Medial Law

• Pages: 183-221

Absolute privilege Para. 401

MEDIA LAW

(1) ABSOLUTE PRIVILEGE

401. Statements made in the course of proceedings are accorded with abso-

lute privilege.

“No action will lie for defamatory statements contained in a document properly used

in the course of any proceedings before a Court of justice….” Mr. Roland says that

the offending affidavit was not at all used in the proceedings in question as is shown

by the fact that it is nowhere mentioned in the record of those proceedings and that

privilege accordingly does not attach to it. As the document was not brought up in

open Court, he submits that it is not privileged on the authority of Furnis v. Cam-

bridge Daily News 23 T.L.R. 705.

Now before looking more closely at the law, I will make my findings on the

facts which are in dispute in this case on the basis of the record of proceedings in Suit

K/122/1966 (which has been put in evidence by consent) bearing in mind, of course,

that the onus is on the defendant to prove such facts as are necessary to bring the

words complained of within the privilege claimed. To begin with, I find that the of-

fending affidavit was sworn to on 13th November, 1967 in reply to an affidavit sworn

to by the present plaintiff on the 1st November, 1967. Putting these affidavits side by

side, that fact emerges perfectly clearly.

I also find that both those affidavits were filed in the course of the proceedings

in question. It is clear too that in his affidavit of the 1st November, 1967 the present

plaintiff had accused the present first defendant more than once of telling lies and

deliberately misleading the Court in a previous affidavit sworn to by the first defen-

dant in the proceedings.

Finally, I am satisfied that all the affidavits I have mentioned were considered

by Holden J. and in particular, were amongst those referred to by the learned Judge

in the following passage in his ruling in those proceedings on the 13th April, 1963: “On

the question of delay, Mr Horn has shown in a series of affidavits that there was utter

confusion in Intra Bank’s head office in Beirut at the time, and it was not until they

received two or three days warning that their share holdings were to be sold that they

realised what was happening in Nigeria to them. These averments are strongly chal-

lenged in counter-affidavits filed by the Bank of the North, and there is evidence that

service of the Writ was effected at the end of December 1966. I am not saying that

one side or the other has told me lies, though each accuses the other of exactly that.

I am satisfied on the balance of their evidence that Intra Bank has given a reasonable

and acceptable explanation of their failure to move this Court before Judgment.”

On the basis of those findings I have no hesitation in concluding that what was

said in the paragraph in the affidavit which has provoked the present action was said,

to use the language of Sir Baliol Brett, M.R. in Munster v. Lamb (supra), “with

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Paras. 401-403 Vol. 16: MEDIA LAW 184

reference to and in the course of an inquiry which was taking place”. As Brett, M.R.

went on to point out in a passage in his Judgment which I applied in Adene v. Oyeyemi

and another (NcH/5/69); unreported but noted in the Council of Legal Education’s

pamphlet No. 39 of 1969) once that is established, it matters not whether it was an

irrelevant statement or a statement actuated by malice, no action can be founded

upon it.”- Per Wheeler, J. in J.R. Foley v. Hannah Ibrahim Asfour and Intra Bank

S.A. Suit No. K/34/69; (1970) N.N.L.R. 74 at 76 – 77.

(2) ACCESS TO GOVERNMENT HELD INFORMATION

402. State privilege.

“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 day of April – “The

government had aroused awareness among the Yorubas.” It then makes the follow-

ing 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 to be

a 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 any-

thing but seditious.” – Per Brett, J.S.C. in African Press Ltd. and Ayo Ojewunmi v.

Attorney-General, Western Nigeria Suit No. SC 538/1964; (1965) 1 All N.L.R. 12

at 18.

(3) CONTEMPT OF COURT

403. Acts or words of the contemnor in a criminal contempt is directed at

the Court proceedings or Court officers.

“Although criminal contempts of Court may take a variety of forms they all share a

common characteristic: they involve an interference with the due administration of

justice either in a particular case or more generally as a continuing process. It is

justice itself that is flouted by contempt of Court, not the individual Court or Judge

who is attempting to administer it. See: – A-G. v. Leveller Magazine Ltd. (1979) 1

All E.R. 745 – Per Lord Diplock. Criminal contempt therefore resembles many ordi-

185 Contempt of Court Paras. 403-405

nary offences, such as theft or offences against the person or property by which the

interests of the victim himself are prejudiced more immediately than those of the

public at large.” – Per Mohammed, J.S.C. in Okonofua Vincent Omoijahe v.

Uwesu Umoru and Ors. Suit No. S.C. 196/92; (1999) 5 S.C. (Pt. 111) 14 at 23.

404. Legislative restrictions on the publication of Court proceedings.

“I will treat the appeal under S. 16 of the Court of Appeal Act, 1976 as if the

questions were referred to this Court by High Court. 1. Does S. 133 (9) of the

Criminal Code of Lagos State make it an offence to comment particularly in the

aforesaid words of the appellant and published by the second applicant on a judicial

proceeding that had been concluded in view of S. 33 (12) of the Constitution? 2.

Does any written law (and in particular S. 133 (9) of the Criminal Code of Lagos

State) make it an offence to comment particularly in the aforesaid words of the

appellant and published by the second applicant a judicial proceeding which had been

concluded having regard to S. 36 of the Constitution?

S. 133 (9) of the Criminal Code of Lagos State provides: “Any person who:

- commits any act of intentional disrespect to any judicial proceeding, or to any per-

son before whom such proceeding is being had or taken, is guilty of a simple offence,

and liable to imprisonment for three months.” Without any comments as to whether

the words amount to an offence under S. 133 (9) of the said Criminal Code Law, it is

sufficient to say at this stage that for the purposes of proceedings for contempt of

Court a criminal case remains sub-judice at any rate until the time within which

notice of appeal might be given expired, or, if an appeal is brought, until the appeal is

heard and determined: See Rex v. Duffy & Ors. Ex-parte Nash (1960) 2 All E.R.

891.” – Per Ogwuegbu, J.C.A. in Fawehinmi v. A-G. Lagos State (No. 2) Suit No.

CA/L/166/88; (1989) 3 N.W.L.R. (Pt. 112) 740 at 758 – 759.

405. Procedure for punishment for contempt of Court.

“I now come to the fact that in Deduwa’s case (supra) even though the Court held

that the letter written by the appellants to the Court “stinks with contempt”, they

nevertheless allowed them to go scot free because the wrong procedure was used in

trying them. The question then arises, what should have been the correct procedure?

In my view, the correct procedure should have been what was adopted in Atake’s

case i.e. immediately the Judge saw or read the offensive document he should re-act

sharply by calling on the author of the document to withdraw it at once and apologise.

If he did not do so, he should be put in the dock if there was one (not in the witness

box), but if there was none he should be allowed to stand wherever he was, and that

place considered as the dock. He should then be asked to show cause why he should

not be punished for contempt. If he did not show good cause, he should then be

“committed to prison” (not sentenced) until he purges his contempt.