Introduction:
The word ‘sub judice’ is a Latin word meaning ”under judgment”
or in literal term means ”under judicial consideration”. The sub
judice rule is a principle under the law of contempt of court. The
sub judice rule is to the effect that it is the exclusive duty and
function of the court to deal with legal issues before it.
The basis for this received English law principle is to protect
the authority, independence, image and integrity of the courts.
Therefore, when a matter is in court or expected to be brought to
court, no media trial or public statement that impugn on the
authority of the court should be made by journalists, lawyers,
executive, politicians or any other person. The key word here is
‘impugn’. In other words, statements are allowed to be made on
matters before the court except those statements that impugn on the
authority and integrity of the courts.
It is also germane to note that section 39(1) of the 1999
Constitution (as amended) provides for freedom of expression. The
section reads: “Every person shall be entitled to freedom of
expression including freedom to hold opinions and to receive and
impart ideas, and information without interference.”
The above constitutional provision guarantees the rights of the
citizens to freely air or express their opinions without hindrance
of any sort. But there is a limitation to this seemingly limitless
freedom of expression. Section 39 (3) created an exception to this
freedom by providing that nothing in this section shall invalidate
any law that is reasonably justifiable in a democratic society (a)
For the purpose of maintaining the authority and independence of
courts. By implication, the above constitutional provision
validates the sub judice rule that seeks to maintain the authority
and independence of the judiciary.
Opinion:
Corruption has become a debilitating factor setting the country
backward. The current government led by President Muhammed Buhari
has been waging war against the cankerworm of corruption. The
government through its Minister of Information Lai Muhammed
released a list containing names of persons that looted Nigerian
treasury. According to the Minister, those named in the list
(otherwise known as Looters’ List) looted the national treasury
empty. He asked them to return back the money they looted.
The proponents of the released looters’ list have hailed the
action of the government and described it as a good step in
stemming the tide of corruption in the country. To them, the
nicesities of law should not obstruct the naming and shaming of
corrupt persons in whatever means possible. On the part of the
antagonists, such a list prejudices and impugns on the integrity of
the courts when some of the alleged looters are already facing
criminal trial. To them, the government should have, in accordance
with the sub judice rule, not prejudged matters that are already
before the courts. The antagonists also hold the view that the list
amounts to defamation of characters of the alleged looters that are
yet to be charged to courts.
Ours is a democracy that is anchored on rule of law, separation
of powers and checks and balances. The three arms of government vis
a vis the legislature, the executive and the judiciary have their
cut out functions and act as checks and balances on one another.
While the legislature makes laws, the executive implements the laws
and the judiciary interprets and punishes offenders of the laws.
These functions are elaborated in sections 4, 5 and 6 of the 1999
Constitution (as amended)(hereby refers to as ‘the Constitution’).
By virtue of Section 6(6)(a) of the Constitution, the
jurisdictional power to determine the guilt or innocence of any
legal personality charged with a crime is solely vested on the
judicial courts and not on the executive or any other person. Even
when a person is charged to court, section 36 of the Constitution
protects his right to fair hearing and fair trial.
Furthermore, no matter how grave or distasteful an offence is,
an accused is still presumed innocent by the authority of section
36(5) of the Constitution. The Section (36(5)) provides that:
”every person charged with a criminal offence shall be presumed to
be innocent until he is proved guilty.”
What can be deduced from the above constitutional provisions is
that a person charged with a criminal offence is presumed innocent
until he is declared guilty by only the court. Therefore, the duty
of the executive is to diligently investigate and prosecute accused
persons in accordance with the law and not to declare to
unilaterally declare them as corrupt. To do otherwise will not only
amount to prejudicing and impugning the authority of the judiciall
courts but also a criminal act under our law.
This position is supported by section 133(1&9) of the
Criminal Code Act, Cap C38 of the Laws of the Federation of Nigeria
that provides thus: “any person, who while a judicial proceeding is
pending, makes use of any speech or writing, misrepresenting such
proceeding, or capable of prejudicing any person in favour of or
against any party to such proceeding, or calculated to lower the
authority of any person before whom such proceeding is being heard
or taken; or commits any other act of intentional disrespect to any
judicial proceeding or to any person before whom such proceeding is
being heard or taken, is guilty of a simple offence and liable to
imprisonment for three months”.
The English court also shares the same view by holding in A.G. v
TIMES NEWSPAPERS LTD (1972) 3 ALL ELR p.1136 at p.1144 where Lord
Reid opined thus:
“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.”
Our judicially has also cautioned against making statements that
pre judice the authority of the courts on matters that are sub
judice. On the 21st of March 2017, Justice Gabriel Kolawoleh of the
Federal High Court suspended the corruption trial of Military
Assistant to former National Security Adviser, Colonel Sambo Dasuki
(rtd), Colonel Nicholas Ashinze by the Economic and Financial
Crimes Commission (EFCC) over an alleged falsehood and media trial
engaged by the anti-graft agency against the military officer.
Justice Kolawole in a short ruling held:
“It is unfair for EFCC as a complainant in this trial to resort
to self-help by engaging the defendant in the media trial at the
same time in the court trial.
“If you want to try the defendant in the media, you have to
limit yourself to the media. You have to stop misleading the public
in the fact of this trial.
“Let me say it for the sake of emphasis that EFCC must stop the
use of journalists to distort proceedings in my court. You cannot
be engaging in two trials: one in the court and one in the media at
the same time…”
As if the judiciary had a premonition of the current sad events,
the Hon, Chief Justice of Nigeria on 10th of January 2018,
admonished and cautioned the public against making prejudicial
statements on matters before the court. The Hon. CJN in directing
judges to exercise their contempt power on unguarded statements
that impugn on Courts’ integrity stated thus:
“Attention of the Honourable, the Chief Justice of Nigeria
(CJN), His Lordship Hon. Mr. Justice Walter Samuel Nkanu Onnoghen,
has been drawn to the emerging and continued practice of
discussions of matters that are sub judice in the print and
electronic media, such as the issues concerning the Anambra State
Central Senatorial District dispute. The CJN wishes to remind the
general public that it is Contempt of Court for anyone to discuss
any matter pending in any Court of Law in the country. The
punishment for Contempt may include a term of imprisonment.”
It is submitted that by the publication of the looters’ list,
the integrity of the judiciary has not only been impugned but
questioned by the action of the Minister who had asserted the guilt
and culpability of persons still presumed innocent by the
constitution. This is tantamount to self help by the executive, it
is a pure case of taking the laws into its hands. The executive has
constituted itself to an accuser, a prosecutor and the court. What
then happens if at the end of trial of the ‘looters’, the judicial
courts find them not guilty? How would the ‘not guilty verdicts’ be
viewed, accepted or respected by some members of the public who
have been made to believe the ‘looters’ are guilty? That is the
inherent danger!
Conclusion:
The executive should heed the cautionary advise of the CJN and
concentrate on ways to step up investigation and prosecution of
corrupt offenders so as to eradicate the menace of corruption.
Anything apart from this will amount to fighting corruption in ways
that offend the extant laws of the land. Such does not yield any
positive result.
Obioma Ezenwobodo
Abuja based Legal Practitioner
08064999866
obiomadan@gmail.com
obiomaezenwobodo@yahoo
Introduction:
The word ‘sub judice’ is a Latin word meaning ”under judgment”
or in literal term means ”under judicial consideration”. The sub
judice rule is a principle under the law of contempt of court. The
sub judice rule is to the effect that it is the exclusive duty and
function of the court to deal with legal issues before it.
The basis for this received English law principle is to protect
the authority, independence, image and integrity of the courts.
Therefore, when a matter is in court or expected to be brought to
court, no media trial or public statement that impugn on the
authority of the court should be made by journalists, lawyers,
executive, politicians or any other person. The key word here is
‘impugn’. In other words, statements are allowed to be made on
matters before the court except those statements that impugn on the
authority and integrity of the courts.
It is also germane to note that section 39(1) of the 1999
Constitution (as amended) provides for freedom of expression. The
section reads: “Every person shall be entitled to freedom of
expression including freedom to hold opinions and to receive and
impart ideas, and information without interference.”
The above constitutional provision guarantees the rights of the
citizens to freely air or express their opinions without hindrance
of any sort. But there is a limitation to this seemingly limitless
freedom of expression. Section 39 (3) created an exception to this
freedom by providing that nothing in this section shall invalidate
any law that is reasonably justifiable in a democratic society (a)
For the purpose of maintaining the authority and independence of
courts. By implication, the above constitutional provision
validates the sub judice rule that seeks to maintain the authority
and independence of the judiciary.
Opinion:
Corruption has become a debilitating factor setting the country
backward. The current government led by President Muhammed Buhari
has been waging war against the cankerworm of corruption. The
government through its Minister of Information Lai Muhammed
released a list containing names of persons that looted Nigerian
treasury. According to the Minister, those named in the list
(otherwise known as Looters’ List) looted the national treasury
empty. He asked them to return back the money they looted.
The proponents of the released looters’ list have hailed the
action of the government and described it as a good step in
stemming the tide of corruption in the country. To them, the
nicesities of law should not obstruct the naming and shaming of
corrupt persons in whatever means possible. On the part of the
antagonists, such a list prejudices and impugns on the integrity of
the courts when some of the alleged looters are already facing
criminal trial. To them, the government should have, in accordance
with the sub judice rule, not prejudged matters that are already
before the courts. The antagonists also hold the view that the list
amounts to defamation of characters of the alleged looters that are
yet to be charged to courts.
Ours is a democracy that is anchored on rule of law, separation
of powers and checks and balances. The three arms of government vis
a vis the legislature, the executive and the judiciary have their
cut out functions and act as checks and balances on one another.
While the legislature makes laws, the executive implements the laws
and the judiciary interprets and punishes offenders of the laws.
These functions are elaborated in sections 4, 5 and 6 of the 1999
Constitution (as amended)(hereby refers to as ‘the Constitution’).
By virtue of Section 6(6)(a) of the Constitution, the
jurisdictional power to determine the guilt or innocence of any
legal personality charged with a crime is solely vested on the
judicial courts and not on the executive or any other person. Even
when a person is charged to court, section 36 of the Constitution
protects his right to fair hearing and fair trial.
Furthermore, no matter how grave or distasteful an offence is,
an accused is still presumed innocent by the authority of section
36(5) of the Constitution. The Section (36(5)) provides that:
”every person charged with a criminal offence shall be presumed to
be innocent until he is proved guilty.”
What can be deduced from the above constitutional provisions is
that a person charged with a criminal offence is presumed innocent
until he is declared guilty by only the court. Therefore, the duty
of the executive is to diligently investigate and prosecute accused
persons in accordance with the law and not to declare to
unilaterally declare them as corrupt. To do otherwise will not only
amount to prejudicing and impugning the authority of the judiciall
courts but also a criminal act under our law.
This position is supported by section 133(1&9) of the
Criminal Code Act, Cap C38 of the Laws of the Federation of Nigeria
that provides thus: “any person, who while a judicial proceeding is
pending, makes use of any speech or writing, misrepresenting such
proceeding, or capable of prejudicing any person in favour of or
against any party to such proceeding, or calculated to lower the
authority of any person before whom such proceeding is being heard
or taken; or commits any other act of intentional disrespect to any
judicial proceeding or to any person before whom such proceeding is
being heard or taken, is guilty of a simple offence and liable to
imprisonment for three months”.
The English court also shares the same view by holding in A.G. v
TIMES NEWSPAPERS LTD (1972) 3 ALL ELR p.1136 at p.1144 where Lord
Reid opined thus:
“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.”
Our judicially has also cautioned against making statements that
pre judice the authority of the courts on matters that are sub
judice. On the 21st of March 2017, Justice Gabriel Kolawoleh of the
Federal High Court suspended the corruption trial of Military
Assistant to former National Security Adviser, Colonel Sambo Dasuki
(rtd), Colonel Nicholas Ashinze by the Economic and Financial
Crimes Commission (EFCC) over an alleged falsehood and media trial
engaged by the anti-graft agency against the military officer.
Justice Kolawole in a short ruling held:
“It is unfair for EFCC as a complainant in this trial to resort
to self-help by engaging the defendant in the media trial at the
same time in the court trial.
“If you want to try the defendant in the media, you have to
limit yourself to the media. You have to stop misleading the public
in the fact of this trial.
“Let me say it for the sake of emphasis that EFCC must stop the
use of journalists to distort proceedings in my court. You cannot
be engaging in two trials: one in the court and one in the media at
the same time…”
As if the judiciary had a premonition of the current sad events,
the Hon, Chief Justice of Nigeria on 10th of January 2018,
admonished and cautioned the public against making prejudicial
statements on matters before the court. The Hon. CJN in directing
judges to exercise their contempt power on unguarded statements
that impugn on Courts’ integrity stated thus:
“Attention of the Honourable, the Chief Justice of Nigeria
(CJN), His Lordship Hon. Mr. Justice Walter Samuel Nkanu Onnoghen,
has been drawn to the emerging and continued practice of
discussions of matters that are sub judice in the print and
electronic media, such as the issues concerning the Anambra State
Central Senatorial District dispute. The CJN wishes to remind the
general public that it is Contempt of Court for anyone to discuss
any matter pending in any Court of Law in the country. The
punishment for Contempt may include a term of imprisonment.”
It is submitted that by the publication of the looters’ list,
the integrity of the judiciary has not only been impugned but
questioned by the action of the Minister who had asserted the guilt
and culpability of persons still presumed innocent by the
constitution. This is tantamount to self help by the executive, it
is a pure case of taking the laws into its hands. The executive has
constituted itself to an accuser, a prosecutor and the court. What
then happens if at the end of trial of the ‘looters’, the judicial
courts find them not guilty? How would the ‘not guilty verdicts’ be
viewed, accepted or respected by some members of the public who
have been made to believe the ‘looters’ are guilty? That is the
inherent danger!
Conclusion:
The executive should heed the cautionary advise of the CJN and
concentrate on ways to step up investigation and prosecution of
corrupt offenders so as to eradicate the menace of corruption.
Anything apart from this will amount to fighting corruption in ways
that offend the extant laws of the land. Such does not yield any
positive result.
Obioma Ezenwobodo
Abuja based Legal Practitioner
08064999866
obiomadan@gmail.com
obiomaezenwobodo@yahoo
Read more https://nairalaw.com/looters-list-incompatible-with-the-sub-judice-rule-by-obioma-ezenwobodo/