WACHTER vs. HARLLEY [1968] GLR 1069

CASES REFERRED TO

(1) Rubber Improvement Ltd v. Daily Telegraph Ltd.; Same v. Associated Newspapers [1964] A.C.

234; [1963] 2 W.L.R. 1063; 107 S.J. 356; sub nom. Lewis v. Daily Telegraph; Same v. Associated Newspapers [1963] 2 All E.R. 151, H.L.

(2) Jones v. Jones [1916] 2 A.C. 481; 85 L.J.K.B. 1519; 115 L.T. 432; 32 T.L.R. 705; 61 S.J. 8, H.L.

(3) Machado v. Fontes [1897] 2 Q.B. 231; 66 L.J.Q.B. 542; 76 L.T. 588; 45 W.R. 565; 13 T.L.R. 407;

41 S.J. 507; 8 R. 740, C.A.

(4) Boys v. Chaplin [1968] 2 Q.B. 1; [1968] 2 W.L.R. 328; [1968] 1 All E.R. 283; 111 S.J. 968, C.A.

[p.1071] of [1968] GLR 1069

NATURE OF PROCEEDINGS

APPLICATION for the dismissal of the plaintiff’s action for damages for slander on the ground that the writ disclosed no cause of action.

The facts are fully set out in the ruling.

COUNSEL

J. B. Quashie-Idun for the applicant.

K. Narayan for the respondent.

JUDGMENT OF CHARLES CRABBE J.

The application now before this court is made under rules 2 and 3 of Order 25 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The defendant-applicant (hereafter referred to as the defendant) is seeking an order to dismiss the plaintiff’s action herein by reason of the fact that it discloses no reasonable cause of action and is an abuse of the process of the court on the following grounds:

“(1) That the words contained in the first sentence of the words complained of: (a) are under Ghanaian law not actionable per se without proof of special damage, which is not alleged in the statement of claim, or (b) are in any case incapable both under Ghanaian law and under Swiss law of bearing the meanings relied upon in the statement of claim, namely, that the plaintiff is a man without morals, and that he is unfit for the various offices specified in paragraph (9) of the statement of claim, or both.

(2) That the words contained in the second and third sentences of the words complained of: (a) are incapable of any defamatory meaning under Ghanaian law; or (b) could not constitute a criminal offence and therefore cannot be justifiable under the law of Switzerland; or (c) are in any event incapable both under Ghanaian law and under Swiss law of bearing the meanings relied upon in the statement of claim that the plaintiff carries on the business of an illicit diamond dealer with one Adolf Pluss, or that he is unfit for the various offices specified in paragraph (9) of the statement of claim.”

Counsel for the defendant contended that the plaintiff’s claim should be dismissed because it discloses no cause of action. The action of the plaintiff was in slander and the words complained of were set out in paragraph (4) of the statement of claim attached to the summons. The words complained of could safely be divided into two parts, contended counsel for the defendant, for the purposes of the application before the court.

[p.1072] of [1968] GLR 1069

The first part concerned the Vice-Chairman of the National Liberation Council, Mr. Harlley, that he spent the night with his girl friend. This distinction was being made by counsel for the defendant because in his view the second sentence would not be defamatory by any stretch of the imagination, and he urged the court to ignore those words. The second leg was constituted by the words, “Perhaps, John Harlley will go to supervise his diamond business in England with his friend Adolf Pluss.” Counsel referred the court to Rubber Improvement Ltd. v. Daily Telegraph Ltd. [1964] A.C. 234 at p. 277, H. L. to the judgment of Lord Devlin, and contended that the meaning of the words complained of must be looked at as pleaded and in any innuendoes which have been pleaded. He was of the view that those words could not mean that the plaintiff was a man without morals or that he was incapable of holding his public office as alleged in paragraph (9) of the statement of claim. He further cited Jones v. Jones [1916] 2 A.C. 481, H.L. as authority for the proposition that in a case of slander one must allege and prove special damage unless the words spoken are actionable per se.

In this case, contended counsel for the defendant, there was no allegation that the words were actionable per se. The words must be spoken of the plaintiff qua plaintiff in respect of his position which was complained of. He therefore submitted that this court should hold that the first part of the words complained of disclosed no cause of action either by the writ or in the statement of claim and that the words could not affect the plaintiff in his calling or profession as alleged in paragraph (9) of the statement of claim.

On the third sentence which formed the second part of the submission of counsel for the defendant, counsel contended that the words were completely incapable of a defamatory meaning, again on the authority of Rubber Improvement Ltd. v. Daily Telegraph (supra). The words complained of were not disparaging in any way, given the ordinary meaning of the words, and he therefore submitted that the words which were alleged to have been spoken did not support the innuendo that the plaintiff was indulging in any illicit diamond dealings.

Counsel contended that the word “illicit” had been introduced. But then the actual words spoken did not support the innuendo which was being placed upon those words. The court was being asked, contended counsel, to consider the words as meaning that there was an illicit diamond business and that it was not a legitimate assertion to make, in that the word used were capable of being understood. The words did not form a proverb which would require further explanation. If there was anything vague about the words then the plaintiff could ask what he was asking. Counsel submitted finally

[p.1073] of [1968] GLR 1069 that this court should give to the words complained of their ordinary and natural meaning to see if they were disparaging and ignore the innuendo which had been pleaded.

The question of jurisdiction was then raised. Counsel for the defendant contended that paragraph (3) of the statement of claim alleged that the words complained of were spoken in Basel in Switzerland. That meant that the tort was committed in Switzerland. Once it had been alleged that the tort complained of was committed outside this country then action could not be maintained in the courts in Ghana unless it was established that the words were not justifiable in Switzerland. Counsel for the defendant contended that the case of Machado v. Fontes [1897] 2 Q.B. 231, C.A. was a discredited authority. He maintained that it would be inequitable that the plaintiff could, by the mere fact of the defendant appearing in Ghana, sue him and obtain judgment when in Switzerland where the tort took place he could not have got that judgment. If, however, the court intended to decide the issue on Machado v. Fontes (supra) then the court should look at what the Swiss law was on the point and then consider the affidavit sworn by a legal practitioner in Switzerland supporting the arguments of the defendant.

The first contention of counsel for the plaintiff was that the application before the court should have been brought under Order 25, r. 4 and not under rules 2 and 3 of that Order. That, however, was a technical point on which he did not seek to rely. He thought that the division of the words into three separate distinct parts by counsel for the defendant was merely for his own convenience. In his view, the court should look at all the circumstances and all the words spoken in order to arrive at the meaning of the words, and also in awarding damages. In libel there was not much difficulty. In slander the complaint was against spoken words and therefore this court should look at the whole of the words used and should not dissect them as had been urged upon the court. In his view the rule in Jones v. Jones (supra) was qualified by the principle that if the words complained of touch the calling of the plaintiff then the words would be actionable. It was the case for the plaintiff that the words spoken touch the plaintiff in his calling.

Counsel for the plaintiff contended that the court was entitled to hear evidence on the way and manner in which the words were spoken and it should be assumed that if a reference was made to an officer then the speaker would be speaking of that person, in the instant case, as the vice-chairman, depending on the tone and manner in which the words were spoken and it would not be actionable per se. To him that constituted an attack on the person in his office.

[p.1074] of [1968] GLR 1069

In the view of counsel for the plaintiff, counsel for the defendant was asking the court to look at the words in their ordinary and natural meaning which the court should not do, for an innuendo had been pleaded and the court was entitled to look at the hidden meaning or the extended meaning. Counsel for the plaintiff then referred to rule 23A of Order 19 of L.N. 140A, which deals with libel and slander, and contended that it did not apply in this case.

The innuendo pleaded here was that if extrinsic matters were taken into consideration it would be seen that the plaintiff was being accused of not being a fit person to hold the office he was holding: the office he was holding was one in respect of which the holder was not allowed to do any type of business if he were holding that office. In his view the cases of Machado v. Fontes (supra) and Boys v. Chaplin [1968] 2 Q.B. 1, C.A. supported the case of the plaintiff.

It was the contention of the plaintiff that the tort was actionable in Switzerland and therefore if there was no agreement on the affidavits sworn to by the experts in Switzerland, then the matters on which there was disagreement were matters in issue. He argued that the experts were agreed on the translation into English of the relevant Swiss law on the point. He therefore asked the court to dismiss the application, for the writ and the statement of claim disclosed no cause of action.

There does not appear to be any doubt that the application before this court is one that ought to have been brought under rule 4 of Order 25, for by the words of the motion for the dismissal of the plaintiff’s claim, the defendant is seeking an order to dismiss the plaintiff’s action by reason of the fact that it discloses no reasonable cause of action and is an abuse of the process of the court.

This point on the appropriate rule, raised by counsel for the plaintiff, was not seriously challenged and indeed counsel did say that he was not relying on that technical point.

To establish a jurisdiction in a tort committed outside Ghana the tort complained of,

(a) must be actionable as a tort according to the law of Ghana,

(b) must be one which is not justifiable according to the law of the country where the tort is alleged to have been committed.

The application before this court is one in respect of an action in personam. It is an action based on an alleged slander. The law, as I understand it, is that if at the time of the service of the writ, the defendant is within the jurisdiction of the court, then the court has jurisdiction in respect of any cause of action, being in personam, regardless of where the cause of action arose. And this jurisdiction remains operative even though the defendant leaves the jurisdiction.

[p.1075] of [1968] GLR 1069

On 7 June 1967, an absconding warrant to arrest the defendant was issued against the defendant. This shows that he was within the jurisdiction of this court. The order for the issue of the warrant was made at 9.40 a.m. and by 12.40 p.m., that is, within about three hours of the issue of the warrant, the defendant had been brought to court. Before the court, counsel for defendant stated that the defendant was prepared to offer bail for his appearance before the court. Eventually a bail bond was executed. In my view the conduct on the part of the defendant means that he has submitted to the jurisdiction of the courts in Ghana in respect of this particular matter and he cannot be heard to dispute that submission. As far as one can see, there was no protest and nothing in the nature of a protest has been raised before this court by counsel for the defendant. Clearly the defendant was within the jurisdiction of this court at the time that the writ was issued and he was served with the writ.

Once the defendant was within the jurisdiction he was liable to be served with the writ. And this can be done whatever the period of his stay in this country. Equally, his nationality would not make any difference and whether or not his presence in the country at the material time was voluntary or not on any voluntary basis, the writ could still be served on him.

I do not thus agree with counsel for the defendant that an action for slander could not be maintained before the courts in this country and that it must be established that the words complained of were not justifiable in Switzerland. How can we in Ghana determine whether or not the words complained of are not justifiable in Switzerland if the courts in Ghana cannot be said to possess jurisdiction in the matter? The issue whether the words complained of are not justifiable by the law of Switzerland is an issue which has to be gone into before the courts in Ghana.

The application before me is one for the dismissal of the plaintiff’s action on the ground that the plaintiff’s writ discloses no reasonable cause of action. The application itself and the argument of counsel raise matters which can only be determined when the full facts of the case have been unfolded before the court. An innuendo has been pleaded. That demands the establishment of extrinsic facts known to the hearers of the words complained of and which would reasonably induce them to understand the words complained of in a defamatory sense, that is to say, facts which go beyond or would alter the natural and ordinary meaning of the words complained of. The words complained of are:

“The Vice-Chairman, Mr. Harlley, was saved because he spent the Sunday night with his girl friend. I do not know what the soldiers and the police are going to do after they have handed

[p.1076] of [1968] GLR 1069 over power to a civilian government. Perhaps, John Harlley could go to supervise his diamond business in England with his friend Adolf Pluss.”

These words are complained of by the plaintiff as being slanderous. Counsel for the defendant contends that the paramount consideration should be that in determining whether this court can go into the matter it must be ascertained that the words were not justifiable by the law of Switzerland. In this respect an English version of the relevant law of Switzerland has been provided through affidavits sworn to by certain experts on the law of Switzerland. As might be expected, the experts do not agree on the interpretation of the words complained of as to whether they are not justifiable under the law of Switzerland. The expert on behalf of the defendant divides the words complained of into two parts, that is, the first sentence as one part and the second and third sentences as the second part. He says that the first sentence indicates that the plaintiff was “saved” on a “Sunday night” and that in considering this sentence under Swiss law it would be material to rely on the fact whether the plaintiff “was and is a married man living with his wife” for the purpose of extending the plain meaning of the words complained of in that sentence.

He continues to say that it is doubtful, in his own opinion, whether a Swiss court would hold that an offence under the Swiss law had been committed by propagation of the words used in the first sentence, even with reference to a married man, since the words “because he spent the sunday night with his girl friend” are obviously merely incidental to the main idea of the purpose as to the sentence as a whole, namely, to explain why the plaintiff was “saved” on the occasion of the abortive revolution. He is firmly of the opinion that a Swiss court would hold that the first sentence is incapable of conveying the imputation that the plaintiff is a man “without morals” as alleged by the plaintiff or as conveying any of the various imputations of unfitness for office which have been specified in the statement of claim.

On the second and third sentences this expert is of the firm opinion that a Swiss court would hold that the propagation of the second and third sentences would not constitute an offence under the Swiss Criminal Code and equally he was of the firm opinion that the Swiss court would hold that the second and third sentences are incapable of meaning that the plaintiff carries on an illicit diamond business as alleged in the statement of claim or as bearing the imputation of unfitness for the various offices specified in his statement of claim. He makes the point that the crux of the offence under the relevant Swiss law is the propagation of a statement reflecting upon honour.

[p.1077] of [1968] GLR 1069

A statement reflecting on a person’s fitness for office on any grounds which do not in terms reflect upon his honour would not be held to constitute an offence under the relevant Swiss law. On these grounds he supports the contention of counsel for the defendant that the words complained of are justifiable under the Swiss law and therefore cannot form the basis for an action in the courts in Ghana.

The expert on behalf of the plaintiff claims that the fact of saying that a married man has spent a night with his girl friend, or even the mere assertion that a married man has a girl friend is, undoubtedly, under the Swiss criminal law, an offence against honour and an offence against reputation. He contends that the accusation that a man is supervising a diamond business he possesses in England is not in itself an offence against honour or reputation. But it becomes such, if the person who deals with this diamond business has no right to do so, as for example, because the person concerned is an official or a member of the government or also because such a business would not be authorised by the law of the country of the person. In his view, saying of a person that he is developing a business which is not authorised by his profession or by law constitutes an accusation of being engaged in a forbidden activity, which, in his view, would be an offence as to the honour or the reputation of the person about whom the words are spoken.

The experts do not agree. However, there is one ground upon which they are agreed. That is the translation of the relevant Swiss law and this is what the translation of paragraph 1 of article 173 of the Swiss Penal Code says:

“Any person who in communication to a third party accuses another person of, or casts on that other person a suspicion of dishonourable conduct, or of any other act which is likely to diminish his reputation, such person who propagates such an accusation or suspicion, shall, upon complaint, be liable to a maximum of six months’ imprisonment or a fine.”

Defamation is a criminal offence under this provision of the Swiss law. If it is established that the words complained of are defamatory, then the person who propagated such an accusation or suspicion would be liable to a maximum sentence of six months’ imprisonment. The position is thus quite clear. If the words are defamatory, then they are not justifiable under the Swiss law. If, on the other hand, they are held not to be defamatory then they become justifiable under the relevant law of Switzerland. There is then an issue whether or not the law of Switzerland, as argued between the experts, admits of the words complained of being considered as defamatory. That issue has to be determined and in the present circumstances can only

[p.1078] of [1968] GLR 1069 be determined before the courts in Ghana since the defendant was served within the jurisdiction of our courts. It cannot be said then that the writ in this case does not disclose a cause of action as far as the law of Switzerland is concerned.

To constitute slander, an untrue imputation must have been communicated to a third person against the reputation of another. There is no one definition of defamatory imputation which is wholly satisfactory. There seems to be a general agreement that any imputation which admits of damages flowing from the publication of a defamatory matter would be actionable and in the case of slander some special damage must be proved to flow from the publication unless it falls within certain specified categories, one of which, for the purposes of the present case, is a situation where the words are calculated to disparage the person alleged to be defamed in any office, profession, calling, trade or business held or carried on by him at the time of the publication. Unless, therefore, the plaintiff in this case can bring his case under that category he can only succeed on proof of special damage arising as the direct, natural and reasonable result of the defamation complained of. As was said in Jones v. Jones [1916] 2 A.C. 418 at p. 506, H.L. by Lord Wrenbury, “The fact that the imputation is a gross and grievous attack upon personal character is not of itself enough.

For otherwise a statute would not have been necessary to enable a woman or a girl to sue for slander upon her chastity. The imputation must be such and the state of facts such, not as that a judge would necessarily or reasonably presume or infer damage, but as that judges in the past have presumed or inferred damage … The plaintiff must … show that the imputation is such and the state of facts is such as that a presumption of damage as matter of law has been made in the past under like circumstances.”

In certain countries in the Commonwealth this is not the law. In New Zealand, for “ample, the Defamation Act of 1954 has made it unnecessary to allege or prove special damage in any action for defamation. In the Commonwealth of Australia, in the states where there are Codes, there is no distinction between libel and slander except that if the publication complained of is not of words intended to be read it is a defence to prove that it was made on an occasion and under circumstances when the person defamed was not likely to be injured thereby. In Scotland there is no distinction between libel and slander. In Canada the Uniformity Defamation Act provides that defamation means libel or slander, and that if defamation is proved “damage shall be presumed.” We in Ghana appear to be saddled still with the English law and we thus have to go by the

[p.1079] of [1968] GLR 1069 categories to which I have referred. Hence the statement of counsel for the plaintiff that there is need for evidence to be taken as the meaning of the words used may be affected by the tone of voice in which the words were spoken or the meaning could be inferred from accompanying expressions or gestures. Signs or gestures may themselves also convey a defamatory imputation, either because they express words; because they have a conventional defamatory meaning known to those who see them or indicated to the ordinary observer that a person has done something which is very discreditable.

It is settled law that where words are used which are calculated to disparage the reputation of a person having regard to any office which he holds or in the way of any lawful profession, calling, trade or business carried on by him that person can sue without proof of special damage. He is required by the law to allege in his statement of claim and then prove at the trial that he held the office or carried on the profession, trade or business at the time when the words complained of were published. If the court comes to a conclusion that the words complained of are calculated to disparage the plaintiff in his office at the time of the publication of the words it becomes unnecessary to allege or prove special damage. There is thus no doubt that the tort complained of is actionable according to the law of Ghana.

An innuendo is no more than a word or words used in statement of claim to ascertain a person in the sense of his having done something which has given cause for comment. It may also be a word or words which connect an expression or a certain state of facts with a particular person. In a civil action for defamation, therefore, an innuendo becomes a statement by the plaintiff indicating the construction which he puts before the court of his understanding of what the words complained of mean or are capable of meaning or are intended to mean.

The essential question in this case is whether the words complained of are reasonably capable of meaning what it is claimed they mean; and the test is: Could a reasonable man think that the plaintiff is an immoral man and that he is incapable of holding the office he holds? The Swiss law would have to be brought into consideration. And since an innuendo has been pleaded a question arises of having to go beyond the natural and ordinary meaning of the words complained of. There is thus clearly the need for evidence to be led that there were special facts or circumstances which give rise to the raising of eyebrows.

I hold, therefore, that there is an issue which has got to be determined, whether, as the experts do not agree, by the law of Switzerland

[p.1080] of [1968] GLR 1069 the words complained of constitute defamation as an offence under article 173 of the Swiss Criminal Code.

I must, therefore, dismiss the application. I award costs of N¢300.00 against the defendant-applicant.

DECISION Application dismissed with costs. L.F.A.