Conviction for contempt of
Court for lying and
prevaricating contra. section
41 ( 1) (b) of Criminal
Procedure Ordinance
~Provision.( of section 42
of that Ordinance not
0bserved~Accused not given
opportunity to say anything
,in answer to n charge of
perjury.
Held:
Appeal allowed, convictions
and sentences quashed.
There is no
need to set out the facts.
C. W.
Reece for the Crown.
W. Wells
PalmeR for first
Appellant. Second Appellant
present.
The
following joint judgment was
delivered:-
KINGDON,
C.J., NIGERIA, PETRIDRS, C J.,
GOLD COAST, GRAHAM PAUL, C.
J., SIERRA LEONE.
In this
case, at the close of a
Criminal Prosecution against
one Jimoh Amodu before
.Jackson J. in the High Court
of the Warri Judicial
Division, the two appellants
were called upon by the trial
.Judge to show cause why they
should not be committed to
prison as for a contempt of
court for lying and
prevaricating. There was no
suggestion at that time that
either of the appellants had
committed perjury.
The learned
trial .Judge heard what each
appellant had to say and heard
the evidence of other
witnesses; if, after doing so,
he had then committed the
appellants to prison for
contempt of court h)' lying
and prevaricating, it is
difficult to see how such
orders of committal could be
successfully questioned in
this Court. But the learned
trial .Judge did not do this.
Instead he recorded the'
following: -
"I sentence
Kalu Ukoha and Braimoh each to
four " months I.H.L. under the
provision of section 41 (b)
of the " Criminal
Procedure Ordinance."
It should
be section 41 (1) ( b).
Now it is an essential condition
precedent to a committal under
the said section 41 (1) (b)
that it shall appear to the
Court that the person has been
guilty of perjury, and section
42 provides that
" Before
committing a person to prison or
imposing a " fine on any person
under the last preceding
section, the " Court shall ask
such person if he has anything
to say why " sentence should not
be passed on him, and shall
record his
" answer in
full."
It is clear
that this means that the person
must be asked if he has anything
to say why sentence should not
be passed upon him as for a
contempt of Court by committing
perjury. In other words it must
be clearly intimated to him that
he is charged with perjury, the
assignment or assignments of
perjury must be specified and he
must be given an opportunity of
showing that the charge cannot
be supported, as well as urging
anything he may wish to do by
way of mitigation if he admits
the charge .
. The
provisions of this section 42
were not observed in the present
proceedings; until the moment
that sentence was passed there
was no suggestion that either of
the appellants had committed
perjury, and neither of them was
give~ any opportunity to say
anything in answer to a charge
of perjury. For this reason the
orders of committal cannot be
supported.
The appeals
of both appellants are allowed
the convictions and sentences
are quashed and it is directed
that in the case of each of the
appellants a judgment and
verdict of acquittal be entered.
The appellants are discharged .
6
