REPUBLIC vs. LIBERTY PRESS LTD. AND OTHERS [1968] GLR 123

CASES REFERRED TO

(1) In the Matter of an Application for Contempt of Court (1886) 2 T.L.R. 351.

(2) R. v. Colvin; R. v. Arthur (1957) 3 W.A.L.R. 89.

(3) R. v. Davies [1906] 1 K.B. 32; 75 L.K.B. 104; 54 W.R. 107; 50 S.J. 77; 93 L.T. 772; 22 T.L.R. 97. (4) R. v. Davies; Ex parte Delbert-Evans [1945] K.B. 435; 114 L.J.K.B. 417; sub nom. Delbert-Evans v. Davies and Watson [1945] 2 All E.R. 167; 173 L.T. 289; 61 T.L.R. 428; 89 S.J. 446. D.C. (5) Attorney-General’s Application, Re; Attorney-General v. Butterworth [1963] 1 Q.B. 696; [1962] 3 W.L.R. 819; [1962] 3 All E.R. 326; L.R. 3 R.P. 327; 106 S.J. 610, C.A.

NATURE OF PROCEEDINGS

APPLICATION for committal for contempt of the Court of Appeal. The facts are sufficiently set out in the judgment of Akufo-Addo C.J. sitting in the High Court.

COUNSEL

V. Owusu, Attorney-General (with him J. N. K. Taylor, D.P.P.) for the applicant.

J. Reindorf (with him Osei Bonsu for the first and N. Y. B. Adade and R. Bannerman for second to thirtieth respondents).

JUDGMENT OF AKUFO-ADDO C.J.

On 8 January this year the Attorney-General applied under Order 59 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A) by motion ex parte for leave to apply for writs for the attachment of the persons named in the application for contempt of court in printing and publishing an article entitled “Justice delayed is justice denied” in the journal Legon Observer of the issue of 8-21 December 1967. Leave was granted by me and the application was made on 22 January 1968, by motion on notice to the contemnors, that is, the Liberty Press Ltd., the printers of the journal aforesaid and 28 professors and lecturers of the University of Ghana, Legon, who operate under the unincorporated name of “Legon Society on National Affairs” the publishers and distributors of the said Legon Observer and the editor of the said journal.

The article complained of by the Attorney-General is in the following terms:

“WE HAVE had occasion once in the Legon Observer (Vol. II, No. 19) to draw attention to the number of cases still pending

[p.125] of [1968] GLR 123 in our courts of law. Some of these cases have been pending for so long that, quite understandably, most law officers have forgotten about the existence of such cases. The law officers at the Attorney-General’s Office seem to be so overworked that, with the best will in the world, they can hardly call all the cases for trial or review. It is to make the wheels of justice move faster that the recent increase in the salaries of the law officers in the Attorney-General’s Office has been welcomed. The hope is that the recent increase will attract a sufficiently large number of good lawyers to review all pending cases so that the guilty can be punished and the innocent set free.

One outstanding unfortunate case which has been pending for a long time is the one involving Messrs. H. K.

Djaba, F. Y. Asare and J. Quartey. These gentlemen were sentenced by Justice Akainyah to long terms of imprisonment on 10th May, 1965. By finding them guilty and sentencing them to various terms of imprisonment the trial Judge might have discharged his duty and allowed justice to take its course. But a cardinal Principle of justice is that not only must justice be done, but it must manifestly be seen to be done.

Could justice have been done at a time when Nkrumah was at the height of his power (he had by then dismissed the Chief Justice and two other judges in the Adamafio case), and in a case which was so inextricably interwoven with politics and private financial interests?

No definitive answer can instantly be given and the question does not admit of an easy answer if an attempt to answer it is not viewed against the background of the political treatment meted out to one of the accused, who happened to be the `star’ accused, and who was given great publicity at the time of the trial.

1. Mr. H K. Djaba was arrested on the 7th August 1964, and detained under the legislation empowering the Attorney-General to authorize the detention of any person suspected of committing an offence for 28 days. Mr. Djaba was detained, not at a police station, but at the Nsawam Solitary Confinement Cell. Shortly after, his counsel, Mr. P.A. Adjetey, raised legal objections to this treatment; he was threatened, though indirectly, in consequence of which he stayed away from the trial thereafter.

2. Before the accused returned voluntarily from the United Kingdom (he had been threatened with extradition by the old regime) his wives, some members of his family and a nine-year-old daughter who had nothing to do with the case had been detained for short periods. The daughter, Dorine Afi,

[p.126] of [1968] GLR 123

Korkor Djaba, who fell sick in prison, died a few months after she was released.

3. When the accused was waiting for trial he was transferred under a warrant from James Fort Prison to Ussher Fort Prison, the maximum Security Prison, on 4th November, 1964.

4. Anyone who read the papers at that time could not fail to see the press campaign conducted against the accused, thus prejudicing a fair trial of the case.

5. Procedural errors were detected by Defence Counsel, but these were brushed aside when Parliament passed legislation under a certificate of urgency, on Nkrumah’s instructions, so as to frustrate the anticipated success of the Defence Counsel on account of those procedural errors.

6. Some witnesses committed perjury and got away with it. In fact, perjury was committed in two respects. In one respect, it was calculated to help the case of the prosecution, and here the witness concerned got away with it. In the second respect, the perjury, according to the judge, was calculated to help the defence case, and here the witness concerned was sent to jail for about 6 months.

7. While the trial was pending the principal witness for the prosecution was negotiating with the deposed President to establish a factory in Ghana to produce agricultural machines which had formed the subject-matter of the prosecution; on one occasion while the witness was giving evidence, his evidence was interrupted to enable him to go to the Castle to see the ex-President. This can be found on record.

8. After the accused had been convicted and had appealed, and after about a year had elapsed, the appeal was argued before 3 judges of the Court of Appeal (previously the Supreme Court) for some 2 months and judgment was reserved. After some 5 months the three judges sat again ostensibly to give judgment but only to say that because of important points of law raised in the appeal the whole appeal would be re-argued before a full bench of 5 judges of the Court of Appeal. This raises an interesting point of law which cannot be fully analyzed since the case is still pending. However, it is clear that the accused have been put to extra expense in the re-hearing through no fault of their own. Suppose they can no longer afford to engage counsel, would justice not have been compromised?

9. Finally, the ex-Attorney-General took an interest in the case not warranted by his position as the principal law officer of

[p.127] of [1968] GLR 123 the Government. This case is of the gravest public importance and the principles involved go to the very roots of the administration of justice under the old regime. It, further, raises many issues:— First, it could be reasonably supposed that Mr. Djaba’s family received the official treatment given so as to put pressure on Mr. Djaba to return from the United Kingdom. The methods used were barbaric and unfair. Secondly, the veiled threats issued to the first Defence Counsel were such as to render it impossible for the accused to properly and in confidence give any instructions for their Defence. Finally, it is quite clear that all the accused have suffered immense mental and physical torture, in circumstances which will put a strain on any normal person’s nerves, reputation and dignity. Even if justice was done it is extremely difficult to say that it has manifestly been seen to have been done. Great care is needed in unravelling the inter-connections of private financial interests, political intrigues and justice.

Under the old regime one Mr. Lutz Harold, a German, was accused of an ordinary crime of smuggling money into Ghana to carry on pro-Busia activities and jailed for forty years. He appealed to the N.L.C. at the time of the coup and was released. A Frenchman, Mr. Jean Schnaps, was also sentenced to terms of imprisonment under the old regime by a properly constituted court. He also appealed to the N.L.C. and was set free. So also were Messrs. Tawiah Adamafio, Ako Adjei and Cofie Crabbe. The principle applied most probably was that the cases in which they were involved had such political overtones that with a change of regime there was no sense in keeping them in prison. The case under discussion clearly appears as political as the other cases; it would seem, therefore, that the same principle could be applied by the N.L.C.”

The contemnors filed two affidavits, one by the Liberty Press Ltd. by its Managing Director, Yiadom Kumi, and the other a composite one by the editor, Edward Yaw Twumasi, which expressed on its face to be sworn to on the authority of all the other contemnors, for himself and on behalf of the others.

The affidavit sworn to by Yiadom Kumi reads as follows:

“I, YIADOM KUMI, Managing Director of Liberty Group of Companies of Accra make oath and say as follows:

(1) That I am the deponent herein.

(2) That I am the managing director of Liberty Press Ltd. a printing firm incorporated in Ghana.

[p.128] of [1968] GLR 123

(3) That I have been served with copies of proceedings of the writ of attachment against the first defendant-Liberty Press Ltd. for an alleged commission of contempt of court for printing the Legon

Observer a fortnightly paper published by the Legon Society on National Affairs.

(4) That by an agreement dated 31 August 1966 entered into between the Legon Society on National Affairs and the Liberty Press Ltd. the latter undertook to print a fortnightly paper called, The Legon Observer for the Legon Society on National Affairs.

(5) That it was a condition in the said agreement that the Liberty Press Ltd. shall print the Legon Observer in strict accordance with the proof submitted to them by the editorial committee of the Legon Observer.

(6) That under the said agreement the Liberty Press Ltd. exercised no control whatsoever over the editorial committee of the Legon Observer, and could not interfere in any way with their editorials or any article or articles in the Legon Observer.

(7) That the said article complained of was received from the editorial committee of the Legon Observer, which is composed of men of very high learning whom the press sincerely believed were bent on healthily informing the public and would not publish articles which would lead the press into committing a contempt of the court.

(8) That owing to the multifarious business carried on by the press it was not aware that in printing the article and the remarks complained of that they were committing a contempt of this honourable court.

(9) That there is no collusion between the Legon Society on National Affairs and the Liberty Press Ltd. to print any contemptuous matter or any matter calculated to interfere with the course of justice.

(10) That the printing of the particular subject-matter of these contempt proceedings was done bona fide and not intended or calculated to prejudice the fair trial of the case before the court or to interfere with the cause of justice.

(11) That by printing the said subject-matter the Liberty Press Ltd. did not intend to bring the High Court or the Court of Appeal into contempt.

(12) That if this honourable court should be of the opinion that in printing the matter in question the press have

[p.129] of [1968] GLR 123 committed a contempt, I desire to express my profound regret for the same, and to offer to the court a most humble apology for the offence which the press have unwittingly committed.

Sworn at Accra this 19th day of January, 1968.

(Sgd.) Yiadom Kumi DEPONENT.

Before Me, (Sgd.) J. K. Amoako COMMISSIONER FOR OATHS.”

And that of Twumasi reads as follows:

“I, EDWARD YAW TWUMASI, lecturer of the University of Ghana, Legon, make oath and say as follows:

(1) That I am a lecturer in the Political Science Department of the University of Ghana, Legon, the editor of the Legon Observer, and a member of the Legon Society on National Affairs.

(2) That I am the third respondent herein and I have the authority of all the members of the said Legon Society on National Affairs, the second respondents herein, to swear to this affidavit on our joint behalf.

(3) That, I am not in a position to admit or deny paragraph (1) of the affidavit of Edmund Valentine Adjei Adjetey sworn to on behalf of the applicant herein, which said affidavit was served on me on 8 January 1968, but I admit paragraphs (2), (3), (4), (5), (6), (7), (8), (9) and (10) of the said affidavit.

(4) That I deny the allegation contained in paragraph (11) of the said affidavit; I am advised and verify believe that the statement as quoted in paragraph (10) of which the said paragraph (11) purports to be an interpretation is not contemptuous of this honourable court.

(5) That I admit paragraph (12) of the said affidavit, sworn to on behalf of the applicant.

(6) That I deny the allegations contained in paragraph (13) of the said affidavit which said paragraph purports to put such an interpretation on the statement quoted in paragraph (12) of the said affidavit as would render the said statement contemptuous of his honourable court.

(7) That I admit paragraph (14) of the affidavit sworn to on behalf of the applicant herein.

(8) That I deny the allegations contained in paragraphs (15), (16), (17) and (18) of the said affidavit and I am

[p.130] of [1968] GLR 123 advised and verily believe that the matters and statements complained of are not contemptuous of this honourable court.

(9) That the publication complained of was the result of the general public interest in certain aspects of the administration of justice under the Nkrumah Regime which have been the subject of comments in newspapers and by the public.

(10) That I thought these aspects of the administration of justice which occasioned the reorganization of the judiciary by the government were illustrated by the trial of Henry Kwadjo Djaba and others for several offences of the High Court in 1965.

(11) That on the strength of disclosures made in an article in the Ashanti Pioneer of 8 November 1967 I was of the opinion that the paper of which I am the editor should associate itself with the concern apparent in the said article in what seemed to me to be lapses in the administration of justice during the said trial.

(12) That the publication was made after legal opinion was given by a practising lawyer that the publication would not constitute a contempt of court.

(13) That as a result of the legal opinion so given and because of the unavailability of time I did not seek further opinion from those members of the Legon Society on National Affairs who are lawyers.

(14) That the publication complained of was made in good faith and without any intention to bring this honourable court into disrepute or to interfere with the administration of justice and that if this honourable court should think otherwise, I would crave leave of the court to render a full and unqualified apology.

(15) That at the hearing of the application herein, I will crave leave of this honourable court to raise certain matters of law and procedure through my counsel.

Sworn at Accra this 19th day of January, 1968.

(Sgd.) E. Y. Twumasi DEPONENT Before me, (Sgd.) J. K. Amoako COMMISSIONER FOR OATHS.”

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It will be seen that by neither of these affidavits did the contemnors admit that the publication in question was in contempt of court, although the Liberty Press Ltd. by what was the less offensive of the two affidavits would appear to plead innocence in that it did not know, and had no means of knowing, that the material tendered to it for printing contained matters that would amount to contempt of court, and that in printing this article it had no intention of printing any contemptuous matter. The other affidavit, however, was an aggressive justification of the entire article on the comprehensive ground that what was said therein related to a matter of public importance as affecting “lapses in the administration of justice.”

After the Attorney-General had completed his submissions of the application for attachment, Mr. Reindorf, learned counsel who led for the contemnors, raised a point in objection to the jurisdiction of the court to hear the application. Counsel’s objection to the jurisdiction of this court was founded on two grounds, namely:

(a) That if there was any contempt, it could only be contempt of the Court of Appeal before which court the proceedings in question were pending, and not of this court. This court, he argued, was a different court from the one that originally tried the case and that that court had ceased to exist by virtue of the Courts Decree, 1966 (N.L.C.D. 84).

(b) That the procedure for bringing this matter before the court should have been by indictment and not by summary proceedings. (I was not at all sure if counsel carried his argument to its logical end by implying that if the matter was brought up on indictment the indictment should be laid before the Court of Appeal which, according to counsel, was the only court with jurisdiction to hear this matter).

Counsel submitted that Order 59, r. 21 of L.N. 140A under which this application was brought should be read in conjunction with sections 8 and 10 of the Criminal Code, 1960 (Act 29), and section 1 of the Criminal Procedure Code, 1960 (Act 30), and when so read it would appear, in the words of counsel, “that the common law powers to punish for contempt have been saved, but only as to punishment. It is not a saving as to procedure.” Since, counsel submitted, these proceedings are proceedings in criminal contempt and not in contempt arising out of civil proceedings, the proper procedure would be by indictment.

Section 8 of Act 29 says: “No person shall be liable to punishment by the common law for any act,”and section 10 of Act 29 says: “Nothing in this Code shall affect the power of a Court to punish a person for contempt of Court.” Section 1 of Act 30 reads: “All

[p.132] of [1968] GLR 123 offences under the Criminal Code and, subject to the provisions of any enactment, all other offences shall be enquired into, tried and otherwise dealt with according to this Code.”

I must confess that I have found it extremely difficult to appreciate the interpretation which counsel sought to place on sections 8 and 10 of Act 29, namely, a saving in the common law power to punish for contempt and not a saving in procedure, and particularly as this interpretation was called in aid of an objection to the jurisdiction of this court. The contention implicit in this interpretation would appear to be that the procedure in dealing with cases of contempt determines jurisdiction. This is untenable, and its untenability becomes more than apparent when one considers counsel’s further submission that by virtue of section 1 of Act 30 the procedure should be by indictment that only the Court of Appeal had jurisdiction, when it should be quite clear that no indictment can be filed in the Court of Appeal. Apart from a few statutory exceptions (and I don’t suppose counsel would want to rely on these exceptions) I fail to see how a court can have the power to punish for an offence without the related power to investigate whether punishment is merited.

The common law position has always been that the procedure by summary trial and by indictment are alternative procedures depending on the character of the contempt. Where the contempt is clear and unambiguous the procedure for trial has always been by summary trial, whereas in a case where the contempt is not all that clear and certain indictment has been the appropriate procedure, and I know of no principle of law or procedure which requires that the forum for the trial of contempt is determinable by the choice of procedure. If counsel’s submission in this respect is right, namely, that only the Court of Appeal has jurisdiction and that the appropriate procedure is by indictment, then it means that the indictment will have to be laid in the Court of Appeal, which is absurd because the only original jurisdiction which the Court of Appeal has is limited to “matters where a question arises whether an enactment was made in excess of the powers conferred an the authorities responsible for making such enactment;… See (N.L.C.D. 84), para. 2 (2). If however, the argument is that an indictment must be laid in this court then the objection to jurisdiction defeats itself, for there is no reason why if this court can proceed on an indictment it cannot do so on the alternative procedure by summary trial.

It may however be argued that the Court of Appeal being a superior court of record has the common law jurisdiction to entertain an original application for attachment in a case of contempt of that court, and that jurisdiction is inherent and not conferred by

[p.133] of [1968] GLR 123 statute. This I believe is what counsel meant when he submitted that “there is no statutory provision anywhere in our laws which confers on any court the power to punish for contempt and therefore the common law must be resorted to, and it is that all superior courts of record possess the powers.” The force of this argument depends on two considerations, namely:

(a) Whether the principle enunciated in The Matter of an Application for Attachment for Contempt (1886) 2 T.L.R. 351 is applicable, and

(b) Whether our Court of Appeal is a different court from the High Court.

The principle in The Matter of an Application for Attachment was that one court could not punish for contempt of another court, and counsel relied on the case of R. v. Colvin (1957) 3 W.A.L.R. 89, which proceeded on the authority of The Matter Of an Application for Attachment. In that case the contemnor was charged in the Divisional Court, Accra, with contempt in proceedings then pending before the Divisional Court, Kumasi, and the Divisional Court,Accra, relying on the authority of The Matter of an Application for Attachment, declined to exercise jurisdiction.

In the first place if the case of R. v Colvin was rightly decided, I am not bound by it. In the second place the decision in that case is not applicable to the instant case for the following reasons:

(1) The basis of that decision was the existence then of divisional courts in the country; there are no more judicial divisions.

(2) There is now one Supreme Court of Judicature which consists of the High Court and the Court of Appeal (see N.L.C.D. 84) and contempt in the circumstances of this case is contempt of the Supreme Court of Judicature.

The Attorney-General in dealing with the case of R. v. Colvin submitted that the decision therein was given per incuriam in that the authority relied upon, i.e. In the Matter of an Application for Contempt has been disapproved of in the case of R. v. Davies [1906] 1 K.B. 32 at p. 46, and this state of the law was not brought to the notice of the court. R. v. Davies was essentially concerned with the jurisdiction of the King’s Bench Division of the Supreme Court of Judicature in England to entertain proceedings for contempt of an inferior court, and although there are dicta here and there in the judgment of that case which would seem to suggest that the decision covered more matters than appertained directly to the jurisdiction of the King’s Bench in respect of contempt of an inferior court, I am unable to say of a certainty that that case, in any express terms, disapproved of the decision in The Matter of an Application for Contempt.

I prefer to rely on the reasons which I have assigned above for not accepting the decision in R. v. Colvin as applicable, and on the further reason that since it is possible that the Court of Appeal in the appeal now before it may exercise its powers to order a re-trial, and that in that event the re-trial will take place in this court, anything said or done that will have the tendency to interfere with such a re-trial can be contempt of this court: see the case of R. v. Davies, Ex parte Delbert-Evans [1945] K.B. 435. This was a case in which contempt proceedings were brought in the King’s Bench Division in respect of an appeal then pending in the Court of Criminal Appeal. There was no question that the King’s Bench had jurisdiction although the appeal was pending in the Court of Criminal Appeal. The dicta of Humphreys J., from which I have derived some inspiration for the views I have expressed, leave me in no doubt that this court has jurisdiction in the matter.

Counsel cited the case of Attorney-General v. Butterworth [1963] 1 Q.B. 696, C.A. in support of his submission. This was a case of contempt of the Restrictive Practices Court in England. As the Attorney-General pointed out in his submissions this court was of a recent statutory creation and the power to deal with contempt of it was specifically conferred on it by the statute of its creation. The judgment of Pearson L.J.(as he then was) suggests that in spite of the statutory power conferred on that court there could be the alternative common law procedure by indictment, and if such a procedure was resorted to, it certainly could not be argued that the indictment must be filed in the Restrictive Practices Court. The obvious forum in which to file such an indictment will, of course, be the King’s Bench Division.

The suggestion that this matter could be dealt with under the provisions of rules 27 and 28 of the Supreme Court [Court of Appeal] Rules, 1962 (L.I. 218), does not seem to merit any consideration. This application cannot by any stretch of the imagination be described as an interlocutory matter in a pending appeal, which is the only matter that can be dealt with under those rules.

I have already said that the Court of Appeal is not a different court from the High Court in the sense in which the three old common law courts of England, namely, the Common Pleas Exchequer and King’s Bench division were from each other. And since the contempt complained of is of the Supreme Court of Judicature, it does seem to me to be common sense that that part of the Supreme Court of Judicature that has original jurisdiction in all matters must be the court with jurisdiction to deal with it, and that court is this one. It was for these reasons that I ruled against Mr. Reindorf’s objection.

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In so far as my decision embodies any general conclusions affecting the jurisdiction of the courts in contempt matters, it is referable only to contempt ex facie curiae (out of court) as distinct from contempt in facie curiae which is always dealt with “on the spot,” so to speak, without any intervention by the Attorney-General applying for writs of attachment.

On the question of the substance of the contempt my task, and I expect that of the contemnors as well, has been made immeasurably easier by the fact that the contemnors later in the proceedings pleaded guilty, and I take it that they did so in full appreciation of what the law is on the subject. I will therefore confine myself to making a few brief observations that may be of some use to the press generally and to the contemnors particularly.

I need hardly say that the judiciary has never claimed to be above criticism. Indeed I have on more than one occasion stated in public that the judiciary, like any other democratic institution, must justify its continued existence. This implies that its actions and conduct must be subject to the same measure of public scrutiny as any other governmental institution. Justice, it has been said, is not cloistered virtue, and those who have the responsibility to dispense justice will certainly not want to live in cloisters. But the important position of the judiciary in any democratic set-up must be fully appreciated. Performing, as they are called upon to do, the sacred duty of holding the scales between the executive power of the state and the subject and protecting the fundamental liberties of the individual, the courts must not only enjoy the respect and confidence of the people among whom they operate, but also must have the means to protect that respect and confidence in order to maintain their authority. For this reason any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere in any way with the course of justice becomes an offence not only against the courts but against the entire community which the courts serve. Such conduct constitutes the offence of contempt of court, and the courts are vested with the power of dealing with it in a manner that is almost arbitrary. For this reason the power is rarely invoked and only when the dignity, respect and authority of the courts are seriously threatened. It has been said that these powers are given to the courts (and the judges) to keep the course of justice free; power of great importance to society, for by the exercise of them law and order prevail; those who are interested in wrong are shown that the law is irresistible.

It is contempt of court by deed or word to scandalise the courts. It is contempt of court to make statements amounting to abuse of the courts. It is contempt of court to make statements which tend to

[p.136] of [1968] GLR 123 expose the courts or parties who resort thereto to the prejudice or hatred or ridicule of mankind.

Within these limits and within the further limits set by the legitimate exercise of the freedom of thought and expression criticism of judicial acts is free. The press both high and low must fully realise and appreciate that there is no such species of the freedom of thought and expression as press freedom. The freedom which the press enjoys is no less and no more than the freedom of thought and expression which the humblest illiterate citizen of Ghana enjoys.

Applying the brief definition of contempt of court which I have stated above, it is difficult to imagine a more blatant form of contempt than that which is embodied in the article under consideration, and, as the Attorney-General put it, “that article contains all the types of contempt known to the law.”

Having regard to the subsequent course which these proceedings have taken by the filing of affidavits of apology by the contemnors later in the proceedings and to the facts disclosed in these affidavits one is left in genuine bewilderment at the contumacious attitude of the contemnors as exhibited in their original affidavit. Freedom fighting can have its romantic attraction, and I cannot help thinking that that attraction proved a little too much for the learned gentlemen to resist. It is only by regarding the whole matter in this light that I am able to impose some restraint on my consideration of the legal consequences that flow naturally from the wrongful acts committed.

I have said that it is essential for the execution of the duty entrusted to the courts that they should deserve the respect and confidence of the masses of the people in this country, and to this end the courts need the full co-operation of the people. The people of this country have every right in this endeavour to expect a purposeful and enlightened leadership from those who occupy the seat of our highest place of learning, those, that is, in whose hands are committed the noble and heavy responsibility for the moulding of the minds and thoughts of those of the future generation on whom the entire future of this country depends. These learned gentlemen do not execute that leadership by, among other things, allowing themselves to draw inspiration from a newspaper like the Pioneer which, useful as it is in its own way, ought to draw its inspiration from the Legon Observer. They do not execute that leadership by a show of brinkmanship or by a reckless disregard of ordinary prudence to which they themselves have confessed. That they should not have appreciated the very elementary difference between the cases of Lutz Harold, Jean Schnaps and Adamafio and others on the one hand and the case of Djaba and others on the other in respect of the

[p.137] of [1968] GLR 123 action taken by the National Liberation Council in releasing the former persons from prison is a matter for the deepest regret and disappointment. The very simple and elementary difference between these cases is that in the case of the former no proceedings were pending in court and the National Liberation Council in releasing those men was exercising the prerogative of mercy inherent in the Head of State in remitting sentences. In the latter case, proceedings were actually pending in court and to seek to bring pressure to bear on the state to discontinue the proceedings properly before the court is a clear case of contempt of the worst type. These are just a few examples of the recklessness to which I have referred, not to mention the reckless abandon with which the editor acted on the views of a professional man whose interest in the case needed no argument for its appreciation.

It must be appreciated by the press and all other freedom-lovers that without a judiciary strong, courageous and respected that can effectively protect the freedom which we all love so much, all talk about freedom, whether it be in the lecture room or at Bukom Square, remains no more than a mere metaphysical speculation, and the courts are entitled to look upon men such as are before me today to help them in the acquisition of the requisite strength, courage and respect. One of the surest ways of doing so is to refrain from commenting on proceedings which are pending in the courts. For these constitute some of the most fruitful fields of contempt. There is however no law which prohibits absolutely any such comments, but there is law which punishes if the limits set by law are transgressed, as indeed they have been transgressed in this case.

I have stated that the courts are not above criticism but the courts will not allow themselves to be subjected to pressures emanating from irresponsible and romantic criticisms.

It has not been an easy matter for me in my consideration of the appropriate sentence to impose. If the original attitude manifested in the earlier affidavit had been as courageously persisted in as it apparently was initiated it would have been my duty, albeit my very painful duty, to impose not inconsiderable terms of imprisonment or fines or both. I have, however, allowed myself to be greatly influenced not so much by the apology tendered as by the timeliness of the tender; and I have decided as far as the contemnors, other than the editor, are concerned not to impose either terms of imprisonment or fines, but to order them to pay costs which I shall specify presently.

I cannot, however, treat the editor with the same measure of consideration. He has acted most irresponsibly by not taking the necessary precaution to ensure that what he published would not be offensive. He allowed himself to be influenced by a legal practitioner

[p.138] of [1968] GLR 123 who had an obvious interest in the case. He will pay a fine of N¢100.00. All the contemnors except the Liberty Press Ltd. will pay costs of N¢100.00 to the Attorney-General.

The apology filed pursuant to my order of 31 January 1968, shall be duly published according to the tenor of the said order. The apology shall however be signed by all the contemnors numbered 2-30.

I have not made the Liberty Press Ltd. liable to the payment of costs not because its guilt is any less than that of the others, but I have taken into consideration all the matters that it has urged in extenuation. This decision should not be interpreted to mean that a plea of good faith, or the absence of intention or innocent dissemination provides any defence to an action for contempt. It does not, and whether or not such a plea can be taken into consideration in awarding punishment depends on the merits of each individual case.

The contemnors are warned that if they or any of them are brought before the courts again on a similar charge and are found liable they must not expect to be treated with the same merciful consideration.

DECISION

Respondents committed for contempt of court

S. K. T.