HIGH COURT
ABBAN J
CASES REFERRED TO
(1) Bardi v. Maurice (1954) 14 W.A.C.A. 414.
(2) Stuart v. Bell [1891] 2 Q.B. 341; 60 L.J.Q.B. 577; 64 L.T. 633; 39 W.R. 612; 7 T.L.R. 502, C.A.
(3) Adam v. Ward [1917] A.C. 309; 86 L.J.K.B. 849; 117 L.T. 34; 33 T.L.R. 277 H.L.
(4) Watt v. Longsdon [1930] 1 K.B. 130; 98 L.J.K.B. 711; 142 L.T. 4; 45 T.L.R. 619; 73 S.J. 544, C.A.
(5) Kine v. Sewell (1838) 3 M. & W. 297; 1 Horn & H. 83; 7 L.J. Ex. 92; 150 E.R. 1157.
(6) Force v. Warren (1864) 15 C.B.(N.S.) 806; 143 E.R. 1002.
(7) London Association for Protection of Trade v. Greenlands, Ltd. [1916] 2 A.C 15; 85 L.J.K.B. 698; 114 L.T. 434; 32 T.L.R. 281; 60 S.J. 272, H.L.
(8) Horrocks v. Lowe [1972] 1 W.L.R. 1625; 116 S.J. 946; [1972] 3 All E.R. 1098, C.A. affirmed [1974] 2 W.L.R. 282; 118 S.J. 149; [1974] 1 All E.R. 662, H.L.
(9) Royal Aquarium and Summer and Winter Garden Society v. Parkinson [1892] 1 Q.B. 431; [1891-94] All E.R. Rep. 429; 61 L.J.Q.B. 409; 66 L.T. 513; 56 J.P. 404; 40 W.R. 450; 8 T.L.R. 352, C.A.
(10) Bia v. Murray (1954) 14 W.A.C.A. 499.
NATURE OF PROCEEDINGS
ACTION to recover damages for libel. The facts are fully stated in the judgment.
COUNSEL
S. N. Tay for the plaintiff.
J. K. Ahenkorah for the defendant.
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JUDGMENT OF ABBAN J
The plaintiff in this action is seeking to recover from the defendant 010,000.00 as damages for libel. The alleged libel is contained in a letter written by the defendant and sent to the Dean of the Faculty of Agriculture, University of Ghana, Legon.
Both the plaintiff and the defendant were, at the material time, employees of the University of Ghana, and they were working in the Faculty of Agriculture. The said faculty, through its Crop Science Department, had established an agricultural research station at Kade. The plaintiff was posted to this station as an assistant farm manager. He was to supervise the work of the labourers and the junior members of staff employed at the research station. He was also responsible for the running and maintenance of the electric generators, vehicles and the canteen at the station.
In 1964, the defendant, who is a Polish national and a lecturer in agriculture, was put in charge of the research station as a senior research officer. Even though the plaintiff was responsible for the general management of the research station, the defendant was made responsible for the overall control of the station, and the plaintiff was made responsible to the Dean of the Faculty of Agriculture through the defendant.
The Dean of the Faculty of Agriculture in or about November 1968, appointed an auditor from Legon to investigate the affairs of the research station. The investigation, among other things, covered canteen accounts, sale of the produce of the research station and the building fund of a school erected at the research station for the children of the workers. The auditor went to the research station. He held an inquiry and took evidence from witnesses. He also examined and inspected the necessary books kept at the research station. After the investigation he sent his findings, in the form of a report, to the Dean. That report will, hereinafter, be referred to as the auditor’s report.
The auditor’s report contained very serious adverse findings against the plaintiff. The Dean of the Faculty of Agriculture therefore sent a copy of the said report to the plaintiff for his comments and explanation, if any. The plaintiff, in his evidence, said he sent to the Dean the written comments as contained in the letter, exhibit A; and since he did not hear anything from the Dean thereafter, he assumed that his written comments and explanation had been accepted by the Dean. But to his great surprise, in December 1969, he saw on his desk a pink document, exhibit B, dealing with matters which the plaintiff thought had been closed. That document was signed by the defendant.
It was alleged by the plaintiff that the document, exhibit B, contained defamatory statements about him. Exhibit B was supposed to embody the defendant’s comments on the written explanation which the plaintiff had earlier on sent to the Dean. That is, exhibit B was a letter which the defendant wrote to the Dean and in which the defendant made some comments on the written explanation which the plaintiff had already offered to explain away the adverse findings which the auditor’s report made against the plaintiff. It was further alleged by the plaintiff that the defendant “widely” circulated copies of the said letter to several persons, including,
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one Aveme. Aveme was a petrol seller at Kade, and had nothing to do with the university or with the agricultural research station. The plaintiff contended that the things the defendant wrote about the plaintiff in exhibit B were false to the knowledge of the defendant and have tarnished the plaintiff ‘s reputation.
Exhibit B was dated 8 May 1969, and it consisted of about nine pages. Each page had several paragraphs and each paragraph dealt with a different subject or item. From the opening sentence, it is clear that exhibit B was written by the defendant in reply to a letter of the Dean which was dated 14 February 1969. I will here quote the first paragraph of exhibit B as follows:
“University of Ghana,
Agric. Research Station,
P. O. Box 43,
Kade.
8 May 1968.
The Dean,
Faculty of Agriculture,
University of Ghana,
Legon.
Dear Prof. S. La-Anyane,
I have received your letter of 14 February 1969, in connection with the above subject. I am sorry for sending my comments late but the last records lent to Mr. Adapoe and needed for my statement reached me only on 14 April 1969.
I have studied carefully the contents of Mr. Adapoe’s reply with regard to the auditor’s report and other relevant documents and I have found it necessary to comment on the following items: . . .”
Mr. Adapoe mentioned in exhibit B is the plaintiff herein. After this opening paragraph, exhibit B went on to discuss and to comment on the various aspects of the auditor’s report and on the said written explanation given by the plaintiff. The portions of exhibit B which the plaintiff alleged to be defamatory of him could be found in paragraphs (13) to (14) of his statement of claim. I intend making certain remarks about those paragraphs in due course, and for that reason it is better that I set them out, in extenso, at this stage:
“(13). By the said document the defendant falsely and maliciously wrote and published of the plaintiff and of him in the way of his said occupation and employment and in relation to his conduct therein inter alia’ the following words:
‘At the time of the auditor’s investigation all the practices of Mr. Adapoe were not well known in detail; our investigation which has continued has brought the following facts:
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(a) The bulk of the commodity, i.e. flour, went to the wife of the assistant farm manager, Mr. Adapoe and Mr. Brew, the accounting assistant.
(b) Not more than ten to twelve bags have been sold to other individuals apart from the two main customers.
(c) Mr. Adapoe commits here an incredible falsification calculated for the deception of the university authorities.
(d) A shortage of 1,700 gallons [of diesel oil] was found already at the time of the auditor’s investigations.
(e) I still insist that according to DUTIES AND CONDITIONS OF SERVICE Mr. Adapoe is fully responsible for the shortage.
(f) After the auditor’s departure we have detected the station’s cocoa smuggling by Mr. S. R. Boateng, Field Assistant Grade I, who worked under direct and sole instructions of Mr. Adapoe.
(g) An authorised sale of timber has also been found. The station lost at least N0230.00. The case is not settled. Mr. Adapoe is evidently responsible.
(h) I am of the opinion that the permanent disorder of discipline, irresponsibility and present malpractices as well as lack of adherence to high principles are inconsistent with Mr. Adapoe’s function and there is no guarantee of non repetition, etc.’
(14) By the said words the defendant meant and was understood to mean that the plaintiff was unfit to retain his said occupation or employment and should be removed therefrom.
(15) The plaintiff has in consequence been seriously injured in his character, credit and reputation brought into public scandal, odium and contempt.”
The case of the defendant was that after the auditor had submitted his report on the agricultural research station, the Dean of the Faculty of agriculture wrote to him, the defendant, asking the defendant to comment on the said report and also on the written explanation which the plaintiff had already given for the adverse findings which the auditor made against the plaintiff. The Dean’s invitation to the defendant to comment on the auditor’s report and on the plaintiff s said written explanation could be found in exhibit 3. The auditor’s report was tendered as exhibit 4. The defendant averred that it was in pursuance of that request from the Dean that he wrote exhibit B, and that apart from the persons whose names appeared at the bottom of exhibit B, he did not send copies of exhibit B to any other person.
He contended that his said comments, as contained in exhibit B, were not defamatory of the plaintiff; and so far as he was concerned, the statements complained of were true. It was the defendant’s further contention that he wrote the alleged defamatory statements in good faith and without malice, and that he was in duty bound to make all those comments
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and to bring any malpractices he had discovered at the agricultural research station to the attention of the university authorities. In brief, the defence was summed up in paragraphs (10), (11), (13) and (14) of the statement of defence as follows:
“(10) The defendant does not admit that he published and circulated the report complained of freely or at all to diverse other people.
(11) Further if the report complained of was published and circulated to diverse other persons, which is not admitted, the defendant says that the same was done because those persons had interest in receiving the same.
(13) Having regard to paragraphs (4), (5), (6) and (11) hereof the defendant contends in answer to paragraphs (13) and (14) and, further in answer to paragraph (12), of the statement of claim that the report complained of was published on an occasion of qualified privilege.
(14) Further the defendant says that the specific statements complained of in paragraph (13) of the statement of claim are true in fact and in substance.”
I will first decide whether the statements complained of and which were set out in paragraph (13) of the statement of claim were reasonably capable of conveying a defamatory meaning. I must observe that the manner in which the plaintiff s said paragraph (13) was sub-divided and numbered gave the impression that those sub-paragraphs (a) to (h), followed each other in exhibit B. But that was not the case. All those sub-paragraphs were quoted out of their context, and I think it was most unfair. For example, the sentence, “At the time of the auditor’s investigation all the practices of Mr. Adapoe were not well known in detail,” was taken from page 7 of exhibit B, ignoring what was said before and after that sentence. (The emphasis is mine.) Paragraph (13) (a) could be found not on page 7 of exhibit B but on page 3. This particular statement was originally made by the auditor, and the defendant merely quoted it on the said page 3, and confirmed that it was true. The sentence numbered (13) (b) appeared in paragraph (4) of page 4, while (13) (c) appeared in paragraph (2) of the same page 4. The statement in (13) (d) was on page 7.
In my opinion, it is improper on the part of the plaintiff in a libel suit, like the present, to quote the offending statements out of their context and contend that they are defamatory of him. Because it may well be that if the statements complained of are set down in their proper context they may not be capable of conveying any defamatory meaning at all, while they may sound defamatory if read out of context.
However, I have tried to read the statements in their proper context in exhibit B, and I think from the facts already known to all those to whom the publication was made, some of the words or the expressions used by the defendant, and complained of by the plaintiff, were reasonably capable of being understood to convey the imputation suggested by the plaintiff. That is to say, any reasonable man or woman, reading those
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statements in their proper context and with knowledge of all the surrounding circumstances, would understand them to convey a defamatory meaning, and would definitely draw the inference that the plaintiff is unfit to remain in the service of the University of Ghana.
The defendant sought to avoid the consequence of his conduct by raising two defences, namely, justification and qualified privilege. I will consider first the plea of justification. To succeed on such a plea the defendant must justify the imputation which the plaintiff is complaining about: see Bardi v. Maurice (1954) 14 W.A.C.A. 414. Having regard to the evidence, it seems to me that what the defendant stated in exhibit B, including the offending paragraphs, was true. I will here deal with the allegations set out in paragraphs (13) (a)-(e) of the statement of claim. Those allegations concerned the flour and the diesel oil supplied to the agricultural research station by the University. One Mr. Brew, the accounting assistant at the research station, gave evidence for the plaintiff. In fact he was the plaintiff s star witness. Mr. Brew denied that there was ever a shortage of 1,700 gallons of diesel oil as stated in paragraph (13) (d) of the statement of claim.
I find that this witness was particularly involved in a “flour deal” at the research station. The bags of flour supplied to the station were to be distributed among the members of staff and the workers at the station. Yet when the flour arrived at the station, Mr. Brew sent some to his relative living in Kade town and who was not an employee of the station. The plaintiff also took considerable portion for his wife. Indeed, the plaintiff and Mr. Brew allocated a lion’s share of the flour to themselves, as contended by the defendant. The auditor’s report, exhibit 4, clearly supported this view. The plaintiff even refused to issue flour to some of the employees on grounds which I think were rather puerile.
The shortage of 1,700 gallons of diesel oil at the station was also true. The attention of the Dean was drawn to this unusual shortage long before the auditor went to the station to conduct his investigation. The Dean became perturbed about it and wrote to the plaintiff for an explanation. The relevant portion of the Dean’s letter, exhibit C, reads as follows:
“Comparing the real consumption and the statement on consumption in the power house sheets and books, there is a discrepancy of some 1,700 gallons over the 5 months’ period July-November 1968. Since you were directly responsible for supervision of the generating plant at Kade, you should furnish me with a report explaining the shortages. Please send this report to reach me by 20 December 1968.”
In his reply to the Dean’s letter, a portion of which has just been quoted above, the plaintiff did not specifically deny the said shortages. He only tried to put the blame for the shortages on Mr. Brew, the plaintiff s first witness, and on two other employees. The engine attendant, called Blankson-Eshun, who was the plaintiff s third witness, said there were no real shortages and that the alleged shortages were framed up by the defendant. In view of the auditor’s report, exhibit 4, and the Dean’s letter referred to (supra), I do not believe Blankson-Eshun and I reject his evidence as false.
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The allegation in respect of “cocoa smuggling” can be found on page 7 of exhibit B, and was referred to by the plaintiff in his paragraph (13)(f) of the statement of claim. There was overwhelming evidence that Mr. Boateng, mentioned in that statement, engaged in cocoa smuggling and was caught. He was arrested and charged with stealing and put before the district court. This is borne out by the police report, exhibit F, which was tendered by the plaintiff s second witness, Detective Sergeant Antwi. Antwi was, at the material time, stationed at Kade Police Station; and he compiled that report after he had investigated the affairs of the research station on the instructions of his superior officer.
It must be mentioned that the Dean requested the police investigation after the Dean had received the respective written comments of the plaintiff and the defendant on the auditor’s report. The findings of the police, as embodied in exhibit F, have convinced me that what the defendant said about the smuggling of cocoa by Mr. S. R. Boateng was also true.
As regards the allegations about “timber sales,” even though there was no evidence that the plaintiff “transacted timber business,” there was a finding in the police report which clearly indicated that the plaintiff engaged in a shady transaction involving the purchase and sale of some timber logs extracted from the agricultural research station. As a result, he was summoned by the Forestry Department to appear before the court “for felling timber without property mark.” I am therefore satisfied that a lot of irregularities took place at the agricultural research station with the knowledge, and in some cases with the tacit consent, of the plaintiff. Paragraph (5) of the police report, exhibit F, described the situation in the following words:
“From the foregoing circumstances, it could be inferred that there was a complete mismanagement of affairs at the agricultural research station which brought about the irregularities enunciated in your letter under reference.”
On the plaintiff s own evidence, it is clear that if anything went wrong at the station, so far as management was concerned, it was the plaintiff who had to be held responsible; and it seems to me that the plaintiff negligently managed the affairs of the research station, and that his own dubious and questionable conduct, coupled with lack of proper supervision, enabled some of the employees to indulge in anti-social practices at the station. In the circumstances, the opinion which the defendant formed of the plaintiff, as quoted in paragraph (13) (h) of the statement of claim, was correct.
It may be observed that after the present action had been instituted, the defendant’s contract with the University of Ghana expired and, he had to leave the country. Thus, by consent, the evidence of the defendant was taken immediately after the plaintiff had given his evidence-in-chief. The defendant left Ghana for good the day after his evidence had been taken and after the University of Ghana had offered substantial security on his behalf. Mr. Brew, the plaintiff s first witness, made a great effort to impress upon me that the contents of exhibit B were not true. But it is
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interesting to note that he was very sympathetic to the defendant’s case while the defendant was in the country. On Mr. Brew’s own showing, he went with the defendant to see the defendant’s lawyer about this case, and he was interviewed by the said lawyer.
He admitted that he never at any time disputed the truth of the statements made by the defendant, as contained in the letter, exhibit B. He also admitted that originally he was going to give evidence in favour of the defendant. Surprisingly, after the defendant had left the country, Mr. Brew somersaulted and went to the side of the plaintiff. The following is what Brew said under cross-examination:
“When the present case first started the defendant was in the country, and I, the defendant and other persons used to meet together and discuss this matter. I was meeting the defendant because the defendant had asked me to stand by as I might be wanted to give evidence for him. I agreed to give evidence for the defendant. As a result I was asked by the defendant to meet the defendant’s counsel and I did.
Q. When you met the defendant’s said counsel you did not tell that counsel that the report which the defendant had written was false in any way.
A. I did not say that the report was false.
Q. Were you attending court with the defendant when the case started?
A. Yes. Because I was going to give evidence for the defendant. I continued attending court with the defendant, until he left the country. It was after the defendant had left the country that the plaintiff then approached me to give evidence for him [plaintiff] and that is why I am now giving evidence for the plaintiff.”
(The emphasis is mine.)
I think Mr. Brew is a very inconsistent and sly person. He wants this court to believe that when the defendant was in Ghana the contents of the letter, exhibit B, were true. But they became false immediately after the defendant had left the country for good. I have no doubt in my mind that Mr. Brew tried, for reasons best known to himself, to assist the plaintiff, but his earlier conduct in this case, when the defendant was in the country, has portrayed him as a person whose word is far from the truth, and must therefore be taken with a pinch of salt. On the totality of the evidence, I have come to the conclusion that the contents of exhibit B were true, or substantially true, and gave the correct picture of the plaintiff s activities at the agricultural research station.
The other defence put up was that of qualified privilege. It was the contention of the plaintiff that apart from the addresses mentioned in exhibit B, the defendant also published the contents of the said exhibit B to one Aveme who had no connection whatsoever with the University of Ghana. Aveme, in his evidence, said he received a copy of exhibit B through his post office box at Kade, and he assumed that it was the defendant who posted it to him. Because the defendant had, on an earlier occasion, spoken to him (Aveme) about the plaintiff s misdeeds at the
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research station and about a certain report. Aveme tendered exhibit X, as the copy of exhibit B, which he received from the post.
It will be recalled that the court was informed that Aveme was so ill that he could not attend court to give his evidence; and as a result his evidence had to be taken on commission. But curiously, he kept on coming to court after his evidence had been so taken. One may therefore be tempted to ask about the interest which Aveme had in this case, to compel him to come to court, even though he was not feeling well, according to him, and even though his presence was not required by the court.
In my opinion, Aveme was the plaintiff s bosom friend; and I am not at all satisfied that he in fact received exhibit X, either from the defendant directly or through the post. He was merely brought into this case by his intimate friend, the plaintiff, to help the plaintiff by giving that type of evidence. There is one remarkable thing about exhibit X. It has on it certain interesting comments made in ink. For example, on page 1 of exhibit X, at the bottom the following statements were allegedly made by the defendant:
“M. K. Appah-Deficit of 0221.49 was discovered in September 1965. The reason of the deficit has not been explained by Mr. Adapoe.” By the side of those two sentences, there are comments written in blue ink and they read as follows: “ I am not to explain the reasons, Mr. Appah was responsible for the deficit and explained the reasons. Mr. Appah was queried by me.” Again at the top of page 72 of exhibit X, the names of Messrs. S. P. Appeaning and D. M. K. Adzakey were mentioned in connection with other deficits. Just by the side of those names, the following comments have been made, again, in blue ink: “Mr. S. P. Appeaning was queried by me and asked to refund the money. Mr. Adzakey was also queried by me and held responsible for the deficit.”
Several remarks or comments have been made in blue ink on the other pages of exhibit X. The substance or the nature of those comments suggests to me that they were not made by Aveme who was supposed to have been in possession of exhibit X; neither were they made by the defendant. They were made by the plaintiff; and as I have already found, exhibit X was never sent to Aveme by the defendant. It was one of the copies of exhibit B which, at all the material time, was in possession of the plaintiff, and the plaintiff gave it to Aveme to come and tender the same in evidence. In other words, it was the plaintiff himself who published the contents of exhibit X to Aveme and I do not, in the circumstances, accept the story of Aveme.
I therefore find that copies of exhibit B were not circulated or published to persons other than those whose names appeared in exhibit B as the addressees. I further find that all those said persons were persons who were not only senior members of the University of Ghana, but also persons who, in one way or the other, were having something to do, at the material time, with the running of the research programme at the agricultural research station. That is, they were persons who were entitled to know the manner in which things were being done at the research station and about things which were taking or had been taking place at the said station. The defendant, as a person entrusted with the overall control of the research
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station, was under a duty to report to those persons any irregularities mismanagement or misdemeanours which came to his knowledge in the course of performing his official duties; and those said persons also had official interest in receiving such a report.
In my view, any right minded person, in the position of the defendant, would have considered it as his bounden duty to communicate the matters, which the plaintiff complained of, to the university authorities. Indeed, I am inclined to believe that the contents of exhibit B must have greatly assisted the Dean of the Faculty of Agriculture in taking firm and decisive steps to prevent the re-occurrence of the irregularities and the malpractices which were then rampant at the research station. I therefore hold that since the contents of exhibit B were published to persons all of whom had legitimate official interest in the subject-matter, the occasion was privileged: see Stuart v. Bell [1891] 2 Q.B. 341 at p. 354, C.A. where Lopes L.J. said:
“The rule, I think, is this—that when the circumstances are such as to cast on the defendant the duty of making the communication to a third party, the occasion is privileged . . . The duty may be legal, social or moral.”
In Adam v. Ward [1917] A.C. 309 at p. 334, H.L. Lord Atkinson also observed:
“It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”
This statement of the law was accepted in the later case of Watt v. Longsdon [1930] 1 K.B. 130 per Scrutton L.J. at p. 147 and per Green L.J. at p. 151, C.A.
I am not unaware that the defendant gave a copy of exhibit B to the plaintiff s second witness, Detective Sergeant Antwi. I have already dealt, partly, with the evidence of this detective sergeant. As I said, he was at that time engaged in conducting a police investigation into crimes which were being committed indiscriminately at the research station. In pursuance of that objective he approached both the plaintiff and the defendant for information. The plaintiff gave “some vital documents” to the sergeant and the defendant also handed over to him a copy of exhibit B. The sergeant, in his evidence, said he found the information in exhibit B “relevant” to his investigation. In the circumstances, I am of the view that the publication to the plaintiff s second witness was also made on a privileged occasion. It is well established that where an inquiry is made of a person with a view to detecting a criminal offence, it is his duty to give such information as he may possess; and such information if given in good faith and without malice, as in the present case, will be privileged: see Kine v. Sewell (1838) 3 M. & W. 297. In that case Parke B. at p. 302 said:
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I cannot doubt that it is a perfectly privileged communication, if a party who is interested in discovering a wrongdoer, comes and makes inquiries, and a person in answer makes a discovery, or a bona fide communication which he knows, or believes, to be true, although it may possibly affect the character of a third person.”
See also Force v. Warren (1864) 15 C.B.(N.S.) 806, and London Association for Protection of Trade v. Greenlands, Ltd. [1916] A.C. 15 per Lord Parker at p. 42, H.L.
The plaintiff, however, contended that even if the defence of qualified privilege were available to the defendant, the defendant lost that privilege because he was actuated by malice in publishing those defamatory statements. I do not subscribe to this view. The contents of exhibit B, including the paragraphs complained of, as I have already found, were true. In any event, the defendant wrote the defamatory statements in good faith, and he honestly believed them to be true. So that in order to defeat the defence of qualified privilege it was for the plaintiff to prove express or personal malice.
Learned counsel for the plaintiff in his address contended that the plaintiff had been able to prove malice. Because the evidence, counsel submitted showed that the defendant was unreasonably prejudiced against the plaintiff; and this was due to the fact that some time before the defendant wrote exhibit B, the plaintiff and the defendant were “living on bad terms.” I agree with learned counsel that there was ample evidence on record which clearly indicated that at the time the defendant was writing exhibit B, he was at logger-heads with the plaintiff; and the parties were, in fact, not on speaking terms. It was therefore likely, in view of the strained relationship between them, that the defendant might have been prejudiced unreasonably against the plaintiff. Nevertheless, the honest belief which the defendant had in the truth of what he wrote on that privileged occasion was enough to exculpate him.
The defendant sincerely and honestly believed that what he wrote about the plaintiff in exhibit B was true; and the fact that he might have been unreasonably prejudiced against the plaintiff was not by itself evidence of express or personal malice which could destroy the defence of qualified privilege. The case of Horrocks v. Lowe [1972] 1 W.L.R. 1625, C.A., where the defence of qualified privilege came up for discussion is of particular interest. Both plaintiff and the defendant, in that case, were councillors or members of Bolton Town Council. The defendant, at the meeting of the said Town Council, made derogatory statements about the plaintiff. In an action for slander, it was found that the statements made by the defendant were defamatory of the plaintiff. The trial judge also found that the occasion was privileged, and that the defendant, Mr. Lowe, honestly believed that what he said was true. But he held that since there was “gross and unreasoning prejudice” on the part of the defendant, the defendant was guilty of express malice. The defendant appealed; and the Court of Appeal, unanimously reversed the trial judge and entered judgment for the defendant. Lord Denning M.R. at p. 1630 of his judgment said:
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“Malice is usually to be found when there is personal spite or ill will or when the defendant does not honestly believe what he says to be true. The judge did not find any of these. But he found that Mr. Lowe was actuated by gross and unreasoning prejudice and on this ground malice was established. In this respect I think the judge was misled as well he might be on circuit – by a passage in Gatley on Libel and Slander, 6th ed. (1967), paragraph 770: ‘There is a state of mind which will destroy privilege even though the defendant may have made the statement honestly believing it to be true, or, in fact, with an excess of honesty. If a man, through anger, or gross and unreasoning prejudice, has allowed his mind to get into such a state to become so obsessed – as to cast reckless aspersions on other people which but for such state of mind he could not have honestly believed to be true, the jury may properly find that he has abused the occasion, and in that sense has acted maliciously.’
I must say that, in my opinion, that passage is not correct. I find it difficult to reconcile it with paragraph 774, a little later, which says If the defendant honestly believed his statement to be true, he is not to be held malicious merely because such belief was not based on any reasonable grounds; or because he was hasty, credulous, or foolish in jumping to a conclusion, irrational, indiscreet, stupid, pig-headed or obstinate in his belief. ’ To that string of adjectives, I would add that he is not to be held malicious merely because he was angry or prejudiced, even unreasonably prejudiced, against the plaintiff, so long as he honestly believed what he said to be true. Such is the law as I have always understood it to be.”
(The emphasis is mine.)
The learned Master of the Rolls then referred to the judgment of Lord Esher M.R., in the case of Royal Aquarium and Summer and Winter Garden Society v. Parkinson [1892] 1 Q.B. 43 1, C.A.; and in distinguishing that case from Horrocks v. Lowe the learned Lord observed at p. 1631:
“I know that Lord Esher said earlier on the same page that gross and unreasoning prejudice’ would have the same effect; but this was, I think, a mistake. If once you bring unreasonableness into the test, you go far to destroy the principle. Lord Porter on this point drew a salutary warning in a later case to which Edmund Davies L.J. drew attention. It is Turner (orse. Robinson) v. Metro-Goldwyn Mayer Pictures Ltd. [1950] 1 All E.R. 449, 463.”
(The emphasis is mine.)
It must be noted that in Horrocks v. Lowe, Edmund Davies and Stephenson L.JJ. agreed with the views expressed by Lord Denning M.R. as set out supra. Incidentally, Horrocks v. Lowe went to the House of Lords, and recently the law Lords in their judgment reported in [1974] 2 W.L.R. 282 have unanimously upheld the decision of the Court of Appeal. The House of Lords emphasized that however prejudiced the trial judge thought Lowe to be, the crucial finding of Lowe’s belief in, the truth of
[p.340] of [1974] GLR 327
what he said on the privileged occasion entitled him to succeed in his defence of qualified privilege.
Consequently, I hold that the plaintiff herein has failed to prove the existence of malice or to prove that the defendant was actuated by malice. Thus, quite apart from the defence of justification which was clearly established, the defence of qualified privilege also gave complete protection to the defendant: see Bia v. Murray (1954) 14 W.A.C.A. 499.
In the circumstances, the action will be and is hereby dismissed, and judgment is entered for the defendant with costs assessed at 0450.00, inclusive.
DECISION
Action dismissed.
S.Y.B.-B.
