KEH V. KOFI - West African Court of Appeal & Privy Council: Cases & Materials

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CONSOLIDATED SUITS]

PHILIP KEH OF HO

VANDELINUS MOITE KOFI II, ETC., AND OTHERS

THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST

2ND DAY OF APRIL, 1954

APPEAL NO. 16/53

2PLR/1954/60 (WACA)

OTHER CITATION(S)

2PLR/1954/60 (WACA)

(1954) XIV WACA PP. 480-483

LEX (1954) – XIV WACA 480-483

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BEFORE THEIR LORDSHIPS:

FOSTER-SUTTON, P.

COUSSEY, J. A.

WINDSOR-AUBREY, J.

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BETWEEN:

CONSOLIDATED APPEALS

PHILIP KEH OF HO- Appellant

AND

VANDELINUS MOITE KOFI II, ETC., AND TWENTY-FIVE OTHERS – Respondents

AND

PHILIP KEH OF HO – Appellant

AND

VANDELINUS MOITE KOFI II, D1VISIONAL CHIEF OF HO – Respondents

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ORIGINATING COURT(S)

Two consolidated appeals by plaintiff

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REPRESENTATION

Akufo Addo — for Appellant

Hayfron-Benjamin — for Respondents

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ISSUE(S) FROM THE CAUSE(S) OF ACTION

TORT AND PERSONAL INJURY LAW – DEFAMATION:- Libel – Qualified privilege – Malice – Contents of letters – Finding that there was no malice – Absolute privilege on State matte – Immunity under section 8(1) of the Native Authority (Southern Section of Togoland under British Mandate) Ordinance, No. 7 of 1949.

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CASE SUMMARY

“I protest against the notion that a Judge has a right to say that, if the jury find that the statement is excessive, though they decline to find actual malice, the law infers it. If the law did so, it would often be inferring what is not true. A man may use excessive language and yet have no malice in his mind,” per Lord Esher, M.R., in Nevill v. Fine Arts and General Insurance Co., 2 Q.B. at p. 170.

The above-cited section 8(1) provides that:-

“No action shall be brought against a Native Authority, or any member or servant thereof, in respect of any act done in good faith in the execution or intended execution of the powers conferred by this Ordinance.”

The plaintiff (appellant above) sued for libel on two letters written to Administrative Officers of Government, one by the Paramount Chief, a member of the Native Authority of his State, and the other by him jointly with his Divisional Chiefs and Elders, who were objecting to the plaintiff’s election to the Native Authority. The trial Judge found against the defendants on all their pleas except qualified privilege but also found that the plaintiff had failed to prove malice and dismissed the claims. The plaintiff appealed.

For the plaintiff it was submitted that though there was qualified privilege, the language was so excessive as to furnish intrinsic evidence of malice.

For the respondent it was argued, in addition to the finding of no malice, that the occasion was absolutely privileged, as the matter was germane to the administration of his State, and that the above section 8(1) conferred immunity.

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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL

Held (dismissing the Appeals) thus:

The trial Judge observed that some expressions were a gross exaggeration but having heard the first respondent and other witnesses was satisfied that they had written the letters bona fide on an occasion of qualified privilege, and the Court was not prepared to say that he was wrong in saying that malice had not been proved.

Obiter:

(1) A letter written in the circumstances here, objecting to the appellant’s election to the Native Authority, cannot be regarded as a “State matter” and as such absolutely privileged.

(2) It could not reasonably be said that the letters were written in the execution or intended execution of any power conferred by the Ordinance No. 7 of 1949; therefore immunity under section 8(1) thereof could not be claimed.

Cases cited:-

(1) Chatterton v. Secretary of State for India, 1895, 2 Q:B. 189.

(2) Gibbons v. Duggell, 1932, 47 Commonwealth L.R. at p. 534.

(3) Nevill v. Fine Arts and General Insurance Company, 2 Q.B. at p. 170.

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MAIN JUDGMENT

The following Judgment was delivered:

FOSTER-SUTTON, P.

This was an appeal from a judgment of Morgan, J., given in proceedings in which two actions brought by the plaintiff were consolidated. The first suit No. 118 of 1950, claimed damages against Vandelinus Motte Kofi II and the twenty-five other defendants, for a libel said to be contained in a joint letter written by them on the 15th June, 1950, and the second, suit No. 119 of 1950, claimed damages for libel against the first defendant in respect of a letter written by him dated 7th June, 1950.

The first defendant is a Divisional Chief of Ho, a member of the Asogli Native Authority and the Paramount Chief of the Asogli State, and the other defendants are Divisional Chiefs and Elders of the Ho Division.

The defendants admitted writing the two letters in question and also admitted that they were published to the District Commissioner of Ho, the Chief Commissioner of the Colony and the Colonial Secretary, but pleaded privilege, protection under section 8 of the Native Authority (Southern Section of Togoland under British Mandate) Ordinance, 1949 (Ordinance No. 7 of 1949), fair comment and justification, and the first defendant also maintained that his letter of the 7th June was absolutely privileged.

The learned trial Judge found against the defendants on all their pleas except that of qualified privilege, and having found that the plaintiff had failed to prove malice he dismissed the action and gave judgment for the defendants.

At the hearing of this appeal the plaintiff-appellant’s counsel argued his case on the footing that a qualified privilege did attach to the two communications, but submitted that the language employed was so excessive and went so far beyond the necessities of the occasion that there was intrinsic evidence of malice. The respondent’s counsel abandoned any question of justification and fair comment, but in addition to arguing that the trial Judge’s finding of no malice was fully justified, he submitted that the occasion was absolutely privileged, and maintained that Ordinance No. 7 of 1949 gave the defendants immunity. Although, having regard to the conclusion I have reached in this matter, it is unnecessary to give a decision on these two points, they were argued so strongly that I feel impelled to express my opinion on them.

The defence of absolute privilege was pleaded only on behalf of the first defendant, in an amended defence filed on the 8th December, 1950, and was founded on the assertion that the letter of the 7th June, 1950, was written by him as Paramount Chief of the Asogli State and as Divisional Chief of Ho in that State upon a matter germane to the administration of Togoland and in the performance of his obligations to maintain peace, order and good government within the area.

The respondent’s counsel submitted that the letter in question related to state matters and that the first defendant and the three Government officials to whom he sent a copy of the letter were “Officers of State”, and he relied on the case of Chatterton v. Secretary of State for India (1), in which the Court of Appeal in England held that a communication relating to state matters made by one officer of state to another in the course of his official duty is absolutely privileged and cannot be made the subject of an action for libel.

In that case the statement complained of was made by the Secretary of State for India to the Parliamentary Under-Secretary of State for India in order to enable the latter to answer a question asked in the House of Commons with regard to the treatment of the plaintiff, an officer in the Indian Staff Corps, by the Indian Military Authorities and Government.

It seems to me that although that case is authority for the proposition that a document of state is one which cannot form the subject-matter of an action, because, on the ground of public policy, the Court cannot allow it to be given in evidence, or secondary evidence of it to be given, it is no authority for the proposition that a letter written in the circumstances here, objecting to the plaintiff’s election to the Native Authority, must be regarded as a “State matter” and as such absolutely privileged. Incidentally a copy of the letter was sent to the plaintiff by the defendant.

As Evatt, J., said in Gibbons v. Duggell (2):-

“Absolute immunity from the consequences of defamation is so serious a derogation from the citizen’s right to the State’s protection of his good name that its existence at all can only be conceded in those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civic protection, and any extension of the area of immunity must be viewed with the most jealous suspicion until its necessity is demonstrated.”

I am unable to agree that public policy demands that communications such as the one we have under consideration in the present case should be regarded as absolutely privileged, although I think appellant’s counsel was right in conceding that a prima facie case of qualified privilege had been established in regard to both of the letters.

Section 8(1) of Ordinance No. 7 of 1949, provides that:-

I am quite unable to see how it can reasonably be said that the two letters in question were written in the execution or intended execution of any power conferred by the Ordinance. It follows that, in my view, there is no substance in the point.

I now tum to the real point of substance, that is to say, whether or not the learned trial Judge erred in holding that the plaintiff had failed to prove malice. The appellant’s counsel drew attention to passages in the evidence which he urged show that the only real objection the defendants had to the plaintiff was because they considered that his election to the. Native Authority had been irregular. He argued that in those circumstances the use of such expressions as “treachery, selfishness, arrogance and seditious nature”, went far beyond the necessities of the occasion and could only have been used to hurt and injure the plaintiff. He also pointed out that the learned trial Judge had himself held the use of such expressions to be a “gross exaggeration”, and he submitted that the letters themselves contained evidence of malice.

It is clear from his judgment that the learned trial Judge gave very careful consideration to the question whether malice, as a matter of fact, had been proved, and, as I have already said, he came to the conclusion that it had not. Appellant’s counsel strongly urged that there being intrinsic evidence of malice, that is to say in the letters themselves, we are in as good a position to say whether or not malice had been proved as the trial Judge was. On the face of it this does appear to be so, but I think it must not be lost to sight that the trial Judge had the advantage of seeing and hearing the first defendant, who is clearly the prime mover in the matter, in the witness box, and he was subjected to a close cross-examination as to his motives in writing the letters.

In dealing with this aspect of the case the learned trial Judge said, inter alia:-

“I am satisfied that the defendants made the representations bona fide for the purpose of protecting their rights, and they had reason to believe that the plaintiff was wrongly interfering with the management of public affairs in the district.”

and further on in his judgment:-

“The mere fact that the language used is strong is not, in the absence of any indication that it was not used bona fide, evidence of malice.”

There can, I think, be no doubt that the trial Judge was assisted, in reaching this conclusion, by the fact that he had seen, and heard the evidence of, the first defendant and the other witnesses called at the trial, an advantage denied to us. I have given this question most careful and anxious consideration and have come to the conclusion that the judgment of the Court below should be upheld, as I am not prepared to say that the learned trial Judge was wrong in holding that malice had not been proved.

The fact that the trial Judge found the statements to be a “gross exaggeration” does not destroy the privilege. In this connection, a passage in the judgment of Lord Esher, M.R., in the case of Nevill v. Fine Arts and General Insurance Company (3) appears to me to be applicable to the present case. It reads as follows:-

“But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice. In none of the cases on the subject, so far as I know, has it been held that the privilege is taken away when there has been such an excessive statement, unless the jury has found that there was malice. I protest against the notion that a Judge has a right to say that, if the jury find that the statement is excessive, though they decline to find actual malice, the law infers it. If the law did so, it would often be inferring what is not true. A man may use excessive language and yet have no malice in his mind.”

For these reasons I would dismiss this appeal with costs, fixed at £30 15s. 0d.

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COUSSEY, J. A.

I concur.

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WINDSOR-AUBREY, J.

I concur.

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Appeals dismissed.

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