Dumbar v S (CR APP 26 of 1971) [1972] SLCA 1279 (15 February 1972)

SECTION 7 DUMBAR v. STATE, 1972-73 ALR S.L. 41 DUMBAR v. THE STATE Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): February 15th, 1972 (Cr. App. No. 26/71) C.A. [ 1] Criminal Law-insulting conduct-charge-defect in form without defect in substance of charge not prejudicial to accused in case tried without objection by defending counsel: A charge of insulting conduct towards another person or persons, contrary to s.3 of the Public Order Act, 1965, does not require the person or persons to be identified; nor does the use of the phrase "any or other person" instead of "any other person" render the charge bad for uncertainty since it does not affect the sub­ stance of the charge; moreover, where the accused is represented by counsel who allows the trial to proceed without objection, at which trial the accused himself gives evidence, the accused cannot then claim to have been confused, prejudiced or embarrassed by the phrase in the conduct of his case (page 4 7, lines 16-22, lines 32-34; page 49, lines 3-18). [2] Criminal Law-insulting conduct-charge-identification of person or persons insulted not required under s.3 of Public Order Act, 1965: See [1] above. [3] Criminal Law-insulting conduct-elements of offence-intent to provoke breach of peace to be established-experienced politician would reason­ ably foresee hostile reaction to insulting words at public meeting: When a person is charged under s.3 of the Public Order Act, 1965 with using insulting words with intent to provoke a breach of the peace at a public meeting, the intent of the offender is an essential ingredient of the offence; and the fact that the accused is a politician of long-standing experience may indicate that he would reasonably have foreseen and therefore intended a hostile reaction to insulting political remarks (page 4 7, line 36 -page 48, line 32). [ 4] Criminal Law-insulting conduct-interpretation-words considered in­ sulting contrary to s.3 of Public Order Act, 1965 to be interpreted in context in which spoken: Words which are alleged to be insulting contrary to s.3 of the Public Order Act, 1965 must be interpreted in the context in which they were spoken to determine whether they would amount to insulting conduct under the section (page 49, lines 22-27; page 50, lines 30-34). [ 5] Criminal Procedure-charges-form of charges-defect in form without defect in substance of charge not prejudicial to accused in case tried without objection by defending counsel: See [ 1] above. The appellant was charged in a magistrate's court with insulting conduct contrary to the Public Order Act, 1965, s.3. The appellant, a clergyman who was also a politician of long­ standing experience and a supporter of an opposition party, attended a public meeting at Koidu at which the Prime Minister 41 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS and other top-ranking politicians were present. The appellant alleged that after the opening speeches he asked for permission to address the Prime Minister, which was refused, and that he then sat down, saying as he did so that he was sorry for Sierra Leone 5 and for the Kono country. Becoming alarmed at the audience's mounting excitement he then left the hall, when he was set upon by a mob of young men who came running from inside the hall, threw him on the ground and beat him up. After the incident the appellant was arrested and charged with insulting conduct contrary 10 to the Public Order Act, 1965, s.3. Neither the place where the offence was alleged to have been committed, nor the person or persons alleged to have been provoked into committing a breach of the peace, were identified in the charge. At the trial in a magistrate's court the appellant pleaded not 15 guilty and made a no case submission which was overruled. The magistrate found the words spoken by the appellant at the public meeting to have been insulting and uttered with a view to provok­ ing a breach of the peace, and that a breach of the peace had in fact occurred. The appellant was found guilty, convicted and 20 sentenced to two months' imprisonment. On appeal to the High Court the appellant contended, inter alia, that the charge against him was bad for uncertainty and/or vagueness in failing to identify the place and the persons involved in the incident; and that the use in the charge of the phrase "any 25 or other person" when referring to the person or persons who were provoked was not merely unfortunate, but confusing and prejudicial to the appellant in the conduct of his case. The appel­ lant further contended that the circumstances in which he uttered the words complained of were such that they were neither threat- 30 ening nor insulting and that his conviction was unreasonable and such as could not be supported by the evidence. The State contended that since counsel for the appellant had not objected to the wording of the charge at the trial, but had submitted to the jurisdiction of the court and allowed the trial to 35 proceed, the appellant was well aware of the case he had to answer and had not in any way been prejudiced in his defence by the wording of the charge. The State also contended that the true meaning of words can only be gathered from the context and that the words "I am sorry for Sierra Leone" implied that the Prime 40 Minister and his government were not working in the best interests of Sierra Leone: the words were clearly insulting and uttered with 42 DUMBAR v. STATE, 1972-73 ALR S.L. 41 C.A. intent to provoke a breach of the peace. The High Court (Tejan, J.) upheld the decision of the magistrate's court and confirmed the conviction and sentence. On further appeal to the Court of Appeal the appellant reiterated the contentions in the court below. 5 The appeal was dismissed. Cases referred to: (1) Morten v. Williams, 1964-66 ALR S.L. 393, distinguished. (2) R. v. Phillip (1942), 8 W.A.C.A. 16, distinguished. Legislation construed: Public Order Act, 1965 (No. 46 of 1965), s.3(i): The relevant terms of this section are set out at page 4 7, lines 4-11. Public Order Act, 1936 (1 Edw. VIII & 1 Geo. VI, c.6), s.5: The relevant terms of this section are set out at page 46, lines 37-41. Criminal Justice Act, 1967 (15 & 16 Eliz. II, c.80), s.S: The relevant terms of this section are set out at page 48, lines 13-22. Mackay and Minah for the appellant; Thompson, State Counsel, for the State. FORSTER, J.S.C.: On January 15th, 1971 there was a public meeting at the Koidu Community Centre at which the Hon. Prime Minister was present and which was attended by the appellant as a member of the general public. An incident took place during the said meeting after which the appellant was arrested and charged on January 19th, 1971, under s.3(i) of the Public Order Act, 1965, in the following terms: "That you, the Reverend Paul Dum bar, on January 15th, 1971 made use of threatening and abusive language with intent to provoke any or other person to commit a breach of the peace contrary to s.3(i) of the Public Order· Act, 1965." The appellant, then the defendant, pleaded not guilty. The record of the trial before the learned magistrate discloses that the appellant was arrested at 10.10 a.m. on January 19th, 1971. A cautioned statement was taken from him in the Magis~ trate's Court's office at 10.20 a.m. on the self~same day and, after an investigation by the police officer who had arrested him and 43 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS had taken his said statement, was summarily hailed before the magistrate who had to stand the case down at 1 p.m., granted the appellant bail but began trying the appellant ten minutes later. There is no record of evidence showing how the appellant came to 5 be arrested nor by what method, whether by warrant or otherwise. Suffice it to say, he submitted to the jurisdiction and no mention of this act on the part of the police was made by the defence, arbitrary and unlawful though it would seem to have been, con­ sidering the provisions of ss.4 to 15 of Part 1 of the Criminal 10 Procedure Act, 1965. The appellant's answer to the charge was brief and in these words: "I am not aware of this charge, because I do not remember that I did insult anybody on January 15th, 1971, anywhere. This is all and true." Two witnesses, the police officer who arrested and 15 charged the appellant and recorded the charge and an eye-witness to the incident at the said meeting, the then Minister of Infor­ mation, gave evidence for the prosecution. The substance of this evidence was that the appellant used insulting language at the meeting in the hearing of the honoured guest and other persons 20 among those present, causing such commotion that, but for the intervention of security personnel there, the appellant would have been severely manhandled by government party adherents. This was the case for the prosecution. At the close of the prosecution's case, counsel for the appel- 25 lant submitted a 'No Case' which the magistrate over-ruled and called on the appellant to answer. The evidence in answer was given by the appellant alone. It was that he had attended the said public meeting, having been given a programme therefor by the Senior District Officer, Kono, thinking it was a public meeting 30 for all and sundry to meet the Hon. Prime Minister but which later, unexpectedly, became a political party meeting. The appel­ lant said that during the meeting, after a 'welcome' address and speeches by several other persons, he had signalled to the chair­ man of the meeting and said to him, "Please, can I talk to the 35 Prime Minister before he replies?" Continuing, he said: "I told the Resident Minister that I had seen the Senior District Officer who assured me that I could talk to the Prime Minister if I raised my hand. The Resident Minister then told me I was out of order and then I said, 'Please, it will not take 40 ten minutes. I want to make a statement here because I want the public to bear me witness.' He insisted that I was out of 44 DUMBAR v. STATE, 1972-73 ALR S.L. 41 C.A. order and I said, 'I am very sorry, sir' and took my seat. As soon as I sat down Mr. Minister C.A. Kamara-Taylor pulled at the microphone and chanted the APC slogan and burst into a song which others joined in to sing. At that point I felt that a meeting at which all members of the Kono District were 5 invited had been turned into a political meeting, where activists were entirely excited after that song. I was afraid and did not wait for the end of the meeting. When the Prime Minister started replying, I quietly got up and walked through the crowd, through the hall, under no escort and went past 10 the Prime Minister's car outside and got to a taxi about 200 yards away from the Community Centre." It was the appellant who gave evidence of the immediate sequel to the incident at the meeting which led to his being mobbed by some young men who, he said, came "running from inside the hall 15 ... They threw me on the ground and beat me all over." This was the case for the defence and neither counsel is recorded as address- ing the court at the end of the trial. The following day the trial magistrate delivered his judgment, convicting and sentencing the appellant to two months' imprisonment. 20 The appellant thereupon appealed on January 25th, 1971 to the High Court on two grounds, later by leave amended to five grounds, the last of which was eventually abandoned. The four grounds argued before the High Court were: (a) The charge upon which the learned trial magistrate con- 25 victed the appellant was bad for duplicity in that it charged two separate offences in one count. (b) The charge upon which the learned trial magistrate con­ victed the appellant was bad for uncertainty and vagueness. (c) The learned trial magistrate was wrong in law in finding the 30 appellant guilty of the offence charged. (d) The verdict was unreasonable or could not be supported having regard to the evidence. The appeal to the High Court first came before that court on May 25th, 1971 and, on June 2nd, 1971, counsel for both parties 35 agreed to and did apply for the case to be transferred to Freetown and the court so ordered that day. The case then came up before the High Court, presumably at Freetown, on July 23rd, 1971 and on six subsequent dates before being heard and disposed of in two hearing days, that is, on September 21st and 23rd, 1971, at which 40 latter date it was adjourned for judgment to October 7th, 1971, 45 THE AFRICAN LAW REPORTS judgment being given in the end on October 15th, 1971. The learned judge in the High Court considered arguments on the various grounds put forth. It is against his judgment that the appellant has now appealed to this court, originally on three 5 grounds, but by leave amended to four grounds as follows: 1. The learned trial judge was wrong in law in holding that the charge against the appellant was not bad for duplicity. 2. The learned trial judge was wrong in law in holding that the charge against the appellant was not bad for uncertainty and/or 10 vagueness. 3. The learned trial judge was wrong in law in holding that s.3(i) of the Public Order Act, 1965 was similar to s.5 of the English Public Order Act, 1936. 4. The verdict was unreasonable, unwarranted and such as could 15 not be supported having regard to the evidence. (As a matter of correction, the learned judge was not the trial judge, the original case having been heard by a magistrate, and thence to the High Court on appeal.) The learned High Court judge, Tejan, J., who heard the appeal, 20 reviewed the evidence before the magistrate and considered the criticisms against the latter's judgment, then finally decided in favour of that judgment and confirmed both the conviction and the sentence. This court heard arguments by the appellant's counsel, who also 25 conducted the appeal in the High Court, on all four grounds after which it adjourned for a brief period and, on resumption, an­ nounced to both counsel that it required to hear replies only to grounds 2 and 4 of the grounds of appeal. In my opinion, both grounds 1 and 3 were without substance. 30 Ground 1 was adequately dealt with by Tejan, J. with whose decision on that matter I am in agreement. In disposing of ground 3, I must refer to a portion of Tejan, J.'s judgment. He says: "However, the appellant was charged for an offence under the Public Order Act, 1965. In the case of Ward v. Holman 35 ([1964] 2 Q.B. 580; [1964] 2 All E.R. 729) the defendant was charged under s.5 of the English Public Order Act, 1936. The section enacts that-'Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the 40 peace or whereby a breach of the peace is likely to be oc­ casioned, shall be guilty of an offence.' This provision is simi- 46 - DUMBAR v. STATE, 1972-73 ALR S.L. 41 C.A. lar to the provision of the Public Order Act, 1965." Section 3 of the Public Order Act, 1965 under which the appellant was charged reads: "Any person who- (i) makes use of any threatening, abusive, insulting or ob- 5 scene language, gesture, or behaviour, or says or sings any insulting or offensive song or ballad, or makes any noise with intent to provoke any other person to commit a breach of the peace; ... shall, on conviction, be liable to a fine, not exceeding twenty leones or imprisonment for a period not 10 exceeding three months or both." 1 too hold that these two provisions are similar and so find ground 3 is without substance. State Counsel for the respondent replied to arguments in support of grounds 2 and 4 respectively. Ground 2 had earlier been taken 15 up and argued before Tejan, J. in the High Court. It is patent on the face of the record that the charge was not happily worded when it stated, inter alia, "with intent to provoke any or other person." But I am satisfied, from perusing the record of the case both in the magistrate's court and in the High Court that this 20 phrase did not confuse, prejudice or embarrass the appellant in the . conduct of his case at any stage. It was understood by him and correctly referred to by the learned trial magistrate in his ruling at page 3, lines 25 and 26 of the record of evidence before him which I quote here: "such intention being directed to any other person." 25 The appellant's counsel, arguing ground 2 in the appeal to this court-incidentally, this ground is numbered 2 also in the appeal to the High Court-complained that the phrase "any or other person" in the charge was vague, that nobody was mentioned in the charge and nobody was alleged to have been provoked. In 30 support of his contention he cited R. v. Phillip (2) and Morten v. Williams (1). Both these cases are distinguishable and the section under which the appellant was charged does not call for any particular person or persons aimed at being identified or named. I am in agreement with the decision of Tejan, J. on this point. 35 In regard to ground 4 I have considered a further criticism against the judgment of the learned magistrate by counsel for the appellant, that "the magistrate was not asked to determine whether the conduct of the accused was insulting." The marginal heading to the section under which the appellant is charged is "Insulting 40 conduct" and the section makes it an offence for any person to 47 THE AFRICAN LAW REPORTS use insulting language with the requisite intent. Had the learned trial magistrate omitted to consider and determine this question of "intention", I would hold that to be a substantial ground of appeal against his judgment. The "intent" of the offender is an essential 5 ingredient in the corpus of the offence. Was the evidence before the magistrate ample for him to be satisfied that the appellant must himself have been aware of the likely consequences following his interruption of the meeting? If so, the magistrate was correct to say that the appellant did the act with the requisite intent as 10 required for a conviction charged under the section. I may add in passing that s.8 of the English Criminal Justice Act, 1967 provides, even if only persuasively: "A court or jury, in determining whether a person has committed an offence,- 15 (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a, natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that 20 result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances." Tejan, J. in his judgment quoted this extract from the judgment of the learned trial magistrate: 25 "The accused is a politician of long-standing experience and a clergyman. In both capacities he is constantly in contact with the public and I am satisfied that a reasonable man in his position would expect the public at the meeting to react with some degree of hostility to his behaviour" 30 -adding that he entirely agreed with the learned trial magistrate. And so say I. There was, in my opinion, abundant evidence to support the conviction of the appellant on this ground. There is no appeal against sentence; there was none to the High Court either. I cannot say that the magistrate erred in imposing 35 the sentence he did on the appellant even if I think that had I been the trial magistrate I would have passed some other sentence. I would accordingly dismiss the appeal on all grounds. CORNELIUS HARDING, J.A.: 40 I have read the judgment of Forster, J.S.C. and I am in entire agreement that this appeal should be dismissed. 48 DUMBAR v. STATE, 1972-73 ALR S.L. 41 C.A. There is no merit in grounds 1 and 3 of the appeal. As far as ground 2 is concerned, the complaint is that the charge as it stood was bad for uncertainty and/or vagueness. In particular it was contended on behalf of the appellant that the place where the offence was alleged to have been committed was never specified in 5 the charge and also that it was not stated who was provoked, but simply "any or other person." In my view this relates to the form only of the charge and not to the substance. The appellant was represented by counsel and he could have taken the objection if he wanted to, but instead he submitted to the jurisdiction and the 10 trial proceeded thereupon, and not only were the two witnesses who testified for the prosecution cross-examined as to the incident giving rise to the appellant's prosecution, but the appellant himself gave evidence of the very same incident. I am satisfied that the appellant was well aware of the case he had to answer and even 15 though the use of the words "any or other person" may have been unfortunate, he had not in any way been prejudiced or embarrassed in his defence. As regards ground 4, the appellant himself stated that having made two unsuccessful attempts to gain right of audience at a 20 meeting at which he was not invited to speak, he apologized and sat down. He admitted that when he sat down he did say that he "was sorry for the Kono country." These words are not unmean­ ingful, and as learned counsel for the respondent has urged, the true meaning of words can only be gathered from the circum- 25 stances in which they were uttered, and the dictionary meanings are not necessarily conclusive. Counsel for the appellant has argued that the circumstances in which the words were uttered were such that they were neither threatening nor abusive, but both the learned trial magistrate and the High Court judge before whom 30 this matter first came on appeal thought otherwise. The former found as a fact that they were insulting, whilst the latter held the view that abusive conduct can be nothing less than insulting conduct. It was also held by both of them that the words were uttered with a view to provoking a breach of the peace being 35 committed, and that a breach of the peace was in fact occasioned. The provision of law under which the appellant was charged was intended to punish anyone found guilty of insulting conduct by use of any "threatening, abusive, insulting or obscene language, gesture, or behaviour" with intent to provoke any other person to 40 commit a breach of the peace. No matter what epithet was used to 49 THE AFRICAN LAW REPORTS describe the words used by the appellant which gave rise to the charge preferred against him, his conduct has been insulting, and I cannot uphold counsel's contention that his conviction was unreasonable or unwarranted and such as cannot be supported 5 having regard to the evidence. I would dismiss the appeal on all grounds. PERCY DAVIES, J.A.: I agree with my brother Forster, J.S.C. absolutely. I do not 10 propose to go in to the law which has already been reviewed at some length. However, I desire to make a few obsetvations. The learned trial magistrate found the accused "an intelligent clergyman. I say 'intelligent' from my obsetvations as he gave his evidence ... " The learned trial magistrate further said: "The 15 accused has offered no explanation for his comment in the audi­ ence about being sorry for Kono country. He said himself that he was of the opinion that the meeting had become a political meet­ ing in which activists were greatly excited. Surely he admittedly belonged to an opposing faction and would or ought to know 20 what reaction to expect to his comment." In order to determine whether the words "I am sorry for Sierra Leone; I am sorry for this country" were insulting or offensive and uttered in order to annoy any person in any place, I asked myself the question: Should a lawyer say to me in court: "I am 25 sorry for the independence of the judiciary," what would be my reaction? The innuendo I would draw from such an utterance would be that my decisions in court are governed by outside influences and that they are not given without fear or favour, ill­ will or affection. I would be terribly annoyed. 30 Similarly, for a politician belonging to an opposing faction to utter in the presence of the Prime Minister and other top-ranking politicians: "I am sorry for Sierra Leone; I am sorry for this country," is to imply that the Prime Minister and his government are not working in the best interests of Sierra Leone. 35 The magistrate also found that the accused offered no expla- nation for his comment in the audience about his being sorry for Sierra Leone and the Kono country. Although he was not obliged to offer an explanation, if he had done so, the trial magistrate might have been able to discover his motive when he uttered such 40 remarks at a political meeting. Finally, the trial magistrate found that the accused is "an 50 SECTION 8 YATTEH v. SIERRA LEONE DEV. CO. LTD., 1972-73 ALR S.L. 51 C.A. intelligent clergyman." As an intelligent clergyman, the accused knew or ought to have known of the biblical injunction: "If it be possible, live peaceably with all men." He could have left the meeting when he knew it had turned to a political meeting without making any comments. 5 Appeal dismissed. ,-<~ :-:;: -. y ATIEH v. SIERRA LEONE DEVELOPMENT COMPANY LIMITED Cj'[-U;~:··~) " ,"' /.1'0 I / Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): February 15th, 1972 (Civil App. No. 19/71) [1] Employment-safety-breach of common law duty-employer's duty to provide competent staff, adequate plant and appliances, safe place and safe system of work-employer liable if workman negligently injures himself in job for which declared to be incompetent: It is an employer's common law duty to take reasonable care of his workmen's safety so as not to expose them to unnecessary risk, by employing a competent staff of men and providing adequate plant and appliances, a safe place of work and access to it, and a safe system of work and effective supervision; and an employer is in breach of his duty to employ a competent staff if a workman negligently injures himself while carrying out a job for which he has been declared incompetent on professional advice (page 55, line 26- page 56, line 16; page 57, lines 10-15). ' ...... ~~.~~~~/ 15 20 [2] Employment-safety-breach of common law duty-onus on workman 25 injured in course of employment to prove employer's breach of duty of care when seeking damages for injury sustained: The onus in an action for damages for personal injury against his employer lies on a workman to prove that his injury was caused by the employer's breach of his common law duty of care to the workman (page 56, line 17). [3] Evidence-burden of proof-negligence-unsafe conditions of employ­ ment-onus on workman injured in course of employment to prove employer's breach of duty of care when seeking damages for injury sustained: See [ 2] above. [ 4] Tort-negligence-duty of care-duty of employer to provide safe employ­ ment-employer in breach of duty if workman negligently injures himself in job for which declared to be incompetent: See [ 1] above. The appellant brought an action in the High Court against the respondents to recover damages for an injury received through the respondents' negligence. The appellant, a dumper driver with the respondent company, was recommended for promotion to charge-hand to carry out 51 30 35 40