Division: IN THE HIGH COURT, CAPE COAST
Date: 31ST AUGUST, 1959.
Before: ADUMUA-BOSSMAN J.
JUDGMENT OF ADUMUA-BOSSMAN J.
(His lordship stated the history of the matter, and continued:—)
The absence of any evidence of the delivery of the defamatory air-letter to, or of its receipt by, the addressee, and the rather strong suspicion raised by the circumstantial evidence that it had somehow got into the hands of some unauthorised person in London, and by the latter posted back to the complainant in Accra, led me to ask for arguments whether there was sufficient evidence establishing a prima facie case of publication.
Regard must be had, inter alia, to the cases of:
(1) Sharp v. Skues ((1909) 25 T.L.R. 336);
(2) Huth v. Huth ([1915] 3 K.B. 32) and
(3) Powell v. Gelston ([1916] 2 K.B. 615).
Those three cases (the second, Huth v. Huth, being a decision of the English Court of Appeal) establish the proposition that the interception by an unauthorised third party of a letter containing matter defamatory of the addressee, does not constitute publication to that unauthorised third party, or to any other person to whom that unauthorised third party may publish the letter. As was observed by Lord Reading C.J. in Huth (supra) at p. 38:—
“It would be impossible successfully to contend . . . that if a person, in breach of his duty, were to open a letter, and there was no reason to expect that he would commit that breach of duty, the fact that he had opened it and read it would amount to publication by the person who sent it.”
Since the adjournment, however, I have looked into the matter further and have examined the authorities. In the result I have satisfied myself that the arguments which I invited are no longer necessary, and that the evidence available does disclose a prima facie case of publication. The principle of the three cases above referred to is explained in paragraph 62 of Vol. 24 of the Simonds edition of Halsbury, at p.32, as follows:-
“If a letter containing a libel intended for and addressed to the person libelled is wrongfully opened by a third party, there is no publication.”
In that passage, for our purpose, the emphasis should be placed on the words:—
“A libel intended for and addressed to the person libelled.”
The reason, of course, is because the addressing of defamatory or offensive matter concerning a person to himself does not constitute publication, so far as civil liability is concerned. As observed by
[p.289] of [1959] GLR 287
Lord Esher M. R. in Pullman & Anor v. Hill & Co. Ltd. ([1891]) 1 Q.B. 524 at p. 527):—
“What is the meaning of publication? The making known the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to him of whom it is written, there is no publication of it; for you cannot publish a libel of a man to himself.”
So also in Wennhak v. Morgan & Wife ((1888) 57 L.J. Q.B. 241) Huddleston B. said:
“To utter a statement to the person himself to whom it relates is no libel.”
In those circumstances, it becomes obvious that the unauthorised interception by a third party of matter defaming the addressee himself cannot constitute publication to that third party, as explained in paragraph 62 of Vol. 24 Halsbury p.32, referred to above.
It is otherwise, however, when defamatory matter concerning “A” is made available or put into circulation by “B” for reading by “C”. In our particular case the defamatory matter was posted in Ghana to an addressee in a London suburb for reading by him, and the question is whether that conduct on the part of the accused person constitutes sufficient publication in the light of the authorities.
The answer appears clearly to be in the affirmative. Mr. Clement Gatley in his work on “Libel and Slander” has put it as follows (3rd edn. p.101):
“It is not necessary for the plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves facts from which it can reasonably be inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case. Thus proof that a letter was posted is sufficient prima facie evidence of publication to the person to whom it was addressed.”
The question how far the posting of a letter constitutes publication of any defamatory matter in it was given full consideration in the case of R. v. Burdett ((1820) 4 B. & Ald. 95, at pages 126-127; 106 E.R. 873 at p.883). Best J. pronounced as follows:—
“But supposing it to have been sent by the post, my opinion is, that such a sending of it amounted to a publication . . . In the case of a Libel, publication is nothing more than doing the last act for the accomplishment of the mischief intended by it. The moment a man delivers a Libel from his hands his control over it is gone; he has shot his arrow and it does not depend upon him
[p.290] of [1959] GLR 287
whether it hits the mark or not. There is an end of the locus poenitentiae, his offence is complete, all that depends upon him is consummated . . . If the sending of a letter by the post be not a publication in the country from whence it is sent, how is a Libeller to be punished who sends his libel by the post to some foreign country for circulation?. . . But there is authority for saying that this is publication . . . In the case of the King v. Williams (2 Camp. 506) which was for sending a challenge in a letter, Lord Ellenborough said there was a publication in Middlesex by putting it into the Post Office there, with intent that it should be delivered at Windsor . . . This case is directly in point to prove that the putting of a letter into the post is a sufficient publication.”
There is also the subsequent case of Warren v. Warren ((1834)1 C. & M. R. 250; 149 E. R. 1073).The Headnote in that case states:—
“A letter containing a libel was proved to be in the handwriting of the defendant, to have been addressed to a party in Scotland, to have been received at the Post Office in Colchester from the Post Office at H. (both places in Essex) and to have been forwarded from Colchester to London to be forwarded thence to Scotland, and it was produced at the trial with the proper post marks and with the seal broken—Held—Sufficient prima facie evidence that it reached the person to whom it was addressed and of a publication to him.”
A verdict was found by the Jury for the plaintiff at the trial and a Rule for a new trial was obtained, against which cause was shewn, and the matter was argued before the Exchequer. Counsel for the defendant contended that
“The fact of a letter being written in Essex addressed to a person in Scotland is no proof that it reached the hands of the person to whom it was addressed.”
Counsel for the plaintiff, on the other hand, contended that “on the evidence produced at the trial, no reasonable doubt could exist that there was at least evidence of publication to go to the Jury. The handwriting of the defendant to the letter was proved, and the letter was produced bearing the proper post mark, addressed to a person in Scotland and with the seal broken.”
Park B. observed,
“Surely the production of a letter with the seal broken and with the post mark on it, is strong evidence that it was received by the person to whom it was addressed.”
And Alderson B. observed,
[p.291] of [1959] GLR 287
“At least it is prima facie evidence of that fact.”
Ultimately, Park B. gave the decision of the Court, on the particular point of publication, in these words :—
“If a letter is sent by the post it is prima facie proof, until the contrary be proved, that the party to whom it is addressed received it in due course.”
The rule for a new trial was therefore discharged, and the judgment at the trial was affirmed.
Warren v. Warren, which appears to be on all fours with the case with which we are concerned, was affirmed in the subsequent case of Shipley v. Todhunter ((1836) 7 C. & P.680; 173 E.R. 298).In the latter case, upon the question arising whether post marks upon two letters, the subject-matter of the action of libel, constituted prima facie evidence of publication, counsel for the plaintiff submitted as follows:—
“The point has been decided in the case of Warren v. Warren, in which it was held that the circumstance of a letter having the post mark, was prima facie evidence of publication.
Whereupon Tindal C.J. ruled as follows:—
“I think there was a similar decision on the Midland Circuit. I am of the opinion that the evidence is sufficient.”
The position, then, is that if one puts into the post a libellous letter concerning “A” and addressed to “B”, he runs the risk, even if the letter is unlawfully intercepted by “Z”, and in fact does not get into the hands of “B” for whom it is intended, of being held liable for having published the libel just the same. In the words of Best J. in R. v. Burdett (supra):—
“He has shot his arrow, and it does not depend upon him whether it hits the mark or not.”
Having satisfied myself, therefore, that there are authorities available, and clear, that the facts disclosed by the depositions do establish publication prima facie, the arguments called for are no longer necessary, and the trial will proceed.
