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IN THE MATTER OF THE COMMITTAL FOR CRIMINAL CONTEMPT OF COURT OF BEDIAKO KAKARI POKU AND ANOTHER
AND
IN THE MATTER OF SECTION 19 OF THE WEST AFRICAN COURT OF APPEAL ORDINANCE (CAP. 5)
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
16TH DAY OF NOVEMBER, 1951
2PLR/1951/60 (WACA)
OTHER CITATION(S)
2PLR/1951/60 (WACA)
(1951) XIII WACA PP. 277-281
LEX (1951) – XIII WACA 277-281
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BEFORE THEIR LORDSHIPS:
VERITY, Ag. P.
LEWEY, J.A.
JIBOWU, J.
ROBINSON, J.
GREGG, J.
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BETWEEN:
IN THE MATTER OF THE COMMITTAL FOR CRIMINAL CONTEMPT OF COURT OF BEDIAKO KAKARI POKU AND JOHN ERNEST JANTUAH
AND
IN THE MATTER OF SECTION 19 OF THE WEST AFRICAN COURT OF APPEAL ORDINANCE (CAP. 5)
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ORIGINATING COURT(S)
Reference by the Governor of the Gold Coast, W.A.C.A. 3640
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REPRESENTATION
Young, Crown Counsel, Gold Coast — for Attorney-General Gold Coast
Bentshi Enchill — for Petitioners
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Committal for criminal contempt – Reference by the Governor to Court under Section 19 of the West African Court of Appeal Ordinance – Court no power to entertain reference – Section 19 only applies to criminal cases conducted in accordance with procedure relating to ordinary criminal trials as prescribed by the criminal code – Contempt proceedings not so conducted – Committal for contempt not a conviction – Court no power to entertain reference.
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CASE SUMMARY
The Governor of the Gold Coast acting under section 19 of the West African Court of Appeal Ordinance (Cap. 5 referred to this Court the proceedings committing the petitioners for a criminal contempt of Court. The Court considered that, having regard to section 9 of the said Ordinance, no reference could be made, unless there was also a right of appeal to the Court. It was conceded that in England the Court of Criminal Appeal had no power to hear appeals from committals for contempt of Court.
The petitioners relied on the case of Rex v. Animashaun (3). The Court held that, in so far as that case purported to decide that there was an appeal from a committal for contempt it was wrongly decided.
It was also argued that differences in wording between the English Statute conferring a right of appeal to the Court of Appeal, and the wording of the West African Court of Appeal Ordinance, “let in” appeals from committals for contempt.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. Section 19 of the Ordinance applies and is only intended to apply to ordinary criminal cases, the proceedings in which follow the procedure laid down in criminal cases under the Criminal Procedure Code of the Gold Coast (Cap. 10).
2. It is patent that committals for contempt of a criminal nature are not conducted in accordance with such procedure which has no relation to them. A committal for contempt of Court is not a conviction from which an appeal lies to the West African Court of Appeal and the Court had no power to entertain the reference.
Cases referred to:
(1) Ex parte Fernandez (1863), L.A.C.C.P., Vol. 13 (N.5)
(2) O’Shea v. O’Shea & Parnell (1890), 15 P.O. 59
(3) Rex v. Animashaun, 4 W.A.C.A. 144
(4) Nokes v. Doncaster Amalgamated Collieries (1940), A.C. 1014
(5) Cox v. Hakes (1890), 15 App. Cases, 506
(6) Ambard v. Attorney-General of Trinidad and Tobago, (1936), A .C. 322
(7) Parashuram Detaram Shandasani v. The King-Emperor (1945), A.C. 264. D. L. Bate for Attorney-General, Nigeria, at request of Court as amicus curiae
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, Ag. P.
This is a reference by the Governor of the Gold Coast purporting to be made under section 19 of the West African Court of Appeal Ordinance (Cap. 5 of the Laws of the Gold Coast, 1936), which provides that the Governor may refer to this Court either the whole case or any point arising therefrom, on the consideration of any petition for the exercise of the prerogative of mercy “having reference to the conviction of a person by or in the Supreme Court … or to the sentence (other than sentence of death) passed on a person so convicted. … “
The petition in the present matter has reference to the committal of the petitioners by the Supreme Court for a contempt of Court in the nature of what is known as “criminal contempt”.
The first point referred by the Governor is whether this Court has jurisdiction to entertain a reference under section 19 in such a case.
The question is one of considerable importance for, having regard to the provisions of section 9 of the Ordinance, which are substantially the same in relation to the right of appeal as are those of section 19 in relation to a reference thereunder, the opinion of this Court on the point first referred by the Governor will in effect determine also whether in such a case as the present there is a right of appeal to this Court.
The reference was considered by a full Court of five Judges and argument was addressed to the Court by Crown Counsel for the Gold Coast, Counsel for the Petitioners and by the acting Solicitor-General of Nigeria at the request of the Court as amicus curiae.
After hearing Counsel we held that this Court has no jurisdiction to entertain a reference under section 19, where the petition for the exercise of the prerogative of mercy refers to a committal for contempt of Court and stated that we would give our reasons at a later date.
In the first place it is clear that the contempt in the present case is what is known as a criminal contempt, and it is equally clear from the authorities cited to us that any proceedings leading to committal therefor are, for the purpose of determining whether there is in England a right of appeal to the Court of Appeal, proceedings in a criminal cause or matter. There can be no doubt, moreover, that a number of eminent Judges have described a committal for criminal contempt as “in effect summary conviction for an offence against the law” (Willes, J., in Ex parte Fernandez (1) or “summary conviction for a criminal offence” (Lindley, L.J., O’Shea v. O’Shea and Parnell (2).
The real issue in the present matter is, however, not whether it is a criminal cause or matter and not whether a committal therein may be described as a summary conviction, but whether the statute creating a right of appeal in criminal cases confers such a right upon any person so committed. It is conceded that in England that Court of Criminal Appeal Act (1907) confers no such right, but it is submitted that the Gold Coast Ordinance (Cap. 5) does so.
In Rex v. Animashaun (3) the learned Judges of this Court who entertained the appeal appear to have held the view that the Nigerian Statute analogous to the Gold Coast Ordinance and expressed in similar, if not identical, words, does confer this right on persons committed for criminal contempt and therefore, by analogy, the statute would confer on the Governor the power to refer such a case, and upon this Court the jurisdiction to entertain it. Counsel did not appear to rely upon this decision but, nevertheless, it is right that we should give it consideration. The appeal was from a summary conviction for perjury under section 42 of the Criminal Procedure Ordinance then in force in Nigeria, an enactment which provided (inter alia) that when it appeared to the Court that any person had been guilty of perjury in proceedings before it, the Court might try him summarily “as for a contempt of Court”.
With great respect for the learned Judges who decided that case, we are, nevertheless, of the opinion that they were led by a misinterpretation of these words to the conclusion that the issue before them was whether there was an appeal from a committal for contempt. In our view the words “as for a contempt of Court:” do not refer to the nature of the offence nor the nature of the proceedings, which remains a summary trial for the criminal offence of perjury. The words are purely procedural and substitute in such cases a particular form of procedure for the ordinary procedure under the Ordinance. While, therefore, it is beyond doubt that it was rightly decided that an appeal lay from a summary conviction for perjury, we are not able to adopt or follow the ratio decidendi which we think applicable to the real question which fell for determination.
It is clear, nevertheless, from the judgment in that case that the learned Judges held the view that the Nigerian West African Court of Appeal Ordinance confers a right of appeal against a committal for contempt of Court, and although their observations in this regard should, we think, be treated as obiter they are entitled to examination. Their Lordships observed that:-
“The reason why no appeal lies in England is the general rule that no appeal on the merits lies from a summary conviction for a criminal offence in the High Court. But here the law on this point is the opposite, having been changed in 1933. By the wide terms of section 9 of the West African Court of Appeal Ordinance the legislation (sic) has deliberately conferred upon all convicted persons the rights given by the section regardless of whether the conviction be had upon information or summarily.”
We would observe in passing that we do not find ourselves altogether in agreement with the learned Judges as to the reason which they ascribe for the absence of such a right of appeal in England, nor with their statement that here the law is “the opposite”. Nor can we agree that section 9 of the Ordinance confers a right of appeal “upon all convicted persons … regardless of whether the conviction be had upon information or summarily,” for neither in the Nigerian nor in the Gold Coast Ordinance does the relevant section confer any right of appeal to this Court from summary conviction before a Magistrate “. Nevertheless, it is apparent, we think, that the learned Judges had in mind the fact that while the English statute confers a right of appeal upon any person convicted “upon indictment or information” the local statutes omit these words and instead confer the right upon any person convicted “by or in the Supreme Court” (Nigeria) or “by or in a Divisional Court or by any Judge” (Gold Coast). It was apparently their Lordship’s view that this difference determined the matter, and indeed it is this view that is urged by Counsel.
We do not think that the question can be dealt with so simply, more especially when it is borne in mind that the omission of the words “upon indictment or information” in the local statute may readily be explained, not upon the supposition that the legislature intended to extend the scope of the enactment beyond that of the statute upon which it is modelled, but because the procedure in criminal proceedings in the Supreme Court of the Gold Coast and of Nigeria would make inapt the use of the words “indictment or information”. No cases are tried upon indictment in the Supreme Court and cases therein are not necessarily tried upon information, for by the Criminal Procedure Ordinance (Cap. 10) it is provided that ordinary criminal cases may be tried summarily in the Supreme Court.
Counsel did not indeed go so far as to submit that it was the express intention of the legislature to confer a right of appeal in the Gold Coast in criminal cases which does not exist in England, or, for instance, in Trinidad, where such cases are tried upon indictment in the Supreme Court and the local Ordinance is identical in respect of criminal appeals with the English Act. He did submit, however, that by the omission of the words “upon indictment or information” the legislature had “let in” appeals in cases of the present kind.
Where the Court is called upon to interpret enactments, the terms of which may be found to be ambiguous, it is proper to look to the general intention of the statute and in Nokes v. Doncaster Amalgamated Collieries (4) it was said
” … Where, in construing general words the meaning of which is not entirely plain, there are adequate reasons for doubting whether the legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction”.
So, as is pointed out by the learned author of Maxwell on Interpretation of Statutes, where section 19 of the Judicature Act, 1873, gave the Court of Appeal jurisdiction to hear appeals from “any judgment or order” save as thereinafter mentioned, it was held that this did not give an appeal against an order of discharge of a prisoner on habeas corpus. It was so held in Cox v. Hakes (5), partly on the ground that an order would be ineffective and partly on the ground that so important a change in the law was not contemplated by the legislature It is indeed necessary that general words should not be so interpreted as to carry the effect of any specific provision beyond the scope of the statute, for as the same learned author says (at page 85), it is regarded “as more reasonable to hold that the legislature expressed its intention in a slovenly manner than that a meaning should be given to them which could not have been intended”. We do not consider that it would be in accordance with the canons of good construction, therefore, to assume that in adapting to local procedure an earlier English statute upon which the Ordinance is patently modelled, the legislature intended, without the use of language clearly directed to that end, to extend the application and scope of the Ordinance to matters to which the original statute did not refer, and using the words of Counsel, to “let in” such other matters.
More especially is this so when by a consideration of the succeeding sections of the Ordinance it becomes apparent, as we think, that the section conferring a right of appeal was intended to confer that right only in cases which we may describe as ordinary criminal cases, in which there is a verdict based upon evidence (section 10) an information or charge. a trial by Judge or jury, the possibility of substituting a verdict for some other offence, a special verdict, a verdict of guilty but insane (section 11) orders for the payment of compensation (section 12). and other matters of procedure and of powers readily applicable to the hearing of appeals from convictions upon trial in accordance with the rules of procedure in ordinary criminal cases, but by no means applicable to summary committals for contempt.
It is obvious that this must be so for all these provisions are taken from the English statute which has no application to such committals, and so careful has the legislature been to make provision for the variety of questions that may arise in the trial of ordinary criminal cases and appeals from convictions therein that it would, in our opinion, be giving to section 9 a meaning which could not have been intended were we to hold that the scope of the statute was extended to “let in” matters for which no such provision has been made.
In our view, the Ordinance is intended to apply, and does apply, to ordinary criminal cases, the proceedings in which follow the procedure laid down by the law relating to the procedure in criminal cases (Cap. 10 of the Laws of the Gold Coast) It is patent that committals for contempt of criminal nature are not conducted in accordance with such procedure, which has no relation to them. The powers of the Court in such matters are specifically excluded from the operation of the Criminal Code (Cap. 9. section 12) wherein it is to be observed that in relation to other matters excluded, reference is made to the trial and punishment of persons, whereas in regard to contempt of Court no trial is mentioned. Clearly, therefore, the statutes recognise that such powers are not exercised under the Criminal Code or the Criminal Procedure Code and cannot be deemed, therefore, to be exercised in such ordinary criminal cases as those in which alone the right of appeal is conferred by the West African Court of Appeal Ordinance. That committals for criminal contempt are not such cases has indeed been recognised by the Judicial Committee of the Privy Council which, while making it clear that appeals in such cases may be entertained by His Majesty-in-Council in exercise of what was described by Lord Atkin in Ambard v. Attorney-General of Trinidad and Tobago (6), as “the general prerogative of the Crown to review all judicial decisions of Courts of record in the Dominions overseas, whether civil or criminal ” has held that, as was said by Lord Goddard in Parashuram Detaram Shamdasani v. The King-Emperor (7), in regard to such a contempt,
“although this matter is known as a criminal contempt it obviously is in a different. category from an ordinary criminal case”.
As, in our view, the scope of the Ordinance (Cap. 5) does not extend beyond the category of the ordinary criminal case to which alone its provisions are intended to apply, we are of the opinion tha.t a. committal for contempt of Court is not a “conviction” within the meaning of section 9 of the Ordinance, and that the same word as used in section 19 has no more extended meaning than in section 9.
It follows, therefore, that when the legislature in section 19 conferred upon the Governor power to refer to this Court cases arising from petitions having reference to the conviction of persons by or in the Supreme Court, such power was conferred only in cases in which the convictions were had in the course of ordinary criminal proceedings, and not in such a case as the present matter which is in a different category and not within the scope of the Ordinance.
As we must hold that the Governor’s power to refer does not extend to the present case we held that this Court has no jurisdiction to entertain the reference. The second part of the reference did not, therefore, arise.
Court no power to entertain reference.
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