Limits of Trial Publicity & Right to Free Speech: A Diagnostic Enquiry into the Recent Threat by Nigeria’s Court of Appeal to Penalize Public Discourse on Judicial Proceedings (By Sylvester Udemezue)

“I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion.”

~ Hon. Justice Samuel Alito, United States’ Supreme Court

 Background 

A news report on May 08, 2019 came under the headline, “We Won’t Accept Public Analysis of Our Proceedings, Presidential Tribunal Warns.” (see https://www.thecable.ng/we-wont-accept-public-analysis-of-our-proceedings-presidential-tribunal-warns accessed May 10 2019.  An online news medium, TheCable reported that the 2019 Presidential Election Petition Tribunal (2019 PEPT) had warned against public analysis of its proceedings. Handing down the warning in Abuja during the inaugural sitting of the Tribunal, President of Nigeria’s Court of Appeal and Chairman of the 2019 PEPT, His Lordship, the Hon Justice Zainab Bulkachuwa, lamented “the practice of analyzing court proceedings on social media,” threatening that offenders would be punished. While urging parties to the case, lawyers, public commentators and journalists to refrain from public discourse of the proceedings until the 2019 PEPT pronounced its judgment, His Lordship continued thus, as reported by TheCable:

“Any breach will not be condoned and we will not hesitate in taking necessary action against such offenders. We assure all stakeholders that each litigant will be given equal opportunity to present his case in a mature manner before us. We are witnesses to what has been happening in high-profile cases where such cases are being discussed and publicly decided prematurely in both the social and electronic media before the announcement of the verdict by the court. We pray that this time would be an exception for the benefit of the nation. We don’t expect counsel to any of the parties to hype the polity after any sitting by making a public analysis in the media as to what transpired in court …. These proceedings should be treated as would any other low-profile case, where proceedings in court are not discussed publicly until a decision is pronounced by the court… This admonition is also extended to the parties, their respective counsel and the members of the press. We, on our own part, will make relevant information available as and when due.”

Since this declaration by the 2019 PEPT, lawyers and non-lawyers alike have been preoccupied with discussions as to what extent (if at all) public analysis of pending court proceedings might constitute a contempt of court in Nigeria. On a lighter note, most respectfully, it appears the 2019 PEPT in its very first proceedings, has already thrown up the first issue for public discussion. I honestly hope the present discourse might not be viewed as an infraction of the admonition under consideration. Be that as it may, the mere fact that public comments erupted following the declaration of the 2019 PEPT is a clear indication of the seeming impracticability of vetoing or interdicting such open comments, more so in a constitutional democratic setting, such as ours.

Now, with the kind indulgence of the Hon Tribunal, the present paper is a humble assessment of the admonition of the 2019 PEPT in the light of extant law on trial publicity with a view to establishing whether, or to what extent, public analyses of court cases might reasonably constitute contempt of court in a constitutional democracy founded on rule of law. Assessments such as the present one, are needed, especially in view of eminent verdict of Nigeria’s Supreme Court in the case of MILITARY GOVERNOR OF LAGOS STATE v. ODUMEGWU-OJUKWU (2001) FWLR (Part 50) 1779 at 1802 & 1799: “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which profess loudly to follow the rule of law, there is no room for the rule of self-help by force to operate.” Besides, section 39 (1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended, bestows on every Nigerian an immutable right to “freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.” In summary, mine is a  humble discourse on what I see as an unnecessary attempt by the Court of Appeal, sitting as the 2019 Presidential Election Petition Tribunal, to interdict free speech and expand the Rule on Trial Publicity beyond its legitimate frontiers. Off I go!

Significance of Holding Judicial Proceedings in Public

Section 36 (1) of the Constitution of the Federal Republic of Nigeria (CFRN), as amended, provides that “in the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” Court proceedings relating to all matters mentioned in section 36 (1) CFRN must be held in public, and each litigant before the court or tribunal must be given a fair hearing in public (see section 36 (3) & (4), CFRN). One major reason for the mandatory constitutional requirement on public trial is to ensure that the general public is satisfied that trial is fair, that nothing is hidden and that justice has been done in each particular case in line with laid down rules. As stated by Lord Heward, C.J., in R. VS. SUSSEX JUSTICES, EX P. MCCARTHY (1924) 1 K.B. 256, 259 that “it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Another vital reason is to afford members of the public an opportunity of forming and offering (in public or in private, as they may desire) opinions about the manner court proceedings are being conducted. Perhaps, the most important reason for mandatory public access to trial proceedings is to constantly awaken the judges and the courts, involved in adjudication, to their paramount responsibility to act and talk fairly and impartially, bearing in mind that proceedings before them are being observed by members of the public. How fair and just is it, therefore, for a court or judge to expect that people who witness court proceedings should not freely analyze and comment?

The Scope the Rule on Trial Publicity in Legal Ethics

The Legal Professional Ethics prescribes minimum standards of proper conduct for lawyers, and imposes duties which are meant to uphold and safeguard the nobility of the legal profession and the integrity of law. The Nigerian Legal Ethics, known as the RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS (the RPC) are made by the General Council of the Bar in exercise of its powers under section 12 (4) of the LEGAL PRACTITIONERS ACT, Cap L11, Laws of the Federation of Nigeria, 2004, to regulate the conduct of legal practitioners in Nigeria and instill professional etiquette. The Legal Ethics is a code of honour and its breach attracts penalizations. Lord Denning, MR (in RONDEL V. WORSLEY) put it more succinctly: “a lawyer who flouts Legal Ethics is offending against the rules of the legal profession and is subject to its discipline.”  This is also captured in Rule 55 (1) of the RPC, 2007, which provides that “if a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the Rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act.”

The previous Legal Ethics in Nigeria (known as the Rules of Professional Conduct in the Legal Profession (made on 25 November 1967, and published in Official Gazette No. 107, in Volume 54 of December 14, 1967, but amended on 15 January 1979, as published in the FRN Official Gazette No. 5, in Volume 67 of 18 January 1980) dealt with Trial Publicity under the heading, “Newspaper Comment on Pending Litigation, Etc.” Rule 27 of the 1967 Rules (now repealed and replaced by the RPC 2007) provided thus:

“Newspaper comment by a lawyer on pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. It is to be avoided save in exceptional circumstances. A particular case may possibly justify a statement to the public, but it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court, and is better avoided entirely.”

If the threat to punish “lawyers, public commentators and journalists” who engage in public discourse of proceedings of the 2019 Presidential Election Petition Tribunal was made under the 1967 Rules as amended in 1979, such threat would not have generated so much rumpus, because the provisions of Rule 27 of the 1967 Rules (as reproduced above) was an out-and-out prohibition of lawyers’ involvement in public analysis of pending court proceedings.  But, even at that, one would still have interrogated the appropriateness and legitimacy for outspreading such a threat to journalists and other non-lawyer members of the public to whom Legal Ethics are not applicable, RPC being itself a bye-law applicable to only persons duly called to Bar in Nigeria?

Anyway, as I stated above, the provisions of Rule 27 of the 1967 Rules are no longer applicable, having been repealed and replaced with a brand-new Rules of Professional Conduct (RPC) for Legal Practitioners in Nigeria in 2007, which now is the applicable Ethical Code whose objective is to ensure that Nigerian lawyers observe minimum professional etiquette in their conduct and utterances. The relevant provision for our present discourse is Rule 33 of the RPC (2007) dealing with Trial Publicity. Rule 33 appears to have left no one in doubt that things have changed; the era of choking lawyers or unduly constraining lawyers’ freedom of speech and expression, is over. The Rule provides as follows:

“A lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter, or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any extra-judicial statement that is calculated to prejudice or interfere with, or is reasonably capable of prejudicing or interfering with, the fair trial of the matter or the judgment or sentence thereon.”

It is obvious from this provision that only lawyers and law firms who are involved in the prosecution or defense of a pending case are barred from engaging in extra-judicial comments (public analyses) on the proceedings. Even at that, it appears that there is no absolute bar, because such lawyers/law firms are still at liberty to make extra-judicial statements on such proceedings, in so far as such statement are not reasonably capable of prejudicing or interfering with the fair trial of the pending matter.

Further, from the clear wording and purport of Rule 33 of the RPC, 2007, it may not be out-of-place for one to conclude that lawyers, journalists, and other non-lawyer members of the public are completely excluded in the duties imposed by Rule 33, and are thus at liberty to freely offer their comments (privately or publicly, as they may wish) on pending proceedings, including even such comments as one might adjudge to be reasonably capable of prejudicially interfering with the fair trial of the matter. That is the position of the law in Nigeria, under the RPC, 2007.

Honestly, I am still unable to see how practicable it is for comments made outside the courtroom (by persons who have no connection with the case in court) could reasonably influence or interfere with the fair trial of the matter in court. For God’s sake, the court is strictly required to hear and determine the case before it on the basis, solely, of the evidence, law, and facts properly placed before it, and not based on public commentaries outside the courtroom. It is absurd, even illegitimate and intolerable for a court of law to pay heed to or to permit itself to be swayed by chinwags and annotations in the social, electronic or print media. The duty of court not to be influenced by (private or public) sentiments, assumptions, and extraneous considerations was emphasized by IBIYEYE, J.C.A, in ODOCK V STATE (2006) LPELR-9776 (CA) (at pp. 28-33, paras. F-A):

“I agree with the submission of the learned counsel for the appellants that this approach by the learned trial Judge in fishing for materials not placed before him and relying on such materials and facts to give his decision is, with due respect, an unusual procedure to be adopted in adjudication in our adversary system. It is trite that since the facts he relied on to form an opinion which he used to decide a matter were not before him, he has no responsibility to embark on an investigation to fish for them. …The Judge should not … fish out for facts not demonstrated before him …. It is trite to say that for a Judge to proceed on its own motion to take judicial notice of facts without a party laying the foundation and calling upon it appropriately to take such a judicial notice is a very dangerous thing to do in our adversary system of adjudication where the Judge is supposed to be an umpire and hold the balance. That will amount to the Court acting on instinct, sentiments and relying on speculations. The Court is not at liberty to act on any of those factors. In order words, instinct, assumptions and sentiments have no role to play in adjudications. See KATTO v. C.B.N. (1991) 9 NWLR (Part 214) 126 at 145. I agree with the learned counsel for the appellants that these philosophical postulations were not based on any materials before the trial Court. They are at best borne out of instinct, assumptions and sentiments which are not good premises for adjudication and the Court should not indulge in them. See STATE v. AIBANGBEE (1988) 3 NWLR (Part 84) 548 at 555; A.I.C. LTD. v. N.N.P.C. (2005) 11 NWLR (Part 937) 563 at 597; UBENE v. C.O.P. (2005) INCC 624 at 640. It is equally the law to state that no Court has a right apart from taking judicial notice of a notorious fact in a proper case to draw conclusions outside the available evidence…. I accordingly resolve the three issues in favour of the appellants.”

Besides, the Supreme Court of Nigeria has on several occasions warned that, in forming its opinions for purposes of determination of the case before it, a court of law is not entitled to have recourse to any evidence, facts, materials, issues other than what is placed before it by parties to the case. See the dictum of Oguntade, J.S.C in NDOMA-EGBA V. ACB PLC (2005) LPELR-1973 (SC) (at C (p. 27, paras. A-C). Moreover, in OKAFOR V. OKAFOR (2016) LPELR-40457 (CA), Agube, J.C.A (at pp. 106-107, para. E), while explaining the role of a judge in a trial, observed:

“A trial is not investigation, and investigation is not the function of a Court. A trial is the public demonstration and testing before the Court of the cases of the contending parties. The demonstration is by assertion and evidence and the testing is by cross-examination and argument. The function of a Court is to decide between the parties on the basis of what has been demonstrated and tested. What was demonstrated in Court failed to support the prosecution’s case and the Magistrate should have dismissed the case. It was not part of his duty to do cloistered justice by making an inquiry into the case outside the Court not even by the examination of documents which were in evidence, when the documents had not been examined in Court and the Magistrate’s examination disclosed things that had not been brought out and exposed to test in Court, or were not things that at least must have been noticed in Court.”

Why Public Comments on Trial Proceedings are Legitimate & Inescapable

Apart from the explanation above, on the duty of the courts to not be influenced by matters outside the courtroom, nothing is hidden about court trial proceedings, since trial is held publicly. Section 203 of the Criminal Procedure Law of most states in Nigeria makes it mandatory that “the room or place where any trial is to take place … shall be an open court to which the public generally may have access as far as it can conveniently contain them.” Also, Sowemimo, J.S.C in OVIASU V. OVIASU (1973) LPELR-2836 (SC), p. 12, paras. B-F, citing Halsbury’s Laws of England. reiterated this mandatory requirement:

“`Every Court of Justice is open to every subject of the King.’ To this rule, there are … certain strictly defined exceptions. Applications properly made in chambers, and infant cases, may be particularized. But publicity is the authentic hall-mark of judicial as distinct from administrative procedure.”

 In view of the above, one may ask this question: How reasonably practicable is it to allow public trial of cases in court, and at the same time try to bar members of the public from making comments on their perceptions about the proceedings? I personally do not see the workability! I think a better way to have avoided open discourses on court proceedings is to preclude the public from having access to pending proceedings. Therefore, one may suggest that where a court of law is not prepared to tolerate public comments on its proceedings, let such court conduct its trials secretly (trial in camera). Such trial in camera may find legal support in section 36 (4) (a) of CFRN 1999, as amended, section 203, Criminal Procedure Law (CPL), section 225 Criminal Procedure Code Law (CPC), and relevant provisions of the Administration of Criminal Justice Act, 2015. The proviso though is that the court in such circumstances must be prepared to show that such exclusion of the public from its proceedings is reasonably justifiable “in the interest of defense, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;” else, the court’s action would be adjudged unconstitutional, null and void, on grounds that publicity of trial is a fundamental aspect of fair trial. See section 36 (1), (3) & (4), CFRN, 1999. There is a problem with this alternative. Requirements of extant law on this subject appear to render it reasonably unworkable to completely remove proceedings of courts from public view and scrutiny because even when the court finds it legally justifiable to exclude the public from its proceedings, there are persons who are legally required to be present during such (secret) proceedings. These include parties to the case, their witnesses and legal practitioners, accredited journalists, and court officials who by the very nature of their work are required to be present in court sittings – orderlies, court clerks, etc. See section 36 (4) (a) CFRN and section 205 CPL.

Based on the aforesaid, there is no-gainsaying that, however hard the court tries to move its proceedings away from public view, in the end, the proceedings would still come to public knowledge and, of course, would naturally attract open comments. Legit no cogit ad impossibilia is apt here! Take for an instance, while I was writing the present paper in my hotel room, in Abuja, early in the morning of Monday, 13 May 2019, I watched a public discussion on national television, of another issue that arose directly from the May 08, 2019 inaugural proceedings of the 2019 Presidential Election Tribunal (2019 PEPT): “Should the current President of the Court of Appeal who is also the Chairman of the 2019 PEPT, recuse herself from further participation in the PEPT , based on the Nemo Judex rule, on account of the allegation that her husband is a Senator-elect from one of the disputing political parties in the election petition pending before the PEPT?” That issue is not in focus in the present paper, but I am compelled to point it out, to demonstrate the impracticability of barring open discussions about pending court proceedings, especially in respect of such a high-profile case as Atiku versus Buhari, touching directly on the Presidency of the Federal Republic of Nigeria. No wonder then, the framers of Rule 33 of the RPC 2007 were proactive in having wisely recognized and taken care of this unescapable reality when they drafted Rule 33 to allow some room for such obviously harmless open comments. The makers of the RPC 2007 were in conformity with William Blackstone’s observation that law is the embodiment of the moral sentiment of the people. No doubt, the people’s good is the highest law, as declared by Marcus Tullius Cicero, Roman statesman, orator, lawyer and philosopher (106 BC – December 07, 43 BC). What is more? A German jurist and historian who later became a leader of the sociologist school of jurisprudence, Friedrich Karl von Savigny (1779-1861), had adopted and advanced German cultural precepts that recognized the need for law to pay solidarity with the volksgeist (the unique spirit and character of a nations’ people), the reality on ground in a country, because, as he suggested, “law is made for man and not man for the law.” Lastly, on this point, the prolific English writer, William Godwin (1756 –1836) said, “Law is made for man and not man for the law. Wherever we can be sure that the most valuable interests of a nation require that we should decide one way, that way we ought to decide.”

Position of Case Law Regarding Extra-Judicial Statements on Court Proceedings: Extent of Citizens’ Rights

In the Court of Appeal case of DANIEL V. FEDERAL REPUBLIC OF NIGERIA (2013) LPELR-22148 (CA), his Lordship, Dongban-Mensem, J.C.A explained the limits of the rule relating to trial publicity and the principle of sub-judice (at pp. 46-50, para. C) as follows:

“I must say that in recent times, I wonder whether the legal principle of subject “sub-judice” has been abolished from our legal system. Usually, a matter which is “sub-judice” should be protected from the media, it is expected to be treated with some measure of restraint in reportage on the subject while proceedings are on-going. However, the rider/caveat which qualifies this expected restraint is that the publication is “calculated to impugn the fairness of the trial.” While some publications can be so obvious, the intention of some are not so easily discernible. The focal point then is not whether there is a publication on the subject matter but whether such publication is “calculated to impugn the fair trial” of the pending suit. The Courts which are not given to speculation will have to be swayed with legal evidence to procure a finding that a certain publication is calculated to impugn fair trial. The publication of the report of an inquiry on the subject matter of the trial of the Appellant could be intimidating. That is a subjective factor which would not impact legally on the subject of consideration. The case of Mohammed v. Kano Native Authority (1986) 1 ALL NLR 422 on fair hearing finds no application on the facts of this appeal strictu sensu. The reasonable man in Mohammed’s case “is that man who was inside the Court and who observed the conduct of the proceedings from the beginning to the end. Thus, when the proceedings are taken out of the domain of the Court of trial to the public domain, the test of fair hearing becomes unruly like the unbridled horse. It is not the public that does the evaluation and adduction of value to the adduce evidence; it is the Court and that is done only upon credible legal evidence. At the enquiry, all manner of extraneous matters could be considered. All such must be eliminated through the legal sift. … Further, the impression of the reasonable man referred to in adjudication is not deciphered from newspaper publications. It is the impression of that reasonable man who was in Court all through the proceedings keenly and dispassionately observing the trial. …. The test of fair hearing is not the effect of a publication on the average members of the public but the opinion of a reasonable man who watches the proceedings in Court. … Extensive media publication perse, does not therefore constitute an impediment to a fair-hearing. The Apex Court found no such disability in the case of FRN v. Nabara (2013) 5 NWLR (Pt.1347) p.332. In the case of R v. West (1996) 2 Cr App R 374 @ 306 Lord Taylor CJ explained the judicial attitude to adverse publication in these terms:- “…But however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view, it could. To hold otherwise would mean that if all allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in Court, there is no reason to suppose that they would do otherwise. In (R v. Kray (1969) 53 Cr. App R 412 at 414, 415), Lawton J said: “The drama….of a trial almost always has the effect of excluding from the recollection that which went before”. That was reiterated in (R v. Coughlan (1976) 63 Cr. App R. 33 @ 37. In (Exp Telegraph Plc. (1993) 2 All ER 971 at 978, (1993) 1 WRN 980 at 987, I said. A Court should credit the jury with the will and ability to abide by judge’s direction to decide the case only on the evidence before them. The Court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of trial is to focus jury’s minds on the evidence put before them rather than on matters outside the Court room.” (Emphasis mine)

On the other hand, in BELLO v. AG, LAGOS STATE (2006) LPELR-7585 (CA), the Court of Appeal explained the circumstances in which public commentaries or analyses on pending proceedings may amount to contempt of Court. His Lordship, Salami, J.C.A (pp. 41-46, paras. F-C) had this to say:

“It is crystal clear from the publication set out above that a suit was pending. It transpired from the publication that an application for interlocutory injunction was equally pending. The publication was made to coincide with the date the application for interlocutory injunction was fixed for hearing, 18th September, 2001. The last paragraph had the effrontery of anticipating the relief sought in the motion on notice. In other words, learned counsel for appellant arrogated or ascribed to himself the power to grant the interlocutory injunction, This, respectfully does not only constitute interference with the judicial proceedings, in suit ID/564M/2001 pending before Lagos Slate High Court but also amounts to usurpation of the proper function of the Court, a Court of record. It also has the effect of inciting people against the constituted authority; in addition to bringing the Court into contempt and ridicule. The crux of the matter is that the learned counsel for appellants and the purveyor of the publication respectfully seems to have prejudged the issues in both the suit and the pending application before the learned trial judge. The objectionable conduct of the counsel is intended to prejudge the issues in the action, which was pending. It therefore amounts to contempt, a criminal contempt for that matter. See paragraph 26 of the Halsbury’s Laws of England, Fourth Edition- “26. Prejudging Issues. Comments on pending legal proceedings which purports to prejudge the issues which are to be tried by the court is intrinsically objectionable as being usurpation of the proper function of the Court. This it seems may be punished or restrained as a contempt irrespective of the effect or likely effect on the particular proceedings in question.” (italics mine) See Re “Finance Unions”, Yorkshire Provident Assurance Co. VS. “Review” Publishers (1895) 11 TLR 167 at 168 per Wills J. Attorney-General vs. Times Newspapers Ltd. (1973) 3 All ER 54 at 65 (1973) 3 WLR 298, 65 where Lord Reid said- “I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable not only because of its possible effect on that particular case but also because of its side effects, which may be far reaching. Responsible ‘mass media’ will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for process of the law could follow and, if mass media are allowed to Judge, unpopular people and unpopular causes will fare very badly. Most cases of prejudging of issues fall within the existing authorities on contempt.” At page 68 of the same report Lord Morris of Borth- Y-Gest said- “Furthermore, not only is it from the public points of view unseemly that in respect of a cause awaiting the determination of a Court there should be public advocacy in favour of one particular side or some particular points of view but also the Courts, I think, we owe it to the parties to protect them either from the prejudices of prejudgment or from necessity of having themselves to participate in flurries of having pretrial publicity. In this connection, I agree with Lord Denning MR when he said (1973) 1 All ER at 821, 822 (1973) 2 WLR at 460 – ‘We must not allow “trial by newspapers” or “trial by television” or trial by any medium other than the Courts of law’. Many judicial expressions of opinion illustrate the viewpoint that I have set out. Lord Hardwicke, L.C. in the St. James’ Evening Post case (1742) 2 at K 469 said that “there was nothing of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the case is finally heard.” The newspaper article, which was under consideration in Re Crown bank, Re O’Malley (1890) 44 ChD 649 was published after the presentation of a petition to wind up a company.” The appellant’s comment went beyond fair and temperate criticism, which is legitimate. Its motive was to put pressure on the plaintiff and the Court, there was no other reason for the publication other than to influence the persons who might read it and persuade them to take side. The publication was consequently not impartial but a deliberate or calculated propagation of the views of one of the parties. Trial by newspapers, television and other medium other than Court is not only unacceptable but also objectionable. The Court will however only find contempt where the risk of prejudice is real, substantial or serious. The facts in this case shows that the appellant without ascertaining the facts of the case in the nature of the defendants’ response and in absence of submissions of counsel hijacked the functions of the Court and predetermined the issues or the relief sought in their application for interlocutory injunction. The only proceedings of Court in which there could be unrestrained criticism is where judgment had been delivered even if that judgment were on appeal. See AG. v. Times Newspapers Ltd. (supra) at 65 and 310 per Lord Reid. The appellants’ conduct, nay those of their counsel should not only be restrained, it should be punished. Their conducts including that of The Punch newspaper that aired the publication, to say the least, is reckless.”

Looking at Rule 33 of the RPC 2007, as well as the legislation and case law considered above, it would appears that two major inferences are thrown up:

• Any one (lawyer and non-lawyer alike) not involved in a pending case may make fair, temperate and non-prejudicial public analyses on the case.
• Lawyers and parties to pending proceedings are entitled to make public comments on the proceedings, provided that such comments are not reasonably calculated or likely to impugn the fair trial of the suit.

At this juncture, I consider it crucial to respectfully recall that the dictum of Hon Justice Salami in BELLO v. AG, LAGOS STATE (supra) appears to be directed only at the parties to the pending proceedings and their counsel, and thus excluded lawyers and persons not directly involved in the case. This notwithstanding, I am of the opinion that a proper, reasonable approach to a realistic resolution of these issues would be to hold that, whether or not the author, instigator or publisher of the affected public comments is a party or lawyer involved in the pending proceedings, publications which purport to prejudge the issues which are to be tried by the court or which constitute an undue interference with pending judicial proceedings or amount to usurpation of the proper function of the court are objectionable and therefore should be avoid by members of the public — lawyers, litigants, commentators and all. This is because such might be viewed as a sort of media trial of the pending case. It must conversely be emphasized that fair and temperate public comments, analyses, and even criticisms, of pending proceedings are appropriate, the same being unavoidable and legally permissible in any civilized society governed by law and common sense.

Conclusion

With the greatest respect to the 2019 PEPT, chaired by His Lordship, the Honourable President of the Court of Appeal (PCA), I most deferentially disagree with any suggestion that Nigerians are legitimately ineligible to make comments on the proceedings of the Honourable Tribunal. I strongly recommend that the best approach in the circumstances should be as unambiguously indicated in the case of DANIEL V. FRN (supra): “the focal point then is not whether there is a publication on the subject matter but whether such publication is calculated or is reasonably likely to prejudicially interfere with or impugn the fair trial of the pending suit.” As I have explained above, one major significance of throwing court proceedings freely accessible to all and sundry is for everyone to have the opportunity of beholding how the proceedings are conducted, which opportunity, I submit, extends to the observers’ right to (privately or publicly) discuss their thoughts on the proceedings as the trial progresses. These things are unpreventable.

I therefore suggest their Lordships, the Chairman and members of the 2019 PEPT should just focus squarely on the live cases before them and completely ignore what people (outside the courtroom) say or do not say about the proceedings, because such public talks are bound to happen; yet, they ought to not be their Lordships’ business and ought rightly to not concern nor affect them, nor interfere with the impartial and just determination of the cases before them. Speaking generally, we all need to be careful so as to not unnecessarily overstretch extant Rules, Case Law and Legislation with a view to wrongly importing issues and matters that are not originally there, nor meant to be there. In the instant case, such attempt or threats to interdict free public speech might be viewed as a breach of citizens’ rights under the constitution and a brazen rupturing of the hallowed legal maxim, legit non cogit ad impossibilia (the law does ought to not command the doing of what is practically impossible) with its attendant consequences for an organized, modern society, unless we are prepared to build more prisons, to accommodate Nigerians who, in exercise of their inalienable constitutional rights, would naturally engage in open discussions of ongoing proceedings of Nigeria’s 2019 Presidential Election Petition Tribunal. It was not, I humbly suggest, the intentions of the framers of the RPC 2007 to gag free speech, interdict public commentaries or choke public analysis of court proceeding by observers thereof.

In addition to my earlier suggestions on the realistic intentions of the RPC 2007, I think the makers of the RPC must have considered the famous declaration of George Orwell in favour of the universal respect for unassailability and immutability of free speech: “if a large number of people believe in freedom of speech, there would be freedom of speech, even if the law forbids it….” Put differently, if we desire respect for our laws, we must first make our laws law respectable (per Hon Justice Louis D. Bradeis of the United States’ Supreme Court). Rule 33 of RPC 2007 on trial publicity is a liberal and realistic rule, which wisely recognizes and respects citizens’ undeniable right to free public speech and expression. I implore us to consider that taking this natural right away from citizens, even for a moment, would negate the true intentions of the framers of the law. In a letter to Justice William Johnson of the United States, Sir Thomas Jefferson, a founding father and the 3rd President of the United States of America, had this to say:  “On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” 

Without prejudice, respectfully,

Sylvester C. Udemezue (udems),udemsyl@hotmail.com

(13 May 2019)