ATTITSOGBE v. HARLLEY [1972] 1 GLR 194
HIGH COURT, ACCRA
Date: 19 NOVEMBER 1971
BEFORE: HAYFRON-BENJAMIN J.
NATURE OF PROCEEDINGS
ACTION for damages for libel published at the instance of the defendant in his capacity as the
Inspector-General of the Police and Vice-Chairman of the erstwhile National Liberation Council. The
facts are fully set out in the judgment of Hayfron-Benjamin J.
COUNSEL
U. V. Campbell for the plaintiff. K. A. Sekyi, Principal State Attorney, for the defendant.
JUDGMENT OF HAYFRON BENJAMIN J.
This libel action arises out of a publication in a daily newspaper circulating in Ghana. The publication was at the instance of the defendant, then Inspector-General of Police and the Vice-Chairman of the National Liberation Council. The defendant later became a member of the Presidential Commission. It is alleged that the publication is defamatory of the plaintiff and further that the defendant in causing it to be published was actuated by express malice.
Both the plaintiff and the defendant have submitted that the defendant as a member of the National
Liberation Council and the Presidential Commission occupied in law the position of the President. From these premises the plaintiff contends that he was therefore immune from legal process and that is why the action was not brought earlier. The plaintiff pleads in paragraph (2) of his reply:
“that since defendant was Vice-Chairman of the National Liberation Council and subsequently
Vice-Chairman of the Presidential Commission and therefore unattainable by judicial process before 7 August 1969, the earliest date at which the plaintiff could have brought the action was 8 August 1969 when the defendant ceased to be so unattainable. And the plaintiff says that by virtue of article 36 (8) of the Constitution, 1969, this action is not statute-barred.”
Article 36 (8) of the Constitution provides that: [His lordship here read the provisions as set out in the headnote and continued:] I do not think any lengthy analysis is required to demonstrate the unsoundness of this submission. The National Liberation Council exercised the executive authority of the state, and in that sense performed the duties of the President. In all enactments, references to the President were to be read as references to the National Liberation Council. No individual member of the National Liberation Council was the President neither was any individual member of the Presidential Commission. It is argued that the Chairman or the Vice-Chairman of the National Liberation Council was authorised to sign decrees, etc. and when so signed was conclusive [p.197] of [1972] 1 GLR 194 evidence that it was made by the National Liberation Council. The fact that a managing director can sign a document binding on a limited liability company does not make the managing director the company. I am of the view that the defendant never was President and is not now the President of Ghana, and that the provisions of article 36 (8) of the Constitution do not apply.
The defendant’s contention that the action is barred by reason of section 2 (1) of the Public Officers Act, 1962 (Act 114), has to be considered. In paragraph (9) of the statement of defence the defendant pleads: “The defendant will contend that this action is barred by section 2 (1) of the Public Officers Act, 1962 (Act 114), by reason of the fact that being an action in respect of an act done by a public officer in the execution of his public duty, it was not commenced within three months of the publication complained of. ”It is not necessary here to consider how far the Public Officers Act, 1962, being part of the existing law should be modified or adapted to bring its provisions in conformity with the Constitution. The plaintiff has pleaded express malice and he contends that this plea if established by evidence would deprive the defendant of any protection he enjoys by virtue of the provisions of the Act. He does not claim by his pleadings that the Public Officers Act, 1962 (Act 114), is no longer valid. There is however no doubt that the defendant did the act in his capacity as the Inspector-General of Police and also as the Vice-Chairman of the National Liberation Council, and that in both capacities he was a public officer. Section 2 (1) provides: [His lordship here read the provisions as set in the headnote and continued:] These provisions are quite clear, and apart from fraud on the part of the public officer I do not think any circumstance, certainly not express malice, can exempt a plaintiff from commencing proceedings within the three months’ period. Fraud is likely to be unknown to the prospective plaintiff at the time the public officer performed the act, and the discovery or knowledge of the act itself might have been concealed by the fraud. In such cases it is reasonable to excuse the prospective plaintiff from the strict provisions of this Act. Express malice must by its very nature be known to the plaintiff. In this case it is clear from the plaintiff’s own pleading that he knew of both the publication and the alleged malice, but failed to take action because he thought the defendant was not amenable to judicial process. He has himself to blame.
The action is clearly statute-barred. The plaintiff has pleaded express malice and that plea if established by evidence would deprive the defendant of any protection he enjoys by virtue of the provisions of the Act. There is however no doubt that the defendant did the act in his capacity as the Inspector-General of Police and also as the Vice-Chairman of the National Liberation Council, and that in both capacities he was a public officer. The defendant has further pleaded in paragraph (10) of the statement of defence “that by virtue of the provisions of section 13 (3) of the Transitional Provisions (First Schedule) of the Constitution, 1969, this action is [p.198] of [1972] 1 GLR 194 not maintainable against the defendant and this honourable court has no jurisdiction to entertain this action.” I do not think that the act complained of relates to or was consequent upon:
(a) the overthrow of the Convention People’s Party Government;
(b) the suspension of the 1960 Constitution;
(c) the establishment of the National Liberation Council;
(d) the establishment of the 1969 Constitution; I am of the view that this section does not apply to this action. The last point which has not been taken on the pleadings, but which the court has itself taken is whether or not the said publication is not absolutely privileged. It is quite clear from paragraph (2) of the plaintiff’s reply and from the publication itself that the defendant caused the publication in his capacity as Vice-Chairman of the National Liberation Council. The National Liberation Council by virtue of the Proclamation assumed all the powers and consequently the rights and liabilities of the legislature under the suspended Constitution of 1960.
Paragraph 3 (1) of the Proclamation provides “Until such time as a new constitution is promulgated by the People of Ghana, the National Liberation Council shall have power for such purposes as they may think fit and in the National Interest to make and issue decrees which shall have force of law in Ghana. ”I am of the view that a publication emanating from the National Liberation Council being the supreme legislative body at the time is absolutely privileged. The publication complained of is however not the original emanating from the National Liberation Council, but an abstract of it in the Ghanaian Times. To the publication of any extract from or abstract of a paper emanating from the legislative body only a qualified privilege attaches, and the defendant must prove that he published such extract or abstract bona fide and without malice. If therefore the plaintiff had sued the Ghanaian Times, the Ghanaian Times could claim only qualified privilege as it published an abstract of the paper emanating from the National Liberation Council. However as far as the defendant is concerned his act consisted in publishing the National Liberation Council document to the Ghanaian Times and other publicity media in the country. The mere fact that the Ghanaian Times chose to publish an abstract of the document does not deprive the defendant of his defence of absolute privilege. I shall therefore dismiss the action. Section 2 (1) (c) of the Public Officers Act, 1962 (Act 114) provides: “Wherever in any such action [that is in respect of an act in pursuance of a public duty etc.] a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client.”
These provisions seem clear and mandatory in ordinary circumstances; I am however of the view that in the circumstances of this case I ought not to decree costs as between solicitor and client. The defendant from the pleadings was clearly not in the public service at the time of the [p.199] of [1972] 1 GLR 194 commencement of these proceedings. He was nevertheless represented by the Solicitor-General who entered appearance on his behalf and settled the pleadings. He was represented in court by a state attorney from the Attorney-General’s Office. I do not think it would be proper, despite the mandatory provisions of the section referred to above, to order costs as between solicitor and client. I am further not inclined to award costs even on the ordinary scale because, of the two grounds on which I dismissed the suit, one was taken up by the court itself, and the second was so technical as not to touch the merits of the case.
DECISION
Action dismissed.
S. A. B.
