EJURA v. LIMAN AND OTHERS [1966] GLR 683

Division: HIGH COURT, TAMALE

Date: 26 OCTOBER 1966

Before: ANNAN J.

CASES REFERRED TO

(1) Aga Khan v. The Times Publishing Co., Ltd. [1924] 1 K.B. 675; 93 L.J.K.B. 361; 130 L.T. 746; 40 T.L.R. 299, C.A.

(2) Bruce v. Odhams Press Ltd. [1936] 1 K.B. 697; [1936] 1 All E.R. 287; 105 L.J.K.B. 318; 52 T.L.R. 224; 154 L.T. 423; 80 S.J. 144, C.A.

(3) Digby v. The Financial News, Ltd. [1907] 1 K.B. 502; 76 L.J.K.B. 321; 96 L.T. 172; 23 T.L.R. 117; 51 S.J. 98, C.A.

(4) Simmonds v. Dunne (1871) Ir.R. 5 C.L. 358.

NATURE OF PROCEEDINGS

APPLICATION for further and better particulars of defences to an action. The facts are sufficiently stated in the ruling.

COUNSEL

E. O. Appiah for the plaintiff.

Harold Darkoh for the defendants.

JUDGMENT OF ANNAN J.

The claim of the plaintiff,

“is for ¢100,000.00 damages against the defendants jointly and severally for libel contained in a letter dated 21 June 1965 written and signed by the defendants and each of them and addressed and sent to the Regional Commissioner (Northern Region) Tamale,”

[p.685] of [1966] GLR 683 and other named persons.

In his statement of claim the plaintiff set out the letter he relied on as a schedule. The letter was set out in full and it runs to six paragraphs. The letter is stated to be about “Malam Ejura’s behaviour towards Moslems in Northern Ghana” and its opening sentence reads as follows:

“We would like to point out to you that the peace which had existed among Moslems in Tamale in particular and in both the Northern and Upper Regions of Ghana has been badly damaged by the imposition of Malam Ejura as Chairman of the Northern and Upper Regions Muslim Council against our consent.” The writers of the letter then went on to give reasons for this opening statement in eight sections of paragraph 1 of the letter and in the main relied on allegations that the plaintiff had on certain occasions sent his boys to disrupt meetings of Moslems and to commit acts of assault and unlawful harm against other Moslems.

In their defence the defendants admitted writing the letter set out in the schedule to the statement of claim but denied that “the words contained in the said letter were legally published.” No particulars were given by the defendants of the facts relied on by them to support the defence that there was no legal publication. Again the defendants pleaded that even if the words complained of were published by them the words are true in substance and in fact, a plea of justification. The defendants gave certain particulars of this defence and these appear in paragraph (4) (a) to (e) of the defence.

These are:

“(4) (a) The plaintiff denies that ‘Wiridi’ is an essential part of Moslem worship.

(b) In pursuance of his opposition to the performance of ‘Wiridi’ the plaintiff has on a number of occasions sent his followers to disrupt meetings summoned by persons who practise ‘Wiridi.’

(c) To assert his authority as a so-called Chairman of the Northern Region Moslem Council the plaintiff has on a number of occasions instructed his boys to disrupt meetings of Moslems who have not obtained permission from him to conduct such a meeting.

(d) It is obligatory on all Moslems to attend Friday services at the mosque. It is the practice that failure to attend Friday services at a mosque is tantamount to a renunciation of faith.

(e) The plaintiff was not appointed chairman as is the custom at a meeting of the Moslems in the North. Some time in 1963

[p.686] of [1966] GLR 683 the National Adviser, Ghana Moslem Council, communicated to the Moslems at Tamale that he had appointed Malam Ejura as the Chairman of the Moslem Council in the Northern Region.”

The defendants further relied on what is known as the rolled-up plea—justification and fair comment and they again relied on particulars (4) (a) to (e) set out earlier.

Finally the defendants pleaded qualified privilege based on common interest in the subject-matter of the publication and alternatively on a legal, social and or moral duty to publish.

In his application for particulars, argued under Order 19, rr. 6, 7 and 8 and 23A, of the Supreme [High] Court (Civil Procedure) Rules, 1954,1 the plaintiff asked for particulars of the defences of absence of legal publication, justification, fair comment and privilege.

Counsel for the plaintiff referred me to several judicial decisions on the point and to statements of principle in the textbooks. In the light of these authorities the position seems to me to be that a party is entitled to an order for particulars where the other party has failed to give any or sufficient particulars in support of his pleadings. The object of the application is to enable the applicant to know precisely what case his opponent is going to make at the trial and to prepare accordingly to meet that case. Again the issues for trial will be strictly but fairly limited to the matters specified in the particulars and the opponent may not be allowed at the trial to go into any matters not fairly included in the particulars. Again a plaintiff is entitled to ask for particulars of the precise sense in which the defendant intends to justify the words complained of. In considering the application for particulars the court is careful to see that the demand for particulars is not vexatious or oppressive and will not grant it if its purpose is to enable the plaintiff to obtain disclosure in advance of the defendant’s evidence. As was said in the case of Aga Khan v. The Times Publishing Co., Ltd.2 by Bankes L.J.:

“[I]t is an accepted rule that a party is entitled to an order for particulars only for the purpose of ascertaining the nature of his opponent’s case that he has to meet, and not for the purpose of ascertaining the evidence by which his opponent proposes to prove it.”

Again the law seems to me to be that where an imputation against the plaintiff is general in terms, for example, that the plaintiff is a swindler or an imposter or a thief, a plea of justification by the defendant that the words are true in substance and in fact, that is, a plea of justification in general form, is not enough and on the plaintiff’s [p.687] of [1966] GLR 683 application the court will order particulars. Where however the words complained of amount to direct charges of specific acts the plea of justification may be in general form. It is evident therefore that the mode in which justification is pleaded depends in great measure on the nature of the libel: see generally Gatley, Libel and Slander (5th ed.), p. 491 et seq. and Bullen and Leake, Precedents on Pleadings (11th ed.), p. 1052 et seq.

Again a defendant should be ordered upon an application made by the plaintiff to give particulars of circumstances creating privilege and also of the matters of fact upon which a plea of fair comment is based and with regard to the rolled-up plea the position is governed by Order 19, r. 23A which requires the defendant to give particulars stating which of the words complained of are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. Turning now to the plaintiff’s application it seems quite clear to me that the first request of the plaintiff for particulars of the denial of publication must be granted. The defendants have admitted writing the letter but have denied what they term “legal publication.” As the defence now stands the plaintiff does not and cannot know in what respect there was no “legal publication.” Was the letter not sent at all or was it sent only to the plaintiff himself and to no one else? I think that the defendants ought to give particulars of the facts they rely on to assert that there was no legal publication and I order accordingly that they should deliver these particulars to the plaintiff.

With regard to the second and third requests of the plaintiff for particulars of dates and places and other circumstances to identify the meetings and occurrences mentioned in the defence, the matter is not free from some measure of difficulty. These requests seem to me to come very close to what Scott L.J. described in such vivid and masterful language in Bruce v. Odhams Press, Ltd.3 as “cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is a zone of doubt which we call dusk.”

It is true that the particulars stated in paragraph (4) (a) to (e) of the defence are rather general but then had not the defendants made direct charges of specific acts in the letter which is the basis of the action? It seems to me that the charges made in the letter do consist of specific charges and do not merely amount to imputations on the plaintiff’s general character or of general terms of reproach or condemnation, at any rate as far as paragraph 1 (i) to (viii) go. Speaking of an application by a defendant for particulars of a plaintiff’s claim.

[p.688] of [1966] GLR 683

Scott L.J. in the case cited above had this to say4:

“Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial.” (The emphasis is mine.)

What the plaintiff is asking for are particulars of dates and places and other circumstances to identify the meetings and other occasions. Upon consideration of the matters set out in paragraph 1 (i) to (viii) of the letter admittedly written by the defendants it seems to me that it contains sufficient particulars necessary to identify the occasions mentioned in them in respect of dates, places and other circumstances. In my opinion to order further particulars would amount to compelling the defendant to disclose evidence and such an order would certainly cross the “dividing line” and find itself well beyond the dusk and into the darkness of the night. As I said earlier this aspect of the plaintiff’s application has given me a fair measure of difficulty but in the end I am satisfied that those parts of the application ought not to be granted and I accordingly dismiss them.

With regard to the last three requests of the plaintiff it is clear these must be granted and I accordingly order that the defendants should deliver particulars to the plaintiff of the rolled-up plea set out in paragraph (5) of the defence in terms of the third and fourth requests for particulars in the plaintiff’s application. I order further that the defendants should deliver particulars of the facts and matters relied on by them in support of their defence set out in paragraph (8) that they were under a legal, social or moral duty to publish the words complained of and that the persons to whom the words were published had a like duty to receive them: see generally Digby v. The Financial News, Ltd.5 and Simmonds v. Dunne6 cited in Bullen and Leake at pp. 1050-1055.

I order that the defendants should deliver all these particulars within 21 days from today and that the plaintiff deliver his reply within seven days after delivery of the particulars. I order further that in default of delivery of the particulars ordered to be delivered by the defendants, they be precluded from giving evidence in support of the pleadings set out in paragraphs (3), (5) and (8) of their defence and these should stand struck out.

With regard to the issue of costs counsel for the plaintiff assured me that he did send to the counsel for the defendants a letter for

[p.689] of [1966] GLR 683 particulars in terms of Order 19, r. 8 and he has asked for the costs of this application. Counsel further assured me that he never received a reply to his letter and mentioned no particulars have been filed by the defendants in this court. I order that the costs of this application be paid by the defendants in any event and fix them at fifteen cedis.

DECISION

Application partly granted.

E. D. K.