TOMMY THOMPSON BOOKS LTD AND OTHERS vs. THE REPUBLIC [1995-96] 1 GLR 227

CASES REFERRED TO

(1) R v Frimpong [1959] GLR 287.

(2) State v Ahmad [1961] GLR 96.

(3) Gyimah v The Republic [1971] 2 GLR 147, CA.

(4) Republic v Mensah-Gyimah, High Court, 2 August 1969, unreported; digested in (1969) CC 150. (5) Badu v The Republic [1974] 2 GLR 361.

(6) Republic v Naykene, Circuit Court, Accra, 1992, unreported.

(7) R v Clerk (1728) 1 Barn KB 304; 94 ER 207.

(8) R v Wilkes (1770) 4 Burr 2527.

(9) R v Harvey (1823) 2 B & C 257; 2 State Tr NS 1.

(10) R v Munslow [1895] 1 QB 758; 64 LJMC 138; 72 LT 301.

(11) R v Wicks [1936] 1 All ER 384; (1936) 25 Cr App R 168; 154 LT 471, CCA.

(12) Thorley v Kerry (Lord) (1812) 4 Taunt 355; 3 Camp 214n.

(13) R v Wuta-Ofei (1947) 12 WACA 238.

[p.232] of [1995-96] 1 GLR 227 (14) R v Akiwumi (1948) 12 WACA 340.

(15) R v Brown (1949) 12 WACA 499.

(16) R v Badu (1944) 10 WACA 193.

(17) Attorney-General (Canada) v Hallet & Carey Ltd [1952] AC 427; [1952] 1 TLR 1408; 96 SJ 395, PC.

(18) Attorney-General v Ernest Augustus (Prince) of Hanover [1957] AC 436; [1957] 1 All ER 49;

[1957] 2 WLR 1, HL; affirming sub nom Ernest (Prince) of Hanover v Attorney-General [1956] Ch 188; [1955] 3 WLR 868, sub nom HRH Prince Ernest Augustus of Hanover v Attorney-General [1955] 3 All ER 647, CA; reversing [1955] Ch 440; [1955] 1 All ER 746; [1955] 2 WLR 613. (19) Robb’s Contract, Re [1941] Ch 463; [1941] 3 All ER 186; 111 LJCH 23, CA.

(20) Warburton v Loveland (1832) 6 Bli NS 1; (1831) 2 D & C1 480, HL.

(21) R v Holbrook (1878) 4 QBD 42.

(22) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.

NATURE OF PROCEEDINGS

APPEAL by the appellants, a newspaper company, its editor and the managing director, publishers of the Free Press newspaper, from the decision of the High Court, Accra wherein it affirmed the ruling of the Circuit Court, Accra overruling their preliminary objection to two counts of intentional libel under section 112(2) of the Criminal Code, 1960 (Act 29) brought against them following articles they published in the Free Press about Nana Konadu Agyeman Rawlings, the wife of the President of Ghana, on the ground that since she was not a public officer she could not seek their prosecution for intentional libel and that her remedy, if any, lay in civil proceedings. The facts are sufficiently set out in the judgments of Essilfie-Bondzie and Benin JJA.

COUNSEL

Nana Akufo-Addo (with him Akoto Ampaw) for the appellants.

Thomas Ahlijah, Chief State Attorney (with him M K Afriyie, Principal State Attorney), for the Republic.

JUDGMENT OF BENIN JA.

The only issue raised in this appeal is whether a person who is not a public officer can lay a criminal complaint under section 112(2) of the Criminal Code, 1960 (Act 29).

[p.233] of [1995-96] 1 GLR 227

The facts giving rise to the appeal are not in dispute. Briefly they are as follows: The appellants are all in one way or the other connected to the newspaper called the Free Press. They are alleged to have published certain libelous material concerning Nana Konadu Agyeman Rawlings, the first lady of the Republic of Ghana. The appellants were accordingly charged with two counts of intentional libel under section 112(2) of Act 29. They were put before the Circuit Court, Accra.

A preliminary point was raised that since the complainant is not a public officer, she could not lay a complaint under this section. The circuit court dismissed this argument. An appeal to the High Court was also dismissed. This is therefore a second appeal against the dismissal of the same point. It is not in dispute that the complainant is not a public officer; hence the issue raised in the courts below and in this court also as to whether non-public officers are covered by this provision.

Learned counsel for the appellants, Nana Akufo-Addo, submitted that this is an offence of a public nature. That explains why in our case law there is no example of any prosecution by a non-public officer. The cases in question as set out are these: R v Frimpong [1959] GLR 287; State v Ahmad [1961] GLR 96 and Gyimah v The Republic [1971] 2 GLR 147, CA. Also see an earlier proceedings in the same case under the title Republic v Mensah-Gyimah, High Court, 2 August 1969, unreported; digested in (1969) CC 150 and Badu v The Republic [1974] 2 GLR 361. Also referred to is the circuit court case of Republic v Naykene, Circuit Court, Accra, June 1992, unreported. Counsel said the fact that all these prosecutions under this legislation were initiated by public officers is a true reflection of the ambit and scope of this legislation. Counsel said libel against non-public officers can be remedied in civil proceedings. He said further that the view taken by the circuit court and the High Court that every libelous publication is protected under this legislation is untenable. He referred to the book by Robertson, Media Law (3rd ed) at p 100 on the origin of this law which was meant or designed to prevent loss of confidence in the sovereign government and that the same principle has been translated into our legislation. He made reference to sections 114 and 117 of Act 29. The concept of public proceedings and public benefit run through the defences that are available to an accused. The fact that as part of the defence an accused must show that the publication was for the public

[p.234] of [1995-96] 1 GLR 227 benefit is an indication that it is a public order offence applicable to public officers only. He submitted further that it is a general rule that a restrictive interpretation be put on penal statutes where the choice is between a broad and a narrow interpretation. It is unthinkable that every conceivable or given libel should land somebody in jail. Counsel urged that the interpretation being canvassed by him is in accord with our own jurisprudence and that it is not by accident that all prosecutions for criminal libel have been at the instance of public officials. Counsel drew a distinction between our legislation and that of the English; hence the reference made by the High Court judge to a passage from Archibold’s Criminal Pleadings, Evidence and Practice (36th ed) was not wholly applicable. Counsel also rejected the classification of offences made by the High Court judge and said it is the nature of the offence which is important. He therefore urged this court to allow the appeal and set aside the circuit and High Court decisions and acquit and discharge the appellants.

For his part, learned counsel for the Republic-respondent, Mr Ahlijah, said the whole argument centres on what definition you give to the word “person.” He therefore made reference to section 32 of the Interpretation Act, 1960 (CA 4) and also sections 1, 4 and 66(1) of Act 29. He submitted that wherever a “person” was used in Act 29 it meant an individual. That once libelous matter was published against any individual, he could come under this legislation. On section 117 of Act 29, his submission was that they are defences available to an accused person and has nothing to do with the definition of a public officer and does not create any offence. On the case law, he submitted that though there is no precedent available, it does not preclude its application to non-public officers. He therefore urged this court to uphold the decision of both the circuit court and the High Court and accordingly dismiss the appeal.

I will begin with the classification of offences undertaken by the High Court judge following the divisions in Act 29. This is what the learned judge said:

“As to whether or not the offence of intentional libel under section 112(2) of the Criminal Code, 1960 (Act 29) is a public order offence, it will be necessary to make a detailed examination of Act 29. Act 29 is divided into five parts. Section 112 under which the charge was laid is found in chapter 7 of Part 2 entitled ‘Offences

[p.235] of [1995-96] 1 GLR 227 against the person.’ Under this Part we have the following subjects: justifiable use of force and harm, murder, suicide, abortion, assault, kidnapping, sexual offences and libel.

In Part 4, the subject matter is noted to be offences against public order, health and morality. The subjects here include treason, piracy, riot, unlawful assembly, perjury, resisting arrest, bigamy, prostitution, obscenity, slave dealing, etc.

The offence of libel does not fall within the subject matter of offences against public order, health or morality according to the Code’s classification of offences. As to whether libel is related to any of the offences mentioned in Act 29 as a public order offence, I cannot tell but I am certain that libel has been properly categorised as an offence against the person. I therefore reject as untenable counsel’s view that libel is a public order offence designed to protect the reputation of public officers.”

With all due respect to the learned judge, I think he erred in concluding that libel was not a public order offence simply because the division of Act 29 under which the offence of libel falls does not form part of the division titled “public order”, etc. Subdivisions of an enactment are not to be read as one with the enactment. Section 4 of the Interpretation Act, 1960 (CA 4) as substituted by the Interpretation (Amendment) Act, 1961 (Act 92), s 1 makes provision for this. It makes this position very clear. It provides:

“1. An arrangement of sections or of similar divisions of an enactment placed at the front of an enactment, titles placed at the head or beginning of any subdivision of an enactment and notes and references placed at the side of any provision are intended for convenience of reference only and do not form part of the enactment.”

The memorandum published with the Bill for this Act explains the purpose of this provision to be this: “It is difficult to compress into a marginal note or a heading a comprehensive statement of the object of the section, and their only purpose, as the clause makes clear, is to act as an index to the subject-matter and to make for easier reading.”

But even though the main divisions or parts may be read together

[p.236] of [1995-96] 1 GLR 227 with the enactment depending on how they are framed, these by no means provide conclusive interpretation of the sections and subdivisions thereunder. In each given case the intent of the legislator must be ascertained from the provisions themselves to begin with, before recourse may be had to other sources for interpretation. I think it is not enough to settle on an interpretation just by looking at what part of Act 29 an offence is placed. The main divisions of Act 29 may serve as a guide in finding out the legislative intendment but as I said they do not provide conclusive interpretation or construction of the specific provisions.

Next, I will take on the origin and application of this offence in England, which counsel for the appellants submitted have found expression in our own legislation. In England, this offence was originally meant to protect the Crown. Thus any works, acts, or writing in respect of the public acts or even private conduct of the King or Queen which tended to vilify or disgrace him or her, or to lessen him or her in the esteem of the subjects, or any denial of his or her right to the Crown, even in common and unadvised discourse was punishable as seditious libel. See these cases: R v Clerk (1728) 1 Barn KB 304 and R v Wilkes (1770) 4 Burr 2527. No wonder that the old statutes: Slanderous Reports, 1275 “de scandalis magnatum” (3 Edw 1, c 34); Penalty for Slandering Great Men, 1378 (2 Ric Stat 1, c 5) and Penalty for Slandering Great Men, 1388 (12 Ric 2, c 11) prohibited telling or publishing any false news or tales whereby discord or occasion of discord or slander might grow between the King and the people. It was not until 1887 that they were repealed: see Statute Law Revision Act, 1887 (50 & 51 Vict, c 59). Then also by the Succession to the Crown Act, 1707 (6 Ann, c 41), it was declared treason to write or print against the succession to the Crown as established by the Acts of Settlement (1 & 2 Will & Mar Sess 2, c 2; 12 & 13 Will 3, c 2) and of Union with Scotland (6 Ann, c 11). Various legislations were also passed for the purpose of guarding the King’s character and title and the courts upheld them. Thus in R v Harvey (1823) 2 B & C 257 where there was a publication that King George III was labouring under mental derangement it was held to be an offence on the ground that it tended to unsettle and agitate the public mind, and to lower the respect due to the King.

Even though the law was vigorously pursued when it involved the

[p.237] of [1995-96] 1 GLR 227 sovereign, nevertheless it was not limited to the king or queen or other officers working for the sovereign, ie Crown agents. The main differences being that in the case of other persons it was not termed sedition or seditious libel to publish a defamatory matter, but simply an indictable libel, and also when it involved the sovereign, truth was no defence when seditious libel was charged. When it involved other citizens the courts were at liberty to discourage criminal prosecution and instead ask the parties to go for civil proceedings, if they considered it trivial and which would not result in breach of the peace. But both the courts and textwriters do agree that at common law this offence was available to everybody. Russell on Crime (12th ed), Vol 1 at p 774 writes that: “The publication of matter defamatory of any living private person or definite class of living persons, is an indictable misdemeanour at common law, if effected by writing or print or by signs, effigies, or pictures.” The authors of Archibold on Criminal Pleading, Evidence and Practice (34th ed) at para 3630 have set out several decided cases in which the complainants were private citizens. They went on to state in section 4 of the said paragraph at page 1359 that:

“writings vilifying the character of persons in a public position in England, except where the writing amounts to sedition or contempt of court, appear to be in the same position as other defamatory libels on private persons. . . “

(The emphasis is mine.) Indeed, briefly, that was the position of the common law.

This was enacted into law by the Libel Act, 1843 (6 & 7 Vict, c 86), s 4 of which made it an offence for any person to maliciously publish any defamatory libel, knowing the same to be false., every such person upon conviction was liable to suffer imprisonment for a term not exceeding two years and to pay such fine as the court awarded. It was rightly said in R v Munslow [1895] 1 QB 758 that this section did not create or define a new offence., but merely prescribed the punishment for the common law offence. But at any rate it provided a statutory definition for criminal libel and made it a statutory offence.

The English Court of Criminal Appeal affirmed in the case of R v Wicks (1936) 25 Cr App R 168 at 172, CCA that this offence was open to any living person. The complainant in that case, one Mr Chapman,

[p.238] of [1995-96] 1 GLR 227 was a private citizen. The trial court’s direction to the jury which the Court of Appeal indorsed to be the right view was this:

“A defamatory libel consists in the writing and publishing of defamatory words of any living person, words calculated or intended to provoke him to wrath or expose him to public hatred, contempt, or public ridicule or damage his reputation … words written of a man which are likely to provoke him to commit a breach of the peace or, if seen by others, to hold him up to hatred, ridicule or contempt, or to damage his reputation.”

Thus the law as stated by Mansfield CJ in Thorley v Lord Kerry (1812) 4 Taunt 355 at 364 quoted in R v Wicks (supra) at 173 has remained the same. In conclusion, under the common law every defamatory libel may at the will of the person defamed be made the subject of either criminal or civil proceedings except that criminal prosecutions for libel in crime were discouraged by judges and juries when the libel complained of was of a trivial character. In my view, therefore, the origin of this offence even if confined to the Crown and its agents only has been extended to cover every citizen under the common law. No doubt the position in this country would be the same unless there was a legislative intervention, such as Act 29 to alter the position.

So the question now is whether Act 29 is entirely different from the common law. We will go back a wee bit to the predecessor of this Act 29, namely the Criminal Code, Cap 9 (1951 Rev). Section 263(1) and (2) of Cap 9 created the offences of negligent libel and intentional libel, respectively just as section 112(1) and (2) of Act 29; the only difference in the two legislations relates to the punishment. But significantly cases in which a person is guilty of libel as well as what constitutes defamatory matter as contained in Cap 9 were repeated verbatim in Act 29. Compare sections 264 and 265(1) of Cap 9 with section 114(1) of Act 29. Thus any interpretation given to these provisions under Cap 9 could be conveniently considered and applied under the provisions of Act 29 since they are in pari materia. It is the definition of defamatory matter which is in issue in this appeal. This is section 114(1) of Act 29 which provides:

“114. (1) Matter is defamatory which imputes to a person any crime, or misconduct in any public office, or which is likely to

[p.239] of [1995-96] 1 GLR 227 injure him in his occupation, calling, or office, or to expose him to general hatred, contempt, or ridicule.”

Counsel cited a number of decided cases to the High Court all of which were initiated by public officials. In R v Frimpong (supra) the complainant was the then Minister of Information; in State v Ahmad (supra) the complainant was a district magistrate; in Gyimah v The Republic (supra) the complainants belonged to the Ghana Armed Forces; in Badu v The Republic (supra) the complainant was a superior court judge. The complainants in all these reported cases were public officers. And with the exception of R v Frimpong (supra) which was tried under Cap 9, all the other cases were tried under Act 29. Before Cap 9 of 1951 the Gold Coast Criminal Code was the enactment in force. It was first enacted on 31 October 1892 and revised in 1936. Section 247(a) thereof created a similar offence. It reads: “A person is guilty of libel who, by print … unlawfully publishes any defamatory matter concerning another person, either negligently or with intent to defame that other person.” Section 248 thereof provided this definition:

“248. Matter is defamatory which imputes to a person any crime or misconduct in any public office, or which is likely to injure him in his occupation, calling, or office, or to expose him to general hatred, contempt, or ridicule.”

It is to be observed that this same definition was repeated verbatim in Cap 9, s 263(2) and also in Act 29, s 114(1). Thus as far as the legislation on criminal law in this country goes, the definition of defamatory matter has never been altered. Under Cap 9 (1936 Rev) these cases were decided: R v Wuta-Ofei (1947) 12 WACA 238; R v Akiwumi (1948) 12 WACA 340 and R v Brown (1949) 12 WACA 499. In all these cases too, the complainants were public officers, namely a senior veterinary officer, a police officer and two officers of the Public Works Department respectively. See also R v Badu (1944) 10 WACA 193 where the complainant was a police officer. It will appear then that in the history of this country every known prosecution for criminal libel has been at the instance of public officers.

But does that per se mean that the law is not applicable to private citizens? So far this point has not come up for an opinion, albeit obiter, in any of the known cases. But the advice of Lucie-Smith CJ who delivered the judgment of the West African Court of Appeal in the case

[p.240] of [1995-96] 1 GLR 227 of R v Akiwumi (supra) at 342 took cognisance of the fact that non-public officers might also take advantage of the law, even though this might pass for obiter since it was not in issue before the court. The court there said:

“The Editor of a newspaper has a very great responsibility towards the public but also and towards the private individual and should take every precaution to verify matter he proposes publishing. If he fails in these precautions through negligence or recklessness he does so at his own peril if the matter he publishes is defamatory to the individual.”

(The emphasis is mine.) That case was decided, as said earlier, under Cap 9 which contained a similar provision as the present Act 29. The advice or dictum quoted above was thus clearly referable to the provision of the Code and the court recognised that a private individual who was defamed could seek redress under the criminal law. I must emphasise that this dictum is no authority for the point in issue, I only referred to it to show that that court did not rule out the possibility of private individuals seeking redress under the criminal law of libel. Before the Criminal Code, 1892 the English Libel Act, 1843 was applicable to this country, being a statute of general application. The meaning of defamatory matter in that Act is almost similar to the 1892 Criminal Code and all subsequent legislations.

Now to the meat of this appeal which is the true construction to be placed on section 114(1) of Act 29. Section 3 of CA 4 provides that “punctuation forms part of an enactment and may be used as an aid to its construction.” It is to be noted that there are several commas in this definition which could serve as an aid to the interpretation or construction of the subsection. A close reading of the provisions there makes me think that the conjunction “or” used is very influential in any determination of the issue confronting us. If interpreted conjunctively it will mean only a single meaning can be ascribed to what defamatory matter is. If given a disjunctive construction it will mean one or many things can constitute defamatory matter. In my view, the latter construction will enable the court to carry out the intention .of the legislature since it is clear it did not intend only one factor, for instance imputation of crime, to constitute the meaning or definition of defamatory matter. It has not become necessary to read “or” in the

[p.241] of [1995-96] 1 GLR 227 definition to mean “and.” Read disjunctively and with the commas being used as an aid, I think the definition will read as follows: Matter is defamatory:

(i) if it imputes to a person any crime; or

(ii) if it imputes misconduct to a person in relation to a public office held by that person; or

(iii) if it is likely to injure a person in his occupation; or

(iv) if it is likely to injure a person in his calling; or

(v) if it is likely to injure a person in his office; or

(vi) if it exposes a person to general hatred; or

(vii) if it exposes a person to contempt; or

(viii) f it exposes a person to ridicule.

From this, it is my view that a person need only establish any one of the eight instances mentioned above in order to take the benefit of a prosecution under this law of libel for any one of them constitutes defamatory matter within the meaning of section 114(1) of Act 29.

Who then is a “person?” Without doubt the plain language of the subsection shows that public offices and the holders are protected by instance (ii) above, meaning that the other instances can apply to persons other than public officers. Having created a specific situation or instance for only public officers, the legislature must be deemed to have intended that the others not specifically referrable to public officers must take care of all other persons. I have been guided by the general rules of construction provided by section 4 of Act 29. These provide:

“4. The following general rules shall be observed in the construction of this Code, namely— (a) This Code shall not be construed strictly, either as against the State or as against a person accused of any offence, but shall be construed amply and beneficially for giving effect to the purposes thereof;

(b) In the construction of this Code, a Court shall not be bound by any judicial decision or opinion on the construction of any other enactment, or of the common law, as to the definition of any offence or of any element of any offence; and (c) The illustrations set out in this Code form part of the Code and may be used as aids to its construction, but

[p.242] of [1995-96] 1 GLR 227 they are not to be taken as limiting the generality of any of its provisions.”

Section 3 of Act 29 defines who a “public officer” and for that matter what a “public officer” is. It is to be seen that reading Act 29 as a whole, wherever the law maker intended a particular offence to relate to a public officer or public office he said so expressly, see generally sections 236-261 of Act 29. Wherever he created an offence to protect only public office holders he said so in no uncertain language: see for instance sections 205, 239(1), 241 and 252 of Act 29. Wherever an offence was created for only a segment of the population it was stated specifically. Wherever certain persons were to be excluded from prosecution for crimes he said so expressly. Thus, in my view, since Act 29 regulates most, it not all, criminal activities in the country, unless any person or group of persons was specifically excluded, every person is entitled to prosecute and is liable to be prosecuted for any offence created under Act 29.

I am fortified in this view by the definition, though inexhaustive, of a “person” provided by section 32 of CA 4 which defines a “person” to include an individual. The same section defines an individual to mean a natural person. No doubt the purpose of CA 4 is to facilitate the task of construing legislation in order to ascertain the true intention of the law maker. If only public office holders could prosecute under section 112(2) of Act 29 the law maker would have said so in no uncertain language just as it did in respect of other offences created to protect only public officers some of which I have already mentioned. By definition in section 114(1) of Act 29 “public officer” rather than “a person “ would have been used. In my view, on a true construction of sections 112(2) and 114(1) of Act 29 the offence of intentional libel can be committed against not only public officers but also against any individual called a natural person as distinct from a corporation.

It is my view that the fact that throughout the history of the criminal law of this country no prosecution has been undertaken by or on behalf of a private citizen does not establish the fact that the law is there for only public officers to take advantage of. The language of the legislation being clear, one is not to conjecture reasons why other citizens have not taken advantage of the law to mount criminal prosecution for libel. It is wrong to tag the interpretation of an enactment on persons who have so far taken advantage of it. I therefore

[p.243] of [1995-96] 1 GLR 227 reject the submission of counsel for the appellants on this.

Counsel for the appellants also made reference to section 117(1) of Act 29 which deals with when publication of defamatory matter is absolutely privileged. He outlined the situations mentioned therein and said they all relate to public offices or institutions. The obvious inference being that this is a public order offence. I disagree with this, for section 117(1)(g) and (h) of Act 29 do not refer to any public offices or institutions. They provide:

“117 (1) The publication of defamatory matter is absolutely privileged, and no person shall under any circumstances be liable to punishment under this Code in respect thereof, in any of the following cases, namely—

(g) if the person publishing the matter is legally bound to publish it; or

(h) if the matter is true, and if it is found that it was for the public benefit that the matter should be published.”

It must be emphasised that something done for the public benefit is not for public officers only but everybody in the country. Section 1 of Act 29 says that:

“expressions referring to ‘the public’ refer not only to the citizens of the Republic as a whole but also to the persons inhabiting or using any particular place or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct with reference to which the expressions are used.”

Thus “the public benefit” as used in section 117(1)(h) of Act 29 is not intended to indicate that libel is a public order offence. The insertion of section 117(1) (g) and (h) of Act 29 clearly shows that a defence could avail an accused even if the offence was not committed against a public office, institution, or holder so long as he can lead satisfactory evidence to prove that he had a legal duty to publish what he did publish or that what he published was true and was also for the public benefit. The attempt to say the defences provided under section 117 of Act 29 confirm the assertion that only public officers can secure prosecution under this law of criminal libel is thus untenable.

Let me briefly refer to section 116 of Act 29 since all we are doing

[p.244] of [1995-96] 1 GLR 227 is to interpret the legislation as a whole to find the true intention of the law maker. It reads: “116. Any publication of defamatory matter concerning a person is unlawful, within the meaning of this Chapter, unless it is privileged on one of the grounds hereafter mentioned in this Chapter.” (The emphasis is mine.) Here again the law maker uses “a person” instead of a “public officer.” A clear distinction has been maintained throughout Act 29 between “a person” as referring to any individual and a “public officer”, a distinct group of persons as defined by Act 29. This section 116 of Act 29 read alongside sections 114(1) and 117(1)(g) and (h) of Act 29 will leave no doubt that the law maker did not intend public officers only but any individual. As Lord Radcliffe observed in Attorney-General for Canada v Hallet & Carey Ltd [1952] AC 427 at 449, PC: “. . . the paramount rule remains that every statute is to be expounded according to its manifest or expressed intention.” Evershed MR also stated the principle quite clearly when he said in the case of Prince Ernest of Hanover v Attorney-General [1956] Ch 188 at 201 that “. . . the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded ‘according to the intent of them that made it.”’ For this exercise where the words used are unambiguous this intention is best declared by the words themselves. In this case, the words used are clear and require no other rules of construction.

Counsel for the appellants argued that it could not have been the intention of the legislature that every conceivable libel should be prosecuted and somebody sent to jail. This argument is fundamentally untenable for the same argument could be up for every offence created under Act 29, for instance assault, stealing, breach of the peace, etc. Was it the intention of the law maker that every assault, stealing, etc should be prosecuted and somebody sent to jail for it? Every prosecution requires somebody to initiate it by way of a complaint, for instance. Yet it is only those cases which are actually investigated and then prosecuted which come before the courts and for which somebody may be punished for infraction of the law. And so the fact that many persons may be caught under a law and punished does not justify a court in departing from the clear language of the law to limit the extent of its applicability. So too the effect of a law, however severe it may be, does not call for an interpretation that defeats the intention of the legislature as expressed in the clear language of the enactment. In this

[p.245] of [1995-96] 1 GLR 227 vein Lord Greene MR rightly said in Re Robb’s Contract [1941] Ch 463 at 478, CA that if the language of a statute is clear, it must be enforced though the result may seem harsh, or unfair and inconvenient. Thus whatever may be the consequences, effect must be given to the clear and explicit language used for that expresses the intention of the legislature. See also Warburton v Loveland (1831) 2 D & C1 480 at 489, HL per Tindal CJ. It is not part of the court’s duty to go behind what has been enacted to find out how it came to be made that every conceivable libel could be prosecuted in crime.

Another point raised by counsel for the appellants in support of his argument was that this was a public order offence. Indeed, it ran through his argument. Public order offences, like any other offences, are not restricted to public officers. By their very nature public order offences like treason, riot, piracy, etc are offences in which every citizen has an interest for without order nobody can go about his normal activity in the society. Hence it is fallacious to suggest that because public officers are the only persons who could initiate prosecution of particular offences they are necessarily public order offences. On the contrary any person at all can be a complainant in the offences set out in sections 180-261 of Act 29 which offences could properly be described as public order offences.

Counsel’s argument appears to be based on the common law libel which the English follow. It was considered a public order offence because of its tendency to disturb the peace of the community. In the words of Lush J in R v Holbrook (1878) 4 QBD 42 at 46 libel is ranked among criminal offences “because of its supposed tendency to arouse angry passion, provoke revenge, and thus endanger the public peace. . .” But as I pointed out earlier, notwithstanding the view taken by the English courts, criminal libel in England has always been available to private individuals. So that if we have to follow the common law precedents (which we are not enjoined to do, see section 4(b) of Act 29), then it makes our task easier by saying the law on criminal libel is available to every individual in this country.

Also I have referred to the Libel Act, 1843 which defined libel so counsel for the appellants’ submission that the English have no statutory definition but only follow the common law is incorrect. It will be appreciated therefore that before 24 July 1874, the cut-off date fixed by section 14 of the Supreme Court Ordinance, 1876 for the statutes of

[p.246] of [1995-96] 1 GLR 227 general application to be effective in this country when it obtained its own local legislature, the Gold Coast criminal law on libel followed the common law position which entitled even private citizens to be complainants and have the benefit of libel prosecution. Between 24 July 1874 and the enactment of the Criminal Code of 31 October 1892, also numbered as Cap 9, the English Libel Act, 1843 applied and that legislation also entitled private citizens, just like public officers, to be complainants in criminal libel. The definition of defamatory matter which as I said earlier Mansfield CJ stated in Thorley v Lord Kerry (supra) was accepted by the English Court of Criminal Appeal and I quoted from R v Wicks (supra) thereby blurring any distinction between what is defamatory matter in both the criminal and civil law. Words which were likely to expose a person to public hatred, contempt or ridicule or to damage his reputation were held in R v Wicks (supra) to ground cause for prosecution in libel even by private citizens.

R v Wicks (supra) is not binding on us but is of persuasive value in the sense that the definition contained expressions similar to our own Act 29. I am mindful of the fact that section 4(b) of Act 29 enjoins us to interpret the Act without being bogged down by any external interpretation or precedent. Indeed, that is the cardinal rule of interpretation of every statute, but precedents elsewhere have always been cited, if found useful as a guide, in the interpretation of our own legislation. Thus in looking at the history of this law in this country from the Gold Coast days up to date I have found no private citizen has been a complainant in criminal libel cases. This is a mere historical coincidence and not because the law did not take care of private citizens. At least I have demonstrated that it was available to them under the common law up to 24 July 1874 and by virtue of the Libel Act, 1843 up to 31 October 1892. And in the definition of defamatory matter both the common law and the judicial authorities used expressions like exposing a person to public hatred, contempt, ridicule which have reappeared in all the legislations of this country, namely the Criminal Code, 1892 (Cap 9), Cap 9 (1936 Rev), s 248(1), Cap 9 (1951 Rev), s 265(1) and Act 29, s 114(1). In my opinion, the law has always been the same in this country and Act 29 is not different from what obtained before it.

Earlier on, I referred to a dictum in the case of R v Akiwumi (supra) where the West African Court of Appeal did not rule out the possibility

[p.247] of [1995-96] 1 GLR 227 of the private individual being a complainant in criminal libel prosecution. Their lordships were mindful of earlier cases in all of which the complainants were public officers. Also the text writer, Twumasi, in his Criminal Law in Ghana at p 295-296 takes a similar view. At page 295 after he had set out the right of free speech and expression as enshrined in the then Constitution, 1969 similar provisions of which exist in the present Constitution, 1992 he went on to state that: “One of the legal devices for ensuring that this right of the individual is not abused is the enactment of the crime of libel.” He uses the word “individual” for “person” as opposed to “public officer.” The learned writer was aware of the existing cases all of which had public officers as complainants: see page 296-301. In my opinion, both the dictum in R v Akiwumi (supra), though obiter, and the view of Twumasi are right.

In conclusion, I am of the opinion that section 112(2) of Act 29 is an offence which is available to every individual who is defamed in libel and is not restricted to only public officers. I accordingly dismiss the appeal and order the trial to proceed at the circuit court.

JUDGMENT OF ESSILFIE-BONDZIE JA.

I agree with the judgment read by my brother Benin JA. I will however say a few words in support.

The appellants were charged together with two counts of intentional libel contrary to section 112(2) of the Criminal Code, 1960 (Act 29) before the circuit court.

The particulars of offence with regard to count one read:

“Tommy Thompson Books Ltd, Tommy Thompson, Director, Tommy Thompson Books Ltd, Eben Quarcoo, Editor, Free Press with intent to defame Nana Konadu and expose her to contempt did publish in the Free Press of 30 December 1994 to 5 January 1995, a defamatory article imputing to her a commission of a crime of smuggling of gold that ‘Nana Konadu is believed to have carried gold to Europe on some unannounced trips.’”

The particulars of offence of count two also read:

“Tommy Thompson Books Ltd, Tommy Thompson, Director, Tommy Thompson Books Ltd, Eben Quarcoo, Editor, Free Press, with intent to defame Nana Konadu and expose her to contempt did publish in the Free Press of 30 December 1994 to 5 January

[p.248] of [1995-96] 1 GLR 227

1995 a defamatory article imputing to her a commission of a crime of dealing in narcotic drugs that ‘Even cocaine deals have been alleged.’”

On 28 July 1995 when the appellants appeared before the circuit court, counsel for the appellants raised a preliminary objection to the trial. He contended mainly that the offence of criminal libel is a public order offence which is designed to protect the reputation of public officers against irresponsible comments in the interest of good governance. And that since the complainant is not a public officer she cannot seek protection under the provision of Act 29. In other words, that the court had no jurisdiction to try the accused persons.

By a ruling of the circuit court dated 7 August 1995, the preliminary objection was overruled. The appellants subsequently challenged the ruling of the circuit court on an appeal to the High Court presided over by Apaloo J. After hearing submissions from both sides the learned High Court judge also dismissed the appeal. He said, inter alia, as follows:

“In the circumstances of the case, I hold that an action in libel may be against any person initiated by a person whether in public office or not under section 112(2) of Act 29. And I hereby declare that on a true and proper interpretation of section 112(2) of Act 29 any member of the public, whether in public office or not, can initiate criminal libel against a publisher if that person felt libeled by any article so published.”

The appellants were dissatisfied with the ruling of the High Court dismissing the appeal and have appealed to this court on the following ground:

“The High Court, Accra repeated the error of law into which the trial court the Circuit Court, Accra coram Judge Doegah, fell by holding that a person who is not a public officer can lay a criminal complaint under section 112(2) of the Criminal Code, 1960 (Act 29) and that therefore the Circuit Court, Accra has jurisdiction to try the appellants, when the complainant is not a public officer, which error or law has occasioned the appellants a substantial miscarriage of justice.”

In his submission, Nana Akufo-Addo argued that section 112(2) of

[p.249] of [1995-96] 1 GLR 227

Act 29 under which the appellants are charged creates an offence referable only to public officers. And that there was no intention to criminalise all libelous publications. Counsel argued that the manner in which section 112(2) of Act 29 has been worded indicated that criminal libel is a public order offence, secondly, that all the cases mounted in criminal libel were initiated at the instance of public officers and that our criminal jurisprudence has no precedent in criminal libel initiated at the instance of a person who is not a public officer. Learned counsel’s objection to the jurisdiction of the court is that since the complainant in this case is not a public officer complaint laid by her should not ground a charge under section 112(2) of Act 29. He urged the court to uphold the objection on the ground that the charge so laid is bad in law.

Mr Ahlijah, Chief State Attorney, has resisted the objection. He referred to sections 113 and 114(1) of Act 29 and contended that the provisions of the sections do not refer to public officers only and that any person can be criminally libeled. He urged that in Act 29 a person is a person and not a public officer. That a person exists before he becomes a public officer. He said that the interpretation put on the word “person” by Nana Akufo-Addo amounts to a discrimination against the citizenry of this country, ie a libel will not attract sanctions unless you are a public officer and that will not be a proper interpretation of the law. Counsel maintained that in interpreting the statute, the language of the enactment should be our guide. The intention of the legislature is to protect the citizenry from libel. Counsel therefore invites the court not to disturb the ruling of the circuit court.

Section 112(2) of Act 29 under which the appellants were charged provides: “(2) Whoever is guilty of intentional libel shall be guilty of a misdemeanour.” What constitutes libel is contained in section 113 of Act 29. It reads:

“113. A person is guilty of libel, who, by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, either negligently or with intent to defame that other person.”

(The emphasis is mine.) Section 114(1) of Act 29 which defines a

[p.250] of [1995-96] 1 GLR 227 defamatory matter says:

“114. (1) Matter is defamatory which imputes to a person any crime, or misconduct in any public office, or which is likely to injure him in his occupation, calling, or office, or to expose him to general hatred, contempt, or ridicule.”

An examination of the matters canvassed before us reveals that the issue here is one of interpretation and the construction to be placed on the word “person” appearing in sections 113 and 114(1) of Act 29.

In considering the cardinal rules governing the interpretation and construction of statutes, one cannot help but refer to the classical case of Warburton v Loveland (1831) 2 D & Cl 480 at 489, HL where Tindal CJ stated the principles as follows: “Where the language of the Act is clear and explicit, we must give effect to it, whatever may be the consequences; for in that case the words of the statute speak the intention of the Legislature,” The inference here is that it is not open to the court to go behind what has been enacted. The judge’s duty is to give effect to the ordinary and literal meaning of the words according to the context in which they are used. The literal meaning is not necessarily the dictionary sense but the sense in which words are used by the ordinary people, ie the popular sense. See also Tuffuor v Attorney-General [1980] GLR 637 at 641, CA sitting as SC.

Applying the principles to the case under review, it must be noted that the words which constitute the offence of libel as stated in section 133 of Act 29 are clear and unambiguous. The word “person” appearing in sections 113 and 114(1) of Act 29 and the word “whoever” appearing in section 112(2) of Act 29 includes a person in public, an individual or any person in any occupation or calling. There is nothing in these sections which demonstrates that only public officers can initiate prosecutions for libel. It is my view that any attempt to construe “a person” as meaning a public officer will be to invite the court to journey into the realm of speculation. Besides, if the legislature intended the word “person” in sections 113 and 114(1) of Act 29 to mean a public officer only, it would have expressly said so.

I do not share the view of learned counsel for the appellants that section 112(2) of Act 29 creates a public order offence which is designed to protect the reputation of public officers only. It is my further view that section 112(2) of Act 29 was designed not only to

[p.251] of [1995-96] 1 GLR 227 protect the reputation of public officers but also individuals. This view was echoed by the case of R v Akiwumi (1948) 12 WACA 340 at 342 where the court declared that:

“The Editor of a newspaper has a very great responsibility towards the public but also towards the private individual and should take every precaution to verify matter he proposes publishing. If he fails in these precautions through negligence or recklessness he does so at his own peril if the matter he publishes is defamatory to the individual.”

In this case, the combined effect of sections 112(2), 113 and 114 of Act 29 is that an action in libel can be initiated by any individual whether in public offence or not. It is my judgment that on a true and proper construction of section 112(2) of Act 29 the complainant in this case has a legal right to initiate a criminal libel against the appellants if she felt libeled by any article published by them. In the result, I hold that the circuit court has jurisdiction to try the appellants for an offence under section 112(2) of Act 29. The appeal is dismissed accordingly.

JUDGMENT OF SAPONG JA.

I agree.

DECISION

Appeal dismissed.

JNNO