Attorney-general Western Nigeria Vs The African Press (1965)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N. 

The Director of Public Prosecutions, Western Nigeria, initiated in the name of the Attorney-General, Western Nigeria, criminal proceedings against the two respondents in the High Court, Ibadan, by means of an information which he signed personally. The charges against them were laid under the following sections of the Criminal Code of the Region:-

1st Count. – Publishing seditious publication contrary to section 47(t)(c) of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.

2nd Count. – Publication of false news with intent to cause fear and alarm or to disturb the public peace contrary to section 54(1) of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.

3rd Count. – Publication of defamatory matters contrary to sec. 316 of the Criminal Code, Cap. 28 Laws of Western Region of Nigeria, 1959.

At the close of the case for the prosecution, the defence counsel called no evidence, closed the case for the defence and made his submission to which the Director of Public Prosecutions made a reply.

In a considered judgment the learned judge ruled that the proceedings in respect of the 1st count were null and void, and that count was struck out. In regard to counts 2 and 3, he found the defendants not guilty on each of these and they were acquitted.

The appellant has appealed to this Court against the ruling on the 1st count as well as the order of acquittal on the 2nd and 3rd counts. At the hearing of the appeal before us, however, the appeal on count 2 and that on count 3 were withdrawn or abandoned. We are therefore concerned with the appeal on the 1st count only, namely, the count relating to sec. 47(1)(c) of the Criminal Code of the Western Region of Nigeria, which reads:

“47.   (1) Any person who-

(c) prints, publishes, sells, offers for sale, distributes or reproduces seditious publication,

shall guilty of an offence…”

Sec. 48, sub-section (2) reads:-

(2) A person shall not be prosecuted for an offence under section 47 without the written consent of the Director of Public Prosecutions.”

Now, the objection taken before the learned trial judge was that since the enactment of the Criminal Code of the Western Region, the Republican Constitution of 1963 has placed the Director of Public Prosecutions under the Attorney-General (see sec. 47(1) of the Constitution of Western Nigeria), and that the words “Attorney-General” must be substituted for the words “Director of Public Prosecutions” in sub-section (2) of sec. 48 of the Criminal Code; and that as it was not proved that the Attorney- General’s written consent, which is a prerequisite, had been obtained before the prosecution was initiated, the prosecution on the 1st count was null and void.