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ISSA BIA
V.
A. H. MURRAY
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH DAY OF APRIL, 1954
LEX (1954) – XIV WACA 499-500
OTHER CITATION(S)
2PLR/1954/51 (WACA)
(1954) XIV WACA PP. 499-500
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BEFORE THEIR LRODSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
LUKE, J.
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BETWEEN:
ISSA BIA – Appellant
AND
A. H. MURRAY – Respondent
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ORIGINATING COURT(S)
Appeal from Supreme Court by defendant: No. 11/54.
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REPRESENTATION
C. S. T. Edmondson, with F. C. Wright — for Appellant
A. J. Massaly — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW — DEFAMATION:- Libel — Circumstances of publication — Where occasioned by plaintiff — Privilege — Malice — How properly treated
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CASE SUMMARY
The plaintiff (appellant), who was a stores orderly in the service of a company, was prosecuted for theft of canvas and acquitted. When he came for work he refused to say who had stolen the canvas, whereupon the defendant said he would have him dismissed. Later defendant wrote on a report, “Involved in a theft of three yards canvas and, although found not guilty, I maintain this canvas was stolen from our main stores”, and gave it to the plaintiff to take to the Labour Office and the Registration Office, in accordance with practice, from where it would be passed to the general manager to decide. The plaintiff, an illiterate, showed it to someone, who read it to him; he kept the form, absented himself and sued the defendant for libel. The trial Judge thought the defendant’s language showed express malice and destroyed the privilege of the occasion; he also thought that the defendant was responsible for plaintiff’s showing the report to a third party by giving it open to the plaintiff (but there was no evidence of any practice to enclose it in an envelope). The Judge gave the plaintiff damages. The defendant appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
(1) The occasion being privileged, plaintiff had to show actual malice in the defendant, but of this there was no evidence in the language used by the defendant.
(2) The defendant was not responsible for the publication brought about by plaintiff diverting the report from its routine course.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
The questions that arise in this appeal are whether the libel complained of by the plaintiff was written by the defendant on a privileged occasion and if so whether there was evidence of real or, as it is termed, express malice. There is the further question whether there was publication to a person other than the addressees.
The facts as stated by the learned trial Judge are that the plaintiff, who was employed as an orderly in the stores department of the Sierra Leone Development Company at Marampa, was prosecuted before a Magistrate and acquitted of the theft of three yards canvas. Two days after his acquittal the plaintiff presented himself for work, when the defendant, who was then the chief storekeeper, pressed the plaintiff to reveal the person concerned in the alleged theft of the canvas. When the plaintiff refused to give information the defendant said, “I am going to get you dismissed”. Afterwards the defendant wrote on a report form, the words complained of, namely ” Involved in a theft of three yards canvas and, although found not guilty, I maintain this canvas was stolen from our main stores”.
The defendant directed the plaintiff to take the form, not enclosed in an envelope, to the Labour Office and then to the Registration Office. In the ordinary course, the form would then have been passed on to the commercial manager and by him to the general manager, with whom the decision rested whether the plaintiff should be dismissed or further employed. This was proved to be the usual practice. After taking the form to a Mr. Cole at the Labour Office for registration, the plaintiff, who is illiterate, apparently out of curiosity as to its contents, took the form to a third person who read it to him. He thereafter kept the form, absented himself from the Company without waiting to learn whether he would be further employed and brought his action. The defendant had left Sierra Leone and the service of the Company before the trial of the suit.
There is no evidence that it was the practice to place the form in an envelope before handing it to an employee.
The learned Judge held that the occasion was privileged, but that the qualified privilege was destroyed by express malice in that the defendant after the plaintiff’s acquittal on the theft charge still wrote expressing the view as a fact that he was involved in the theft of the canvas. The learned Judge observed that if the defendant, instead of stating that the plaintiff “was involved in the theft” bad stated that he was “of the opinion” that the plaintiff was involved in the theft, there would not be intrinsic evidence of malice. He awarded the plaintiff for general damages and from this judgment the defendant appeals.
With the reasoning of the learned Judge I am respectfully unable to agree. It was the duty of the defendant in the protection of the interests of the Company to report to his superior. To hold it against the defendant that he did not employ the precise words suggested by the learned trial Judge would, I think, violate the important doctrine that the law does not restrict within narrow limits the right to make a communication in such circumstances nor the language used in doing so.
There being a presumption in the defendant’s favour of absence of malice and the plaintiff having to show actual malice in order to rebut that presumption, the question is not whether the plaintiff stole the canvas but whether the words were used by the defendant honestly and bona fide in reporting to the general manager. Reading the three parts of the publication as a whole, the involvement of the plaintiff, his acquittal and the actual loss of the canvas, malice in my opinion is to some extent negatived by the fact that the defendant reported that the plaintiff had been found not guilty of the charge, leaving it open to the general manager to decide whether or not the plaintiff should be further employed. Nor do I consider that the words used by the defendant expressly re-assert a belief in the actual charge preferred against the plaintiff of which he had been acquitted so as to be evidence of malice.
The learned Judge makes no finding that there was extrinsic evidence of malice and I am of opinion that he erred in holding that there was intrinsic evidence. It follows that in my view the qualified privilege was not destroyed.
The learned Judge also held that in handing the form to the plaintiff unenclosed, the defendant was responsible for the plaintiff’s act in showing it to a third person to read to him. It is his misfortune to be illiterate, but that is no reason for holding the defendant responsible for this publication which was brought about by the plaintiff himself diverting the form out of its routine course through the Labour and Registration Departments to the manager of the Company.
For the reasons I have given I am unable to agree that the plaintiff’s claim was established and I would therefore allow this appeal, set aside the judgment of the Court below and enter judgment for the defendant with costs both in this Court and in the Court below to be taxed.
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FOSTER-SUTTON, P.
I concur.
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LUKE, J.
I concur.
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Appeal allowed; Judgment for appellant-defendant.
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