ANTHONY vs. UNIVERSITY COLLEGE OF CAPE COAST [1973] 1 GLR 299

CASES REFERRED TO

(1) Tolley v. Fry [1931] A C. 333; [1931] All E.R. Rep. 131; 100 L.J.K.B. 328; 145 L.T. 1; 47 T.L.R.

351; 75 S.J. 220, H.L.

(2) Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331; 98 L.J.K.B. 595; 141 L.T. 404; 45 T.L.R. 485; 73 S.J. 348, C.A.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a married woman, against the defendants. the University, claiming damages for libel. The facts are sufficiently set out in the judgment.

COUNSEL de Graft Aidoo for the plaintiff.

J.B. Short for the defendants.

JUDGMENT OF EDWARD WIREDU J.

The plaintiff in this case is a married woman and a prominent member of the Catholic Mboa Kuw a benevolent religious society in Cape Coast. She is by vocation a seamstress and a trader in textiles. On the evidence she seems to enjoy a prominent position and respect in both her family of origin and her marital family and also of the said Mboa Kuw of which society until the last elections she was its president. She is also the mother of about three children. The University College of Cape Coast (herein called the defendants), is an institution in the same town and as its name implies is one of the highest academic forums of learning in Ghana.

Some time in the month of June 1971 the defendants published and advertised several copies of the plaintiff’s photographs in the form of postcards printed at their central photographic studio and exhibited them for sale at the university bookshop at a price of twenty pesewas each. At the back of each postcard were the following: “Traditional hairdo in Ghana.” A copy of this photograph was tendered in evidence at the trial and accepted as exhibit A. The evidence shows that information got to the plaintiff about the publication and sale of her photographs at the defendants’ bookshop through the plaintiff’s fifth witness, her husband, who had earlier been informed of the same by the plaintiff’s second witness his son by the plaintiff. As a result of events which followed the discovery of the publication and sale of copies of exhibit A, the plaintiff caused her solicitors to write to the defendants to demand compensation. On receipt of an unfavourable reply to her demand, she commenced this action for damages.

By her writ of summons she claimed against the defendants as follows:

“The plaintiff’s claim is for: N¢40,000.00 damages for libel committed against the plaintiff by the defendants by unlawfully printing, publishing and selling the plaintiff’s photograph in the

[p.302] of [1973] 1 GLR 299 form of postcards at the defendants’ bookshop since about January 1971, without the plaintiff’s knowledge and consent, and fraudulently deceiving the public and her family into believing that the plaintiff had lent herself to such mean advertisement and lives and thrives on earnings therefrom and that it is the defendants’ lawful product or production.”

In paragraph (6)-(11) of her accompanying statement of claim she did not complain of the picture nor the inscriptions at the back of the postcard as being defamatory in themselves but alleged an innuendo in the following terms:

“(6) The said unlawful printing and publication of the plaintiff’s photograph in the form of postcards, sold without the plaintiff’s knowledge and consent, were intended to diminish and indeed have diminished the esteem in which the plaintiff is held in the plaintiff’s trade and in both the plaintiff’s family of origin and family of her own, and in society, and have greatly injured the character, reputation and moral standing and trade of the plaintiff as to unlawful printing and publication implied that the plaintiff had lent herself to it.

(7) By the said unlawful printing and publication of the plaintiff’s photograph the defendants are understood to mean that the plaintiff is (i) a woman and (ii) a married woman of base, weak and mean moral character and lives and thrives on earnings from such cheap and mean advertisements.

(8) In this way, the plaintiff has become the object of public and family ridicule, contempt and insults.

(9) By the said unlawful printing and publication at will of the plaintiff’s photograph in the form of postcards at the defendants’ central photographic unit and bookshop respectively, the defendants have unlawfully and fraudulently succeeded in creating in the minds of the public that they have the legal or lawful right to reproduce the said photograph in the form of postcards.

(10) In this way the defendants have in addition succeeded in passing off the several copies of the said postcards they have unlawfully printed and published in a way which deceives the public into thinking that it is the defendants’ lawful product or production.

(11) The plaintiff is adversely affected in her trade, and in her family and social life by the unlawful printing and publication of these postcards.”

The defendants in their statement of defence pleaded as follows:

“(1) Save as has been herein specifically admitted or admitted by necessary implication, the defendants deny each and every

[p.303] of [1973] 1 GLR 299 allegation of fact contained in the statement of claim as if they had been set out herein and traversed seriatim.

(2) The defendant say that the postcard of which the plaintiff now complains is an innocent reproduction of an original publication made with full knowledge and co-operation of the plaintiff.

(3) The defendants say that the picture in no way defames the plaintiff and if anything is complimentary.

(4) The defendants deny the innuendoes alleged and say neither the picture nor their sale could mean or be understood to mean what is contained in the statement of claim.

(5) The defendants say the publication was by way of a cultural exchange and not more than 150 were printed.

(6) The defendants will contend that the action is frivolous and vexatious and should be dismissed.”

On 4 December 1971 a reply in the following form was filed on behalf of the plaintiff:

“Reply to statement of defence (1) And in further answer to paragraph (2), the plaintiff says the several postcards were unlawfully printed, published and sold without the plaintiff’s knowledge and consent as set out in paragraph (6) of the statement of claim and this shows that the object of the publication and sale is to hold out the plaintiff as a woman of base, weak and mean moral character who has lent herself to and lives and thrives on such cheap and mean advertisements.

(2) The plaintiff further denies that only 150 copies of the said postcards were printed and sold and holds the defendants to the strictest proof of the same.

(3) The plaintiff states that the defendants have no defence to the statement of claim as their defence is frivolous, vexatious and an abuse of the process of the court and should be dismissed.”

And on 21 February 1971 the following issues were agreed to and set down for trial:

“Issues to be tried (1) Whether or not the defendants printed, published and sold postcard copies of the plaintiff’s photographs complained of since about January 1971.

(2) Whether or not the printing, publication and sale of postcard copies of the plaintiff’s photographs complained of are defamatory.

(3) Whether or not the plaintiff is adversely affected in her trade, family and social life by such printing, publication and sale of the plaintiff,s photograph in the form of postcards.

[p.304] of [1973] 1 GLR 299

(4) Whether or not the printing, publication and sale of the said postcard copies of plaintiff’s photograph is an innocent reproduction.

(5) Whether or not more than 150 copies of the said postcards were printed, published and sold.

(6) Whether or not the printing, publication and sale of the said postcards are complimentary.

(7) Other issues arising out of the pleadings.”

The evidence on record shows that copies of exhibit A which have become the subject-matter of this prosecution were a republication of an original portrait of the plaintiff taken at the celebrations of the Catholic Mboa Ekuw’s Silver Jubilee and which appeared in a weekly religious publication, The Catholic Standard of 3 January 1971. This publication was tendered in evidence and was admitted without objection as exhibit E. The plaintiff’s first witness, Ernest Kobina Korsah, photographer, who took the original picture which was published in The Catholic Standard and who also worked on the copies reproduced at the defendants’ photographic studio from where they were sent to the bookshop and advertised for sale, narrated the circumstances under which the original photograph was taken and the subsequent reproduction of copies by the defendants for sale as follows:

“I am a photographer employed by the University College of Cape Coast and I live at Cape Coast. I have seen exhibit A before. Exhibit A is the photograph of the plaintiff. I did not know at first that the plaintiff was a married woman but I later got to know that she was a married woman. Exhibit A was printed at the central photographic unit of the University College of Cape Coast. Exhibit A was printed by myself and some others at the University. If any person wanted a copy of exhibit A then the place to get one was the University Bookshop. One could get a copy of exhibit A by going to buy copies at the bookshop. I heard that copies of exhibit A were being sold for twelve pesewas. Copies of exhibit A were made by the University at the time when certain American educators were on a visiting tour to higher institutions in the country. The University obtained the negative from which copies of exhibit A were made from me. I remember that when I took the original photograph of the plaintiff, I told her that a copy of it would be left at the office of the Standard publications for her collection. The plaintiff did not collect her copy and the said copy was sent to me at the University. The copy was lying on my table when my boss saw it together with others. I told my boss that the photograph was for a certain lady who was to collect the same. At that time we were making selections of photographs of cultural background and when he saw it he directed I send the photograph of the plaintiff together with those we had selected to the bookshop manager where they screened among the lot and those selected sent back for

[p.305] of [1973] 1 GLR 299 copies to be printed. I have seen the photograph of the plaintiff which appeared in exhibit E. I took that photograph. It is the same as exhibit A. The difference in exhibits A and E is due to the different way in which the negative was printed. I took the photograph in exhibit E on the instructions of the editor of The Catholic Standard called Reverend Father Peters. The Reverend Father Peters told me that he had been invited by the Mboa Ekuw to take some photographs for publication in his paper but because he was travelling he could not go he told me to go. I saw the plaintiff and another woman and told them that Reverend Father Peters had asked me to come and take some photographs of the Mboa Ekuw for publication in The Catholic Standard. She agreed and I took the photograph. I took one portrait of the plaintiff and another picture with her other friend.”

The plaintiff’s first witness’s evidence about the taking of the original photograph is supported substantially by the plaintiff and her husband the plaintiff’s fifth witness. From the issues set out for trial it becomes apparently clear that in order to succeed the plaintiff must satisfy the court that the publication complained of was capable of some at least of the meanings attributed to it in the innuendo and that those meanings were defamatory or that the publication was an invasion of her right.

The evidence adduced on behalf of the plaintiff apart from her own testimony was that of the plaintiff’s second witness her son Albert Appiah, the plaintiff’s third witness, Aba Wangara (a customer), the plaintiff’s fourth witness Mr. Clarke the head of the plaintiff’s family of origin and the plaintiff’s fifth witness, her husband. In order to appreciate the full effect and significance of their testimony a reproduction of certain parts of their evidence will be pertinent. The plaintiff’s second witness had this to say in his evidence:

“When my friend saw me at first he started teasing me saying `Nde dze wona wototon ne mfonyi.’ I understood what my friend said to mean that my mother who was formerly leading a pious life has now changed to become a bad woman by causing her photographs to be sold to the public. When I saw the photograph I did not like it. I would like the photograph to be withdrawn from sale. I would like the photographs to be withdrawn from sale because my friends who saw me in town used to say that my mother’s photographs arc being sold to the public and also since I was born I have never seen any picture of a member of any family being sold in the public. Such practice is frowned upon in our society.”

The plaintiff’s third witness also had this to say:

“When I went out to sell my things, I went to the University and saw that copies of the plaintiff’s photographs were being sold. [Witness identifies exhibit A as similar to those which were being

[p.306] of [1973] 1 GLR 299 sold.] When I saw the photograph I reported what I saw to the plaintiff’s husband and told the husband that people were saying that the plaintiff was a prostitute. Because of what I heard and reported to the husband I did not feel that it was good for me to work with the plaintiff. I went to a drinking bar and saw two copies of exhibit A with some young men drinking at the bar and they were showing the photographs to people as they came to the bar. When I saw this I went and told the husband and added that I was no longer going to trade with the plaintiff because people will think I am also spoiled as the plaintiff.”

The plaintiff’s fourth witness also in evidence testified as follows:

“The sale of the photographs of a married woman as I understand in the Fante custom is that the woman has brought shame to herself and has brought disgrace which affects her family and which disgrace lowers her in any position she occupies in the family.”

Then the plaintiff’s fifth witness, the husband finally testified as follows:

“After I had got the photograph, I called the plaintiff and showed it to her and she admitted that the photograph was hers but denied having sent any of her photographs to the University. I told her that she had disgraced herself and myself as she being a married woman and I being her husband. I also told her that being a married woman and allowing her photographs to be sold in the public any member of the public who purchases one could claim her as a lover. I told the plaintiff further that I was going to report the matter to the uncle and that she should get ready with her things because I would not like to stay with her any longer. I went to the plaintiff’s fourth witness and reported the matter to him that I had seen the plaintiff’s photograph being sold at the University. I showed him the photograph I brought and the receipt given to me when I bought the photograph. I told the plaintiff’s fourth witness that since the plaintiff had disgraced herself and myself I was not going to have anything to do with her.”

No evidence was called to contradict this testimony by the plaintiff’s witnesses and it seems to me that if their evidence is accepted then there will be no difficulty in concluding that if the publication conveyed the meaning that the plaintiff has lent herself to defendants’ publication under the circumstances of this case, then it would constitute both an unlawful invasion of her right of privacy and defamation.

There arises then the question whether the publication was capable of bearing the defamatory meaning attributed to it in the plaintiff’s pleadings. The facts of this case like a number of cases where innuendoes are alleged show that the defamatory innuendo here depends solely upon the circumstances in which the publication took place. If no evidence had been provided by the plaintiff beyond the mere production of exhibit A, I should have said there was no evidence on which it would have been held that there was a libel but here the sum total of

[p.307] of [1973] 1 GLR 299 the evidence of the plaintiff’s witnesses show that if the photographs advertised for sale were issued with the assent of the plaintiff then that conduct of the plaintiff would seriously injure her marital status and also the esteem which she is held both in her family of origin and her own marital family and also in her trade. It is significant to note that the evidence about the serious repercussions the effect of the publication would have on the plaintiff’s reputation as a married woman and also the contemptuous way the family regarded her conduct arising out of the said publications and the plaintiff’s fifth witness’s reaction to the publication were not made the subject of challenge by cross-examination nor of dispute by rival evidence even though the defence denied the innuendo pleaded by the plaintiff.

The duty of a judge in dealing with cases where innuendoes have been alleged is briefly expressed as follows in Gatley on Libel and Slander (6th ed.), para. 128, pp. 74-75 which read as follows:

“A Statement of Claim in which the words alleged to be defamatory are properly set out with an innuendo as to their meaning will be considered as containing two counts-one with the innuendo, and one without the innuendo, and if the plaintiff can satisfy the jury that the words have the defamatory meaning ascribed to them in the innuendo he is entitled to recover, whether or not they are also defamatory in their natural and ordinary meaning. In such a case it is for the judge in the first place to determine upon the evidence adduced whether the words are reasonably capable of being understood in the meaning ascribed to them in the innuendo. `It is always a question for the judge upon reading the innuendo and after having heard the evidence upon it, to say whether the words are reasonably capable of bearing the meaning attributed to them.’ `If the judge, taking into account the manner and the occasion of the publication and all other facts which are properly in evidence, is not satisfied that the words are capable of the meaning ascribed to them, then it is not his duty to leave the question raised by the innuendo to the jury.’

He ought not to leave the issue to the jury unless there is evidence that someone to whom the words were published knew the extrinsic facts on which the plaintiff relies to support his innuendo. If the judge concludes that the words are not capable of the innuendo meaning and that the words are innocent in their natural and ordinary meaning he should enter judgment for the defendant. If `the judge is satisfied of that [i.e., the words are reasonably capable of the meaning ascribed in the innuendo] it must be left to the jury to say whether the publication has the meaning so ascribed to it.’ `It is for the court to determine whether the words used are capable of the meaning alleged in the innuendo. It is for the jury [if the words are so capable] to determine whether that meaning was properly attached to them’.”

[p.308] of [1973] 1 GLR 299

The duties of both the judge and the jury fall to be decided by a sitting alone without jury.

From the above quotation it is clear that the first duty this court has is to decide whether upon the evidence adduced the publication complained of is reasonably capable of being understood in the meaning ascribed in the innuendo and secondly whether on the basis of the evidence the plaintiff has proved the necessary facts and knowledge of them by one or more of the persons to whom they were published. The question which therefore arises is whether the particular circumstance under which the photographs were advertised for sale at the defendants’ bookshop is itself capable of the inference that the assent of the plaintiff had been obtained before publication. Counsel for the plaintiff submitted that the circumstances of the publication were capable of such inference and founding himself on the case of Tolley v. Fry [1931] A.C. 333, H.L., he argued that the publication coming as it did from an institution of such a high standing as the defendants, one cannot but hold the view that it is otherwise than a lawful, production of the defendant’s publication to which the plaintiff had assented.

The undisputed facts of this cases show that the publication by the defendants was unauthorised and that it was without the knowledge of the plaintiff. This was exactly the same point which fell for consideration in the Tolley v. Fry case. (supra). In that case, the defendants, a firm of chocolate manufactures, issued, as an advertisement of their goods, a caricature of the plaintiff, a prominent amateur golfer, depicting him as playing golf, with a packet of their chocolate protruding from his pocket, and a caddy was represented with him, who also had a packet of chocolate, the excellence of which he likened to the excellence of the plaintiff’s drive. The advertisement was published without the knowledge or consent of the plaintiff, who thereupon brought an action claiming damages, alleging that it constituted a libel. By his statement of claim he alleged that, “the defendants thereby meant, and were understood to mean, that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendant’s chocolate; that he had done so for gain and reward; that he had prostituted his reputation as an amateur golf player for advertising purposes; that he was seeking notoriety and gain by the means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer.”

At the trial evidence was given by golfers to the effect that if an amateur golfer lent himself to a scheme for advertising, people might think he was not maintaining his amateur status, and that he might be called upon to resign his membership of any reputable club. It appears from correspondence passing between the defendants and their advertising agents that the question of the possible effect on the amateur status of the plaintiff and others similarly caricatured had been brought to

[p.309] of [1973] 1 GLR 299 the attention of the defendants. The trial judge Acton J. ruled that the advertisement was capable of a defamatory meaning, and left the case to the jury, who found for the plaintiff. Upon an appeal by the defendants, the English Court of Appeal held that the judge ought to have withdrawn the case from the jury and therefore judgment was entered for the defendants. The plaintiff appealed to the House of Lords where it was held that in the circumstances in which the publication took place, as explained by the evidence, the caricature was capable of bearing the meaning alleged in the innuendo. In his judgment Lord Buckmaster at p. 343 said:

“My Lords, if the advertisement the subject of the alleged libel were issued with the assent of the appellant the evidence of Mr. Storey and Mr. Hobson shows that such conduct would seriously injure his position in golf clubs and as an amateur golfer. This evidence was not made the subject of challenge by cross-examination nor of dispute by rival evidence, and indeed is in agreement with common experience.”

In the instant case the evidence of the plaintiff’s second, fourth and fifth witnesses shows that such conduct of the plaintiff as could reasonably be inferred from the circumstances of the publication would seriously injure the plaintiff’s position as a married woman and also the high esteem which she is held among members of her family of origin. I therefore share the view expressed by learned counsel for the plaintiff that the fact that the publication was by an institution of such eminence as the defendants one would suppose that the publication was not without her consent. Moreover the fact that the defendant institution was selling these photographs implies that the plaintiff had agreed to let her portrait be exhibited for sale and that she had done that for gain. In my judgment this conduct imputed to the plaintiff by the publication and sale of her photographs on the evidence before me is sufficient to prostitute the plaintiff’s marital status and open her to contempt and ridicule.

The defendants by paragraph (2) of their statement of defence pleaded the following:

“(2) The defendants say that the postcard of which the plaintiff now complains is an innocent reproduction of an original publication made with the full knowledge and co-operation of the plaintiff.”

The question which arises out of this paragraph is whether the averments exonerate the defendants on what I have held to be defamatory of the plaintiff? The original publication referred to by the defendants is the publication in The Catholic Standard a copy of which was tendered and accepted as exhibit E. It is not disputed that the said publication was with the knowledge and consent of the plaintiff and in fact the publication in exhibit E would equally like exhibit A have been an invasion of the plaintiff’s privacy had her consent not been sought. It is true

[p.310] of [1973] 1 GLR 299 that no evidence has been brought to show that exhibit E was understood to be defamatory of the plaintiff but the question is, does that mean that the unauthorised republication of it by the defendant in the circumstances of this case as provided by the evidence on record exonerates the defendants despite the unchallenged evidence produced on the plaintiff’s behalf?

The law on reproduction of an original libellous or slanderous matter is succinctly stated in Gatley on Libel and Slander (6th ed.), para. 274 at pp. 135-136 where the learned author had this to say:

“Although the original publisher of a libel or slander may be prima facie liable for its republication, he will nevertheless have a good answer if he can prove that the words are true or that the occasion on which he published them was privileged. But if the occasion on which he published the words was not privileged, he cannot escape liability by showing that the occasion on which the words were republished was privileged.

Conversely, if the person who republished the libel or slander was under no duty so to do, he cannot escape liability for such republication by showing that the occasion on which the words were originally published to him was privileged, though he would be able to raise a good plea of privilege if he was under a duty to republish the words, even though the occasion on which the words were originally published to him was not privileged.”

It is clear from the above passage that if the original publication in The Catholic Standard was libellous then the defendant institution cannot seek refuge under the privileged right of The Catholic Standard, the defendants being under no duty to reproduce the photographs. The above proposition of law may not be applicable in the instant case but the point of significance here is that the two publications appeared in different places, in different situations and under different circumstances. The manner of the publication, the surrounding facts and the like, which would influence those to whom the publications were made in putting a meaning are all material to determine whether a publication is calculated to carry a libellous meaning. So that in the instant case it is how the publication by the defendants was understood which is material to determine whether the plaintiff succeeds. The caption at the back of exhibit A means nothing to an illiterate person to whom it is published. As the learned counsel for the plaintiff puts it “jazz played in a Church house is not given the same interpretation as jazz played in a club house.”

As to the innocency of the intention of the defendants the law is that it is immaterial whether the defendants knew or did not know of the external facts which turn a presumptively innocent publication into a defamatory one. They must take the risk of that and they are liable either way provided the defamatory meaning which is alleged could reasonably have been put upon the publication: see the case of Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331, C.A.

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I have some sympathy for the defendant institution about their intentions but I am satisfied that the innuendo as pleaded by the plaintiff at least in paragraphs (7), (8), (9) and (10) of the statement of claim have been established on the evidence and in my judgment as against the defendant institution. The plaintiff is therefore entitled to damages.

It was further submitted on behalf of the defendants that a mere publication of a person’s photograph was not enough to justify an action in defamation. Counsel submitted that on the facts of the instant case the cause of action if any existed against the defendants at all could only be maintained by the publishers of The Catholic Standard whose copyright had been infringed. I have found it rather difficult to be persuaded by this argument for as I have held earlier in my judgment, I consider the defendants’ publication of the plaintiff’s photographs under the particular facts of this case an invasion of the plaintiff’s privacy and her legal right as the defendants are not entitled to enrich themselves by the unauthorised publication and sale of the plaintiff’s photographs. This act of the defendant institution in my judgment vests in the plaintiff a cause of action for damages and a right to injunction to restrain further publication by the defendants. In my judgment the plaintiff has two strings to her bow either in the defamation as proved or damages for an invasion of her privacy and legal right.

This brings me now to the question of damages. This of course, depends on the effect of the publication on the plaintiff’s reputation and any loss occasioned by the said publication. Award of damages under such circumstances has not been an easy task. The court is called upon to assess and not to calculate taking into consideration the extent of the publication, the status of the plaintiff, the effect of the publication, the occasion of the publication and the status of the defendants. These are all matters of guidance and they do no more than to assist the court in awarding what is fair and just in the particular circumstances. I think having regard to the publication, the facts of this case and the intention of the defendants, damages assessed at ¢2,750.00 with costs of ¢350.00 in favour of the plaintiff will be a fair assessment. I will further grant the plaintiff an injunction restraining the defendants from any further publication of the plaintiff’s photographs. I am not unaware that there has not been any express request for the relief but the relief being an equitable one the courts have an inherent right to grant the same if the justice of the case requires that course even though not expressly asked for by the party in whose favour it is decreed.

DECISION

Judgment for the plaintiff.

S. Y. B.-B.