Division: IN THE HIGH COURT, KUMASI
Date: 8 JANUARY 1964
Before: DJABANOR J
JUDGMENT OF DJABANOR J
This is a claim by the plaintiff against the defendants for libel contained in a letter written by the defendants to the plaintiff’s employers – who acting upon the said letter dismissed the plaintiff from their employment. There is no doubt in my mind that the letter is defamatory. It is in the following terms:
“MOBIL OIL GHANA LIMITED
P. O. Box 450,
Accra,
May 16th, 1963.
Commonwealth Haulage Company,
P. O. Box 1993,
Accra.
Attention Mr. Fruoh
Dear Sir,
In one of our periodic checks for contamination of product, especially of motor spirit, a sample was removed from vehicle WE 5974 on 13th April 1963, against D/N 23508. A laboratory analysis of the product from each compartment of the truck indicates that there was definite contamination of the motor spirit with either gas oil or kerosene.
We believe the driver of this truck on the delivery in question was a man by the name of Mosi.
Mobil considers contamination to be very serious as the effect of such petrol has an adverse effect on our customers’ vehicles.
We have no alternative but to advise you that we will no longer load this vehicle or others chauffeured by the driver mentioned. We might add that should this driver be discovered on any vehicle transporting Mobil products, the delivery (product] will not be accepted and we shall bill C.H.C. for the entire load.
Should future examinations of vehicle compartments indicate a tampering of seals and contamination of product, we will be obliged to bill you for the difference in cost of fuel and to again refuse to admit your driver for loading.
We shall be pleased to send you a copy of the laboratory analysis if you wish to see it.
Very truly yours,
(Sgd.) J. V. ANELLO
Field Operations Supervisor.”
The plaintiff averted that the allegations contained in the letter are untrue, and that their publication to his employers was actuated by malice and exceeded the bounds of privilege to which the defendants were entitled.
In their defence the defendants admitted the publication of the letter but said that in fact (a) a sample was removed from the vehicle WE 5974 (the plaintiff’s vehicle) on 13 April 1963 against D/N 23508, (b) the driver of the said truck was a man called Mosi, (c) a laboratory analysis of the product from each compartment of the truck indicated that there was definite contamination of the motor spirit with either gas oil or kerosene, and (d) such contamination of petrol has an adverse effect on customers’ vehicles. The defendants therefore alleged that the facts complained of were true, and pleaded that the communication of the said letter was on a privileged occasion-having been made on a matter of common interest to the defendants and the said Commonwealth Haulage Company Ltd. – the plaintiff’s employers.
By the pleadings the onus lies upon the defendants to prove that the facts published were true, and also that the communication was privileged. The plaintiff will then prove malice on the part of the defendants. I will deal first with the question of qualified privilege.
I shall not attempt to hazard a new definite or description of a privileged occasion. The position is made very clear by a host of authorities. Parke B. in Toogood v. Spyring,1 speaking on privileged communications, said, “If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society.” In an earlier portion of the passage, however, he had said that the law considers such a publication as malicious unless it is fairly made by a person in discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned. Erle C. J. in Whiteley v. Adams laid down what are the tests in these words2:
“… if the circumstances bring the judge to the opinion that the communication was made in the discharge of some social or moral duty, or on the ground of an interest in the party making or receiving it, then, if the words pass in the honest belief on the part of the person writing or uttering them, he is bound to hold that the action fails.”
In Harrison v. Bush Lord Campbell adopting the submission of counsel before him described it in these words3:
“A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter…”
Blackburn J. in Cavis v. Snead4 said “. . . where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona fide and without malice does tell them it is a privileged communication.” These are not modern authorities, but in my view the modern authorities do not clarify the definition any better.
What are the facts by which the defendants seek to prove that they published the offending letter on a privileged occasion? According to the evidence, the defendants loaded two vehicles with special grade petrol at their Accra depot on 13 April 1963 – the plaintiff’s vehicle and another vehicle. The usual seal were affixed on to these vehicles before despatch to Kumasi. On arrival at Kumasi routine samples were taken from both these vehicles and sent to Accra for chemical analysis. The analysis showed that the petrol taken from the plaintiff’s vehicle was contaminated but not that from the other vehicle. The obvious conclusion arrived at by the defendants was that the plaintiff had tampered with the petrol, i.e. had irregularly removed some quantity of petrol and substituted a similar quantity of an inferior product. Accordingly, they wrote the letter complained of to the employers of the plaintiff, i.e. their haulage contractors.
The defendants are one of the big firms supplying petrol in this country. I know that there is keen competition in this field of commercial enterprise. It is obviously in their best interest that they keep their products of the highest quality. If their petrol stations were once found to have supplied contaminated petrol, all their stations throughout that district might suffer loss of sales for a considerable period. No motorist moreover would like to buy and use contaminated petrol in his vehicle. It is obviously in the interest of the public that any person suspected or found to be indulging in irregular practices whereby petrol may become contaminated be suitably dealt with. It is also only natural for one to refuse to allow his commercial products to be given in charge of one in whose hands the products do not appear to be safe. It seems to me also to be in the interest of the haulage company to know which of their servants are regarded by their consignors as a financial and a business risk. In my view the facts of this case as presented by the defendants, if accepted, constitute a good basis to ground a defence of qualified privilege. Is there any evidence of malice? There does not appear to be any at least
on the part of the defendants—none whatever. The plaintiff was not an employee of the defendants. It was however submitted that the language used was more than was reasonably necessary to enable the defendants to protect their interest or discharge the duty upon which their qualified privilege is founded.
It has long been established that this is not the law. In Spill v. Maule5 Cockburn C.J. and five judges held that the terms of the libel which are evidence of malice are not merely such as are beyond the necessities of the occasion, but such as are utterly beyond and disproportionate to the facts. Following this decision are the cases of Laughton v. Bishop of Sodor and Man6; Jenoure v. Delmege7; Nevill v. Fine Arts and General Insurance Co., Ltd.8 and Adam v. Ward,9 where Lord Atkinson observed:
“These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.”
In this case the defendants said in paragraph 4 of their letter:
“We have no alternative but to advise you that we will no longer load this vehicle or others chauffeured by the driver mentioned. We might add that should this driver be discovered on any vehicle transporting Mobil products, the delivery will not be accepted and we shall bill C.H.C. for the entire load.”
In my view the words, used here are not unreasonably necessary. The defendants are saying quite plainly that they have no trust in the plaintiff and that they cannot risk having their products transported by the plaintiff in the future. I do not think that they exceeded the bounds of their protection.
The last point I have to consider is whether or not the alleged facts are true. [His lordship then reviewed the evidence and continued:] In the result I find that the defendants have proved that they made the communication complained of on a privileged occasion and also that the facts as stated by them were true.
I agree that the plaintiff’s claim must fail, and it is accordingly dismissed. The defendants will have their costs assessed at 60 guineas.
DECISION
Action dismissed.
S. A. B.
