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ADJEI AND ANOTHER
V.
THE KING
WEST AFRICAN COURT OF APPEAL, GOLD COAST, ACCRA
16TH DAY OF AUGUST, 1951
2PLR/1951/8 (WACA)
OTHER CITATIONS
2PLR/1951/8 (WACA)
[1956] XIII WACA P. 253
LEX (1951) – XIII WACA P. 253
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BEFORE THEIR LORDSHIPS
COUSSEY, AG. C.J. (GOLD COAST),
JACKSON, J.
KORSAH, J.
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BETWEEN
AKO ADJEI AND WILLIAM SAMUEL JOHNSON – Appellant
AND
THE KING – Respondent
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REPRESENTATION
E. O. LAMPTEY — for first Appellant
HEWART-MILLS — for second Appellant
P. HOLLAND, Crown Counsel — for Respondent
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ISSUES FROM THE CAUSE(S) OF ACTION
ADMINISTRATIVE AND GOVERNMENT LAW:- Hate speech — Sedition and the promotion of public safety — Publication intended to incite hatred or ill-will against a defined class of society — How treated
CRIMINAL LAW AND PROCEDURE:- Sedition — How proved — Intention required to convict for seditious writing — Whether the proprietor of a newspaper is answerable criminally for the publication of a libel, though he has nothing to do with the publication and the whole is conducted by his servants
HUMAN RIGHT AND MEDIA LAW:- The crime of sedition and Right to freedom of Expression — Publication deemed Seditious — Criminal responsibility of Chairman and Managing Director of a newspaper where he has appointed an editor and has no knowledge of the seditious article — Whether enough to show that defendant as Managing Director directly promoted and therefore authorised the publication of the newspaper
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PRACTICE AND PROCEDURE ISSUES
COURT:- Trial judge failing to set out his summing up verbatim and instead writing notes or heads of his summing up as they appear in the record of appeal — Whether fatal — Whether there is need to show misdirection or non-direction in the summing up for conviction arising therefrom to be quashed
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MAIN JUDGMENT
The following judgment was delivered: for COUSSEY, AG. C.J.:-
We have no hesitation in holding that the newspaper article complained of is seditious. The Syrians are an order or division of the population of this country and as such a well-defined class. The article is clearly directed at that class, as the trial judge found, and it is calculated to promote feelings of hostility against them by Africans by reason particularly of the alleged commercial methods of the Syrians.
This disposes of the main ground of appeal of the second appellant, William Samuel Johnson, namely, that the article published by him as Acting Editor of the African National Times could only be regarded as abuse and invective, and that however severe and indignant it may be, it does not amount to a seditious writing. Although this appellant’s notice of appeal does not set out in what respect the conviction is wrong in law, it has been argued that the trial amounted to a nullity because the learned judge, instead of setting out his summing up verbatim, wrote notes or heads of his summing up as they appear in the record of appeal. But Counsel for the appellant has been unable to refer to any misdirection or non-direction in the summing up and this unsatisfactory method of arguing a ground of appeal does not commend itself to the Court. It is sufficient to say that there is a record of the judge’s summing up, although it is desirable that the summing up should be more fully set out in the record. There are no merits in the second appellant’s appeal and it is dismissed.
The main question for decision in the case of the first appellant is whether, as Chairman and Managing Director of the African Press Association Limited, which published the article in the African National Times newspaper, he was rightly convicted under section 326 (2) of the Criminal Code of publishing a seditious writing.
Section 326 (2) provides:
“(b) Any person who prints or publishes by any such act as is specified in Title 18 any seditious words or writing … shall be liable for a first offence, etc.”
Title 18 relates to libel and defines publication as follows:
“A person publishes a libel if he causes the print, writing, painting, effigy, or other means by which the defamatory matter is conveyed, to be so dealt with, either by exhibition, reading, recitation, description, delivery, or otherwise, as that the defamatory meaning thereof becomes known or is likely to become known, to either the person defamed or any other person.”
By section 326(8) seditious intention is defined as an intention to promote feelings of ill-will and hostility between different classes of the population of the Gold Coast.
The appellant argues that in law he could not be liable for the publication, and he has referred to R. v. Allison & Others (1) and Regina v. Holdbrook (2). He contends that as he had appointed an editor of the paper and the article was published, according to him, without his knowledge and consent, and he gave no instructions for its publication and did not, as Managing Director, take responsibility for what appeared in the African National Times, he was wrongly convicted. In his submission the general authority given to the Editor to conduct the newspaper involved, so far as criminal proceedings are concerned, an authority only to conduct it in a lawful manner and that there is sufficient evidence to disprove mens rea on the first appellant’s part; and Christy, Manson and Wood v. Cooper (3) was cited in support of the proposition that mens rea should have been proved and could not be inferred.
At the outset of the appeal Mr. Heward-Mills appeared to rely on Regina v. Holdbrook, a ease decided under section 7 of the Libel Act, 6 and 7 Viet. c. 96, which provided that where, on an indictment for the publication of a libel, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of another person by his authority, it shall be competent to the defendant to prove that such publication was made without his authority, consent or knowledge, and that the said publication did not arise from want of due care or caution on his part. But in the course of the argument Mr. Heward-Mills, very properly, conceded that the section of the Libel Act of 1843 set out supra had, by our Statute Law Revision Ordinance, Cap. 2, been declared not to be in force within the jurisdiction of the Supreme Court of the Gold Coast.
The law of sedition is in many respects a hard one, but it is the duty of the Courts to administer the law as it is declared and not as any particular individual would wish it to be.
Although, as a general rule, there must be a mind at fault before a crime is committed, this is not an inflexible rule, for a provision in the Criminal Code may relate to such a subject matter and be so framed as to make an act criminal whether there has been any intention to break the law or not.
The mental element of most crimes is stated by some such word as “knowingly”, “negligently”, “fraudulently “ or “maliciously”, but there may be an absolute statutory prohibition. Thus, in Title 22 of the Criminal Code which relates to forgery (section 297), the words, “whoever with intent to defraud”, and “without lawful excuse“ and “fraudulently“ and “without lawful authority or excuse“ occur, but in the case of section 326 no such words are set out and it is therefore clear that as regards that section intention is regulated only by the definitions as to what is a seditious intention as set out in section 326 sub-sections 1 to 6. Section 326 sets out in effect the law as to sedition as it existed in England before the enactment of section 7 of the Libel Act already referred to, and it is as well that the public should bear in mind that the law in this Colony is that a man shall not disobey the positive statutory enactment of section 326. In our view, the general scheme of the enactment under which the appellant was convicted must be looked at and we find that Title 23 under which section 326 is placed, relates to offences against the safety of the state. That being so, proof of knowledge or mens rea on the part of a publisher be he Chairman, Managing Director or, Editor, is not placed on the prosecution, for if it were, the enactment would be nugatory as it would always be open to the accused to say, as the defendant says, that he was unaware of the publication and that it was not his duty to take precautions as to the writing, with the obvious result that a proprietor or director might shut his eyes to publications by his press which were positively seditious, as this one is, without the possibility of a conviction against him.
When it is established that the writing is seditious within the definition of a seditious intention, in our view the law under our Criminal Code is the same as the law was in England at the time when R. v. Walter (4) was decided in 1799, namely, the proprietor of a newspaper is answerable criminally for the publication of a libel, though he has nothing to do with the publication and the whole is conducted by his servants.
The only question here is whether the appellant authorised the publication of the paper not whether he authorised the publication of the particular seditious matter. We must hold that the defendant as Managing Director directly promoted and therefore authorised the publication of the newspaper. That paper contained matter which, we have already held, was clearly seditious within the definition as being expressive of an intention to incite feelings of ill-will and hostility against Syrians; and apart from this, there are the trial Judge’s findings of fact against the appellant with which we agree, that knowing the qualities of the other accused as Managing Editor and Acting Editor, he did not exercise due care and caution to ensure that the publication complained of did not offend against the laws of the Gold Coast.
The appeals are therefore dismissed.
Appeals dismissed.
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