first and fundamental point taken by Mr. Lardner on this appeal for the accused is that the paragraph in question in the affidavit which read-
“5. That the Oban (Nigeria) Rubber Estate Ltd. paid directly to his Lordship the sum of N488’15s being balance out of 700 guineas legal debt on the 10th day of April, 1969 out of the trust fund.”
did not on its face amount to contempt of court. It was made in support of a perfectly normal application for transfer of the civil case to another judge, because Bassey J. when earlier a legal practitioner had dealt with the matter, and was stating true facts. It only stated that the learned trial judge was paid a legal debt. Mr Ekong for his part initially argued that there was an implication that something immoral had been done in paying out of the trust fund, that it implied the judge collected the money without authority and that whilst legally due to the judge it was paid in an unauthorised way. He however conceded that it was not specifically so stated in the affidavit that the money was paid in an unauthorised way but he submitted that such was the “undertone”. He further conceded it was never stated that the learned trial judge was not entitled to the money but as a possible aspersion, he submitted might be found in the inverted commas round the words “legal debt”. Finally on this point he conceded that it was possible to draw from the paragraph in question in the affidavit two possible conclusions only one which was adverse to the accused and could be considered contempt.

To our mind, since a contempt of court is an offence of a criminal character, it must be proved beyond reasonable doubt. Therefore, where as in the present case, there are two equally likely possibilities open to the court when considering the act complained of, it is not proper to hold that the offence of contempt has been proved beyond reasonable doubt. (See In re Bramblevale Ltd. [1969] 3 W.L.R. 669 at 705). This view is all the more important if we advert to the observation of Lord Atkin in the Privy Council in Ambard v. Attorney-Generalfor Trinidad and Tobago [1936] A.c. 322 at p. 335 which reads:-