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C. S. T. EDMONDSON
V.
P. S. N’JIE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
30TH DAY OF JUNE, 1954
2PLR/1954/41 (WACA)
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OTHER CITATION(S)
2PLR/1954/41 (WACA)
(1954) XIV WACA PP. 576-579
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
C. S. T. EDMONDSON – Appellant
AND
P. S. N’JIE – Respondent
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ORIGINATING COURT(S)
Appeal by the defendant against a judgment of Miles, J., sitting in the Supreme Court of the Colony of the Gambia
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REPRESENTATION
Dobbs for Appellant
No appearance for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY LAW – DEFAMATION:- Libel – Privilege – Malice
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CASE SUMMARY
The appellant, a legal practitioner in Sierra Leone, received by post from the Gambia a complaint from someone alleging that the respondent, a legal practitioner in the Gambia, had obtained a tenancy agreement by fraud. The appellant wrote a letter to the respondent setting out his client’s complaint and asking him for information; the respondent wrote an answer; the appellant sent the respondent’s letter together with the complaint to the Attorney-General. Admittedly there was defamatory matter but the Judge held that the appellant had a duty to communicate with the Attorney-General of the Gambia and the occasion was one of qualified privilege, which, however, was destroyed on the ground that in the Judge’s view the appellant had been actuated by malice which was evidenced by the fact that the appellant some months later told the respondent that he did not believe his client’s story, and by the facts that the appellant did not enclose a copy of the tenancy agreement which was inconsistent with his client’s allegation; that the appellant did not interview his client to judge whether he was a reliable person and did not satisfy himself that his allegations were true; that the appellant did not mark his letter to the Attorney-General as Confidential and stated that the complaint was that the client’s signature was a forgery (instead of saying that it was obtained by fraud); and that the appellant did not turn up at the trial in the Gambia but imputed to the respondent fabrication of evidence in regard to the interview between them. The Judge gave judgment in favour of the respondent (who was the plaintiff below) for damages, and the defendant appealed.
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. A solicitor who does not know or cannot be deemed to have known that a claim is false has no duty to satisfy himself as to his client’s veracity before acting for him and the question whether or not the appellant believed his client’s story was irrelevant.
2. The appellant took the proper course in communicating with the Attorney-General before bringing an action on his client’s instructions, and none of the circumstances regarded by the trial Judge as evidence of malice were such evidence as destroyed the privilege of the occasion.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal by the defendant against a judgment of Miles, J., sitting in the Supreme Court of the Colony of the Gambia, by which he awarded the plaintiff the sum of £1,000 damages for libel.
The plaintiff and defendant are legal practitioners carrying on their profession in the Gambia and Sierra Leone, respectively, and the alleged libel is contained in a letter written by the defendant, dated 28th April, 1953, addressed to the Attorney-General of the Gambia, and in a written statement of the defendant’s client, one Sanjali Bojang, which was enclosed in the letter.
Before writing his letter to the Attorney-General the defendant wrote a letter to the plaintiff, dated 10th February, 1953, in which he set out the gist of his client’s complaint and asked the plaintiff to let him know his “side of the matter”, a copy of the plaintiff’s letter in reply, dated 21st February, 1953, also formed an enclosure to the defendant’s letter to the Attorney-General.
It was not disputed that the letter of the 28th February, 1953, and the statement forwarded with it contained matter defamatory of the plaintiff, but the learned trial Judge, rightly I think, held that the defendant had a duty as solicitor for Sanjali Bojang to take the necessary steps to prosecute his client’s claim, that in the circumstances the Attorney-General of the Gambia was the correct authority to refer the matter to for investigation, and that the letter and written statement were, therefore, published to the Attorney-General on an occasion of qualified privilege, but he went on to find that the defendant had been actuated by malice, which destroyed the privilege.
It was proved that the defendant, at an interview which took place between himself and the plaintiff on the 21st May, 1953, stated that he did not believe his client’s story, and the learned trial Judge came to the conclusion that the fact that the defendant did not honestly believe his client’s statement was “strong evidence of malice”, which, taken in conjunction with other matters, showed a malicious intention to injure the plaintiff.
It seems to me that the finding that lack of honest belief in his client’s statement was strong evidence of malice is fundamental to the judgment and it is, therefore, necessary to determine with some degree of precision the position of a solicitor in circumstances such as arose in this case.
There can be no doubt that the client’s statement accused the plaintiff of fraud, and I think the defendant was right m his assumption that the criminal aspect of the case should be investigated before any civil remedy was proceeded with.
In my view the question whether or not the defendant believed his client’s story is irrelevant; it would be a different matter if it were proved that he knew as a fact that his client’s story was false, but that is not the position here.
The defendant’s letter to the Attorney-General is clearly based on his client’s instructions, and he did not assert any belief in them. I am unable to accept the proposition that it is the duty of a solicitor to satisfy himself as to his client’s veracity before acting for him; to so hold would, in my opinion, place an unduly heavy responsibility on his shoulders; but that does not mean that he will be condoned if he prosecutes a claim which it can be shown he knows to be false or where the circumstances are such that he must be deemed to have known that it was false.
The defendant might have advised his client to set the criminal law in motion straightaway. It was, presumably, because he felt that the matter ought, in the first instance, to be further investigated that he referred it to the Attorney-General with a request that it should be, and it seems to me that he was performing the ordinary duty of a solicitor in so doing.
The defendant’s failure to enclose in his letter to the Attorney-General a copy of the tenancy agreement which the plaintiff had sent to him was held to be a further indication of his desire to injure the plaintiff, because that document was inconsistent with his client’s allegations. The existence of such an agreement is explained in the plaintiff’s letter of 21st February, 1953, a copy of which the defendant sent to the Attorney-General, and I am unable to see how it can fairly be said that there was any attempt at concealment. The defendant instructed his client to submit any documents he had to the Attorney-General when called upon to do so, and paragraph 4 of his letter of the 28th April, 1953, to the Attorney-General contains a clear intimation that such instructions had been given. The plaintiff could, no doubt, have supplied the Attorney-General with a copy of the tenancy agreement if the defendant’s client was unable to do so.
Sanjali Bojang’s statement had not been signed by him when a copy of it was sent to the Attorney-General, and the plaintiff called a witness, one William Ojago Max Grant, who testified that on the 19th May, 1953, the defendant asked him to read the statement and explain it to Sanjali Bojang and that after he had done so the latter then “signed it”. The witness also testified that when he was asked to read and explain the statement to Sanjali Bojang the defendant said, “Whether he understands it I don’t know.”
When dealing with this aspect of the case the learned trial Judge said:-
“Neither the defendant nor Sanjali Bojang gave evidence and the circumstances in which this typed statement was prepared remain shrouded in mystery. I think, however, there is an irresistible inference that the defendant had by that time not seen Sanjali Bojang and he therefore had no opportunity to judge whether he was a reliable and trustworthy witness or not … So far then from believing that the statement was true the defendant up to that time did not know whether the statement was a statement by Sanjali Bojang or not”,
and he held that this was further evidence of a malicious intention to injure the plaintiff.
The Gambia is a long way from Sierra Leone, and I do not think too much significance should be placed on the fact that the defendant had apparently not seen his client before he addressed his letter to the Attorney-General. It seems clear that his instructions were received through the medium of correspondence. He undoubtedly might have acted with greater caution, but I am unable to accept the proposition that his conduct was of such a nature as to show a malicious intention, and I cannot help feeling that the learned trial Judge would not have found that it was had he not come to the conclusion that before acting on his client’s instructions it was the defendant’s duty to satisfy himself that they were true.
The defendant’s letter to the Attorney-General was not marked private or confidential, and the trial Judge held that he must have had sufficient knowledge of office routine to be perfectly aware that a letter not so marked” is bound to pass through one or more hands before it reaches the addressee “. From this circumstance he held that there had been excessive publication which was further evidence of malicious intention to injure.
It is the case that the Attorney-General said in his evidence:-
“…I think if the envelope had been marked’ con1idential’ it would have come to me unopened. That is the normal practice. It is not the normal practice for correspondence marked ‘Confidential’ to be opened by my clerk,”
but I do not think the method of addressing the letter can reasonably be said to be so outside the usual procedure as to justify an inference of malice, and it follows that I am unable to agree that the defendant’s failure to mark the envelope ‘Confidential’ justifies the conclusion that the privilege by that omission was abused.
The statement in the first paragraph of the defendant’s letter of 28th April, 1953, which reads:-
“My instructions were to take proceedings to cancel the alleged deed of conveyance on the ground that it was not signed by my client and was in fact a forgery on the part of Mr. N’Jie,”
was also held to be evidence of malice, since Sanjali Bojang’s statement alleges that his signature to the deed was obtained by fraud, not that it was a forgery. There can be no doubt that the defendant erred in describing the nature of the complaint, but, here again, I am unable to agree that it justifies an inference of malice. The letter was addressed by one lawyer to another and the statement containing the complaint was sent with the letter so there could hardly have been an intention to deceive or mislead the Attorney-General regarding the nature of the offence alleged.
The learned trial Judge also says in his judgment:-
“The defendant had on a previous occasion in 1950 libelled the plaintiff in a letter to the then Attorney-General,”
and he held that this was further evidence from which a malicious intention to injure the plaintiff could be inferred. It is true that the plaintiff when giving evidence alleged that the defendant had on a previous occasion published a libel against him, but I can find nothing in the letter, exhibit “13”, which was put in evidence in support of the contention, to justify the plaintiff’s statement or the trial Judge’s finding.
Finally, the learned trial Judge held that the defendant’s conduct in relation to the trial of this case was also material on the issue of malice. The relevant portion of the judgment reads as follows:-
“… The conduct of the defendant in these proceedings is, I think, not immaterial on this issue also. He has not appeared in Court or called any evidence. He made an application on the first day of the trial for his evidence to be taken in Sierra Leone. He based his application on an affidavit from a medical practitioner to the effect that he was unfit to travel. This application was withdrawn before I had an opportunity of ruling on it. He then instructs his advocate, in his absence, to impute to the plaintiff the deliberate fabrication of evidence.”
The imputation of “the deliberate fabrication of evidence” presumably has reference to the dispute as to what took place between them when the parties met in Bathurst on the 21st May, 1953. The incident is referred to in paragraph 2 of the plaintiff’s letter to the defendant, dated 30th June, 1953, exhibit “P9”, in the defendant’s letter of reply, dated 6th July, 1953, exhibit “P7”, and in the last line of the cross-examination of the plaintiff on page 29 of the record.
There can, I think, be no doubt that the defendant would have been better advised if he had attended the trial and given evidence, but I am unable to agree that, in the circumstances of this case, it would be right to infer that he wrote the letter to the Attorney-General with “a malicious intention to injure the plaintiff”, from the fact that he instructed his advocate to contest the correctness of the plaintiff’s version of the interview in question.
For the reasons I have given I would allow this appeal, set aside the judgment of the Court below, and enter judgment for the defendant with costs to be taxed. The appellant to have his costs on this appeal to be taxed.
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SMITH, C.J., SIERRA LEONE.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal allowed.
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