HIGH COURT, SEKONDI
DATE: 20 OCTOBER 1967
BEFORE: ARCHER J.
CASES REFERRED TO
(1) Firth & Sons v. De las Rivas [1893] 1 Q.B. 768; 62 L.J.Q.B.403; 41 W.R. 493; 37 S.J. 456.
(2) London & India Docks Co. v. Thames Steam Tug & Lighterage Co. [1909] A.C. 15; 78 L.J.K.B.
90; 99 L.T. 590; 24 T.L.R. 834; 52 S.J. 713; 11 Asp.M.L.C. 162; 14 Com. Cas. 32, H.L.
(3) R. v. Wimbledon Justices; Ex parte Derwent [1953] 1 Q.B.380; [1953] 2 W.L.R. 350; [1953] 1 All E.R. 390; 117 J.P. 113; 97 S.J. 116; 51 L.G.R. 432, D.C.
NATURE OF PROCEEDINGS
APPLICATION for an order to set aside a writ of summons or the issue thereof for failure to obtain the Attorney-General’s fiat necessary for suing certain newspapers under N.L.C.D. 107. The facts[p.640] of [1967] GLR 638 are sufficiently stated in the ruling.
COUNSEL
A. A. Forster, State Attorney, for the applicants.
Respondent in person.
JUDGMENT OF ARCHER J.
This is an application by the defendants under Order 12, r. 24 and Order 70, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L. N. 140A), to set aside the writ of summons or alternatively service of the writ of summons issued by the plaintiff on the ground that the Attorney-General’s fiat was not obtained before the writ was issued as required by paragraph 1 of the Newspapers Decree, 1966 (N.L.C.D. 107). Before I consider the merits of the application I propose to deal with certain procedural points which have become glaring in this matter. Order 12, r. 24 provides: “A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorising such service.” Order 70, r. 2 also provides: “No application to set aside any proceeding for irregularity shall be allowed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.” I understand these two Orders and rules to mean that a defendant must make his application before he enters unconditional appearance or takes any fresh step after the irregularity has come to his notice. The behaviour of the defendants, before the present application was filed, bewilders my intellect. The plaintiff issued his writ of summons at this High Court in Sekondi on 28 August 1967 and it appears, from the affidavit filed by the bailiff entrusted with service of copy of the writ, that the defendants were served at Accra on 2 September 1967. On 23 September 1967, the defendants entered an appearance, which, from the face of the memorandum of appearance filed, seems to be unconditional. However in the notice of entry of appearance filed on the same 23 September 1967, the appearance is stated to be “under protest.” There is no indication that this notice and the earlier appearance were served on the plaintiff. On 28 September 1967, another appearance, this time expressly described as conditional was entered by the defendants with notice to the plaintiff. The appearances and the notices were entered by the Solicitor-General [p.641] of [1967] GLR 638
who is a member of the Attorney-General’s Department and it is difficult to know on what documents they rely as there appears to be duplication in entering appearance on behalf of the defendants. As the first appearance seemed to be unconditional, the entry itself was a fresh step after the Attorney-General’s Department had become aware of the irregularity and in the words of Order 70, r. 2, the application to set aside the writ, in such a case, should not be allowed. However I have observed that the first notice of entry of appearance which was not served on the plaintiff stated that the appearance was “under protest.”
The same protest was also repeated in the subsequent notice of entry of the conditional appearance which was served on the plaintiff. I am satisfied that where an entry of appearance is made under protest or ismade conditional, then such appearance is not a “fresh step” within Order 70, r. 2: see Firth & Sons v. De las Rivas [1893] 1 Q.B. 768. I have taken the trouble of making these observations as a warning to officers of the Attorney General’s Department that when they file papers in court, they should exercise some care in preparing and drafting their documents properly so as to avoid duplication in filing documents. Such duplication can cause not only confusion but naturally annoyance to the trial court.
I shall now deal with the defendants’ application. The plaintiff, by his writ of summons, claims N¢50,000.00 damages from the defendants, as printers, for libel contained in the Evening News issued on 1 June 1967 being an article headed “2,000 Rail Workers to Donate to Kotoka Trust Fund” at p. 5 of that issue which was printed or caused to be printed by the defendants. The defendants now seek to set aside the writ of summons or its service on them on the ground that the Attorney-General’s fiat was not obtained by the plaintiff under the Newspapers Decree, 1966 (N.L.C.D. 107). Paragraphs 1 and 2 of the said Decree provide: “1. Until such time as the National Liberation Council may determine, no action for defamation shall be brought against the owners, publishers or editors of the newspapers specified in paragraph 2 of this Decree without the fiat of the Attorney- General. 2. The newspapers referred to in the foregoing paragraph are newspapers owned or published by a corporation established under the Statutory Corporations Act, 1964, (Act 232) or newspapers wholly or partly subsidised from public funds or newspapers which are managed by a board or other body appointed by the National Liberation Council.” By their supplementary affidavit the defendants stated that they are the owners of the Evening News; that the board of management of [p.642] of [1967] GLR 638
the defendants as a limited liability company is also responsible for the management of the Evening News; that the present board of management was appointed by the National Liberation council by certain numbered letters, which unfortunately were not exhibited; and finally that the Evening News is partly financed from public funds by way of grants to the defendants and charged to the estimate of the Ministry of Information and Broadcasting. The plaintiff on the other hand maintains that he has sued the defendants as printers of the Evening News and not as owners or publishers and since the word “printers” has not been expressly enacted in paragraph 1 of N.L.C.D. 107, the Attorney-General’s fiat was not necessary before he issued his writ. In a further affidavit the plaintiff argued that the Evening News is not managed by any board or other body appointed by the N.L.C. Moreover there is no evidence that the defendants received grants from public funds and even if such grants were made, these could be regarded merely as loans to the defendants. Another argument put forward by the plaintiff was that the defendants were a commercial concern as printers. The plaintiff even ventured to challenge the validity of the appointment of board of management for the defendants as the provisions of the Companies Code, 1963 (Act 179), did not permit such appointments.
I wish to say now that as the plaintiff did not refer me specifically to the provisions in the Companies Code, I have not been able to consider that argument. In any case I do not think that argument can competently be considered by me in the absence of the statutory documents usually filed by the defendants with the Registrar of Companies. There is no doubt that the word “printers” is missing in paragraph 1 of the Decree in question. My task now is to find out whether this court can add that word to the paragraph so as to bring the plaintiff’s action within the word of the Decree. I must confess that certain rules of construction of statutes appear to provide some obstinacy in my way. One of these rules being that a casus omissus should not be created or supplied; in other words, a statute may not be extended to meet a case for which provision hasclearly and undoubtedly not been made. And in this respect I wish to quote from Craies on Statute Law (6th ed.), p. 70 where the words of Lord Atkinson in London & India Docks Co. v. Thames Steam Tug & Lighterage Co. [1909] A.C. 15 at p. 23 H.L. are quoted as follows: “The intention of the Legislature, however obvious it may be, must, no doubt, in the construction of statutes, be defeated where the language it has chosen to use compels to that result, but only where the language compels to it.”
[p.643] of [1967] GLR 638
So also Lord Goddard C.J. in R. v Wimbledon Justices; Ex parte Derwent [1953] 1 Q.B. 380 at p. 384 is quoted thus:
“although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there…”
In considering my ruling in this application I have found it necessary to refer to earlier N.L.C. Decrees so far as the defendants and their newspapers are concerned. It appears that on 27 May 1966 by N.L.C.D. 50 entitled National Liberation Council (Defamation by C.P.P. Newspapers, etc.) Decree, 1966, it was enacted that no action for defamation or injurious falsehood shall be brought against the Republic, certain statutory corporations and the Guinea Press Ltd. in respect of any statement published before 25 February 1966 whether the statement was published in any newspaper or in any other manner. The Evening News is one of the newspapers mentioned in Schedule I to the Decree, and it was further decreed that all pending actions shall abate. Editors and persons appointed to assist in the printing or publication were also granted this immunity from process of the court. It seems to me that when N.L.C.D. 50 was passed, it was intended to protect the Guinea Press Ltd. in all its capacities whether as printers or publishers, distributors, or vendors in respect of all defamatory matter published before 25 February 1966. By N.L.C.D. 107, it was provided that the Attorney-General’s fiat should be obtained before an action for defamation shall be brought against the owners, publishers or editors of newspapers owned or published by a corporation established under the Statutory Corporations Act, 1964 (Act 232), or newspapers wholly or partly subsidised from public funds or newspapers which are managed by a board or other body appointed by the National Liberation Council. Obviously N.L.C.D. 107 was passed to deal with defamatory matter published on or after 25 February 1966 because in such cases the earlier N.L.C.D. 50 does not apply. N.L.C.D. 107 does not extinguish rights but regulates the procedure to be followed in any attempt to assert or enforce those rights. N.L.C.D. 107 affects pending actions in respect of defamatory matter published on or after 25 February 1966. Such pending actions were automatically stayed unlesthe Attorney-General’s fiat was granted. Before I continue, there are certain notorious facts of which I would like to take judicial notice. Before 24 February 1966, the then Government of Ghana subsidised the Guinea Press Ltd. to enable it to keep the C.P.P. newspapers including the Evening News alive.
[p.644] of [1967] GLR 638
This notorious fact has even been confirmed by the Report of the Commission into Kwame Nkrumah’s Properties. The Report at p. 113 states, “The total amount of Public Funds pumped into the Guinea Press from its inception is therefore £1,960,446 7s. 8d.” It is also a notorious fact that immediately after the coup, the N.L.C. as the Government of Ghana took control of all the national papers including the Evening News. And if I may be permitted to refer to it, recently the Chairman of the N.L.C. warned these newspapers and remarked that “he who pays the piper must call the tune.” I do not think that formal proof of these notorious facts known generally in this country is necessary. There is also no doubt that publicfunds are still being pumped into the Guinea Press Ltd. by way of subsidies and that the board of management, whether it be de jure under the Companies Code or de facto under some other authority, is appointed by the N.L.C. I hold the view therefore that the Evening News is a newspaper owned by the Guinea Press Ltd., the defendants, who although not a corporation established under the Statutory Corporations Act, 1964 (Act 232), yet fall within the categories of newspapers being subsidised with public funds and whose management is appointed by the N.L.C. I shall now attempt to deal with the defendants as printers. In this respect I wish to quote a passage from the Report of the Committee on the Law of Defamation, 1948 in the United Kingdom at p. 29 which reads:
“Where defamatory matter is contained in a book, periodical, or newspaper, there are normally a series of publications each of which constitutes a separate tort. First, there is a publication by the author to the publisher, for which the author is solely liable. Secondly, there is the publication by the author and publisher jointly to the printer, for which the author and publisher are jointly liable. Thirdly, there is the publication of the printed work to the trade and the public, for which the author, publisher, and printer are jointly liable. It is normally in respect of this last publication that proceedings for libel are brought, although it is open to a plaintiff to sue in respect of the separate publications set out above.”
It seems to me therefore that where the publisher and printer are separate persons, then it is possible to have two defendants jointly and severally sued in respect of the same tort. But where the publisher is the same as the printer, it is enough to sue one defendant. In the present application before me, there is no doubt that the defendants, Guinea Press Ltd., are not only owners but also printers and publishers. It follows then, that if N.L.C.D. 107 had not been enacted,
[p.645] of [1967] GLR 638
the Guinea Press Ltd. would have been sued as one defendant being at the same time publisher and printer with one liability. In my view the distinction between publisher and printer assumes importance where the publisher is a body or person separate from the printer because in such a case it is necessary to sue two defendants jointly. If paragraph 1 of N.L.C.D. 107 were to be read in isolation, then I think there would have been very great force in the plaintiff’s argument that as the word “printer” is not mentioned in that paragraph, the fiat of the Attorney-General is not necessary as a condition precedent to taking an action for defamation. I think paragraphs 1 and 2 of the Decree must be read together to discover the ambit of paragraph 1. There is no doubt that when one takes an action for defamation, the purpose of the action is not to enable lawyers to exhibit their forensic skills or to prove their styles of advocacy. The purpose of suing in defamation is to claim damages and indeed substantial damages to compensate the injury done to one’s reputation. It is obvious that on account of the substantial sums perhaps which might be claimed from public funds as damages for defamatory matter published by the former C.P.P. newspapers and other literature, N.L.C.D. 50 was enacted to save the government from any financial embarrassment. It was with the same aim and spirit that N.L.C.D. 107 was passed to give the Attorney-General a chance of investigating such defamatory publications and if possible to settle such actions out of court thereby saving public funds. Hence the fiat of the Attorney-General was made necessary. In my view, the words “owners” and “publishers” should not be given a restricted meaning but a wider meaning in order not to defeat the purposes of N.L.C.D. 107. The word “owners” in paragraph 1 has a very wide meaning. Indeed it is capable of embracing publisher and printer. But these words are not exhaustive. The Decree is meant to afford some initial protection to such organisations as the State Publishing Corporation, the Graphic Corporation, both of which are established under he Statutory Corporations Act, 1964 (Act 232), and also the Guinea Press Ltd., an organisation subsidised from public funds and whose board of management is appointed by the N.L.C. It is immaterial whether they are described merely as owners,publishers or printers. They happen to possess all the three attributes at the same time and the initial protection applies whether they be sued as owners, publishers or printers. I am aware that by construing paragraph 1 in the manner I have done, I may be accused of having wrested the language of the Decree to avoid an obvious mischief contrary to the casus omissus rule 1 earlier cited. But I am fortified by two passages in Maxwell on Interpretation of Statutes (11th ed.), pp. 109-110:
[p.646] of [1967] GLR 638
“The office of the judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief. To carry out effectually the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined … “Whenever it can be shown that the acts of the parties are adopted for the purpose of effecting a thing which is prohibited, and the thing prohibited is in consequence effected, the parties have done that which they have purposely caused, though they may have done it indirectly. When the thing done is substantially that which was prohibited, it falls within the Act, simply because according to the true construction of the statute, it is the thing’ thereby prohibited. Whenever courts see such attempts at concealment, ‘they brush away the cobweb varnish,’ and show the transaction in its true light. They see things as ordinary men do, and so see through them. Whatever might be the form or colour of the transaction, the law looks to the substance.”
All the principles I have read in the above quoted passages are supported by very weighty authorities. Briefly, the effect of N.L.C.D. 107 is that no action for defamation shall be taken against the “Guinea Press Ltd.” the defendants, unless the Attorney-General’s fiat is obtained. Whether the “Guinea Press Ltd.” are sued as owners, publishers or printers is of secondary importance. Accordingly I rule that the Attorney-General’s fiat should have been obtained before the plaintiff issued his writ and the mere fact that the defendants have been sued as printers does not obviate the necessity of seeking the fiat. Accordingly the service of the writ on the defendants is hereby set aside. As paragraph 1 of N.L.C.D. 107 stipulates that “no action shall be brought” unless the fiat is issued, it follows that in the absence of the fiat, no action should have been brought. The issue of the writ of summons constitutes the bringing of an action and accordingly the writ of summons issued by the plaintiff is also hereby set aside as null and void. Finally I wish to express my admiration for the plaintiff who appeared in person for his ingenuity in this matter. This reminds me of what happened in England when the Street Offences Act, 1959 (7 & 8 Eliz. 2, c. 57) was passed. A very clever solicitor advised a group of prostitutes that the underground railway platform was not a street within the meaning of the Act. The prostitutes therefore invaded the platforms of the tube stations underground lawfully with their wares. Parliament had to add “or public place.” I am satisfied that if N.L.C.D. 107 had been drafted with the same clarity
[p.647] of [1967] GLR 638
and precision as N.L.C.D. 50, the plaintiff would not have been tempted to issue his writ without the flat. Since the drafting was done by the Attorney-General’s office now appearing for the defendants, I am satisfied they are fully responsible for luring the plaintiff into this proceeding. Accordingly, I order that in view of the confusion the defendants’ solicitors created by duplicating their appearance, and their responsibility in rendering the construction of N.L.C.D. 107 difficult, the defendants’ solicitors should not be entitled to any costs. Each party shall therefore bear his or their costs in this action which is hereby struck out with liberty.
DECISION
Action struck out with liberty to re-apply.
K.S.N.D.
