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J. B. BARDI AND ANOTHER
V.
L. H. MAURICE, HEADMAN, IBO COMMUNITY, SEKONDI-TAKORADI
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF FEBRUARY, 1954
2PLR/1954/54 (WACA)
OTHER CITATION(S)
2PLR/1954/54 (WACA)
LEX (1954) – XIV WACA 414-416
(1954) XIV WACA PP. 414-416
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBRBY, J.
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BETWEEN:
1. J. B. BARDI
2. CLEMENT IBE – Appellants
AND
L. H. MAURICE, HEADMAN, IBO COMMUNITY, SEKONDI-TAKORADI – Respondent
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ORIGINATING COURT(S)
Appeal by the defendants: No. 26/53.
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REPRESENTATION
Awooner Williams — for Appellants
Abbeusetts — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY – DEFAMATION:- Libel – Plea of justification – Fair comment – Statements of fact Allegation of disreputable motive – Publication to persons not interested – How properly treated
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PRACTICE AND PROCEDURE ISSUES:-
ACTION:- Suit commenced with certain descriptions after name – Whether descriptions makes suit one in representative capacity
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CASE SUMMARY
The respondent sued with the above description after his name and one argument in the appeal was that he had sued in a representative capacity.
The appellants wrote of him that his “tenure as Sekondi-Takoradi Ibo Head was suspicious and inimical to the welfare and interests of the Ibos at large, we the undersigned … decline our confidence, etc.”. They circulated this to various bodies and persons and also had it published in a newspaper.
The trial Judge ruled against the defendants (appellants) and the argument for them in their appeal was justification and fair comment-defences that they had made in the court below without success.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing that Appeal) that:
(1) To succeed on the plea of justification, the appellants-defendants had the onus to justify the imputation complained of by the respondent, but they bad failed to do so.
(2) They had alleged a disreputable motive, and that was an allegation of fact to be supported by evidence. Therefore the defence of fair comment failed.
(3) The appellants published the libel to persons who had no interest in the subject and were unjustified in what they had done.
Cases cited:-
(1) Hunt v. Star Newspaper Co. Ltd. (1908), 2 K.B. 321.
(2) Adam v. Ward (1917), A.C. 321.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The plaintiff sued the defendants for damages alleging that they bad falsely and maliciously written and published a letter of and concerning the plaintiff under the heading “Vote of non-confidence in Mr. L. H. Maurice recognised Sekondi-Takoradi Head Ibo Headman”, containing the following paragraph:-
“(2) And as much as Mr. L. H. Maurice’s tenure as Sekondi-Takoradi Ibo Head was suspicious and inimical to the welfare and interests of the Ibos at large we the undersigned … decline our confidence and strongly resent his headship over Takoradi and associate Ibos of the Ibo Union, Takoradi, as from 2nd June, 1951.”
The defendants did not dispute the plaintiff’s allegation that they caused the letter in question to be circulated to a large number of bodies and persons and that they also caused it to be published in the issue of the Takoradi Times dated the 21st June, 1951.
The plaintiff alleged that the defendants by their letter· meant to impute corrupt or dishonourable motives to him, and were understood so to mean by the persons to whom it was written and published.
The defendants pleaded, firstly, that the words complained of were true in substance and in fact, secondly, that they were a fair and accurate report of proceedings of a public meeting held by the Ibo Union of Takoradi on the 2nd June, 1951, upon the conduct of the plaintiff in relation to the Union, and were published without malice, thirdly, that they were fair comment made in good faith and without malice on a matter of public interest, and fourthly, that the words complained of were not capable of bearing the meaning alleged by the plaintiff. They also contended that the plaintiff who headed his writ and statement of claim “L. H. Maurice, Headman, Ibo Community, Sekondi-Takoradi”, was suing in a representative capacity and had no authority for so doing.
The case was tried by Lingley, J., who held that the heading of the writ and statement of claim was merely descriptive and that the plaintiff was not suing in a representative capacity, a ruling with which I respectfully agree.
He found against the defendants on their plea of justification, saying, “The defence to which evidence has been mainly directed is that of justification. After hearing the witnesses I consider that the defence fails completely. The witnesses for the defence have failed to satisfy me that there is any substance in their allegations”; he also found· as a fact that the words complained of are capable of bearing the meaning alleged, and he held that the defence of fair comment and qualified privilege had not been established.
Although he finally admitted that the defendants “may have failed in their plea of justification”, the main arguments, before us, of counsel for the appellants were directed towards showing that the learned trial Judge erred in holding that the pleas of justification and fair comment had not been satisfactorily established. He did not contend that the expressions “suspicious and inimical to the welfare and interests of the Ibos at large” were not intended by the defendants, and understood by the persons to whom the same were written and published, to mean that the plaintiff was corrupt and dishonourable, and in the light of the evidence given by the defendants and their witness I think he was right in abstaining from doing so.
In order to succeed in their plea of justification the onus was upon the defendants to justify the precise imputation complained of, and there can, in my view, be no doubt that the learned trial Judge was right in holding that they failed to establish this defence.
It is also my view that the words complained of are statements of fact, not a comment or criticism. To allege a disreputable motive, as was done here, is to make an allegation of fact which must be supported by adequate evidence: Hunt v. Staff Newspaper Co. Ltd. (1). For these reasons I am of the opinion that the learned trial Judge was correct in his finding that the defence of fair comment had failed. ·
It appears clear that the document in question, exhibit “J”, was sent to the thirty individuals, newspapers, bodies and officials indicated at the foot thereof, many of whom could not, as it seems to me, have any legitimate interest in its subject-matter. Nor do I think that it can be said that the contents of the document were of general public interest justifying the defendants in causing it to be published in the Takoradi Times.
The fact that the communication may have been privileged as between the defendants and the “Takoradi and associate Ibos of the Ibo Union” does not justify its publication to other persons who have no interest whatever in its subject-matter, nor any duty in connection therewith.
“A man ought not to be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact publishes it;” Earl Loreburn in Adam v. Ward (2).
It follows, therefore, that I am in accord with the finding of the learned trial Judge on this aspect of the case.
For the foregoing reasons I would dismiss this appeal with costs fixed at £22 17s. 0d.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.
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