Rex V. Emmanuel Addutei Brown (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Libel—Privilege–Non-direction.

In a trial for libel contrary to section 246 (2) of the Gold Coast Criminal Code the trial Court must specifically direct itself (or the jury or assessors) on the question of privilege.

Case referred to :

(1) R. v. Peter Mba, 3 W.A.C.A. 190.

Appeal from the Supreme Court of the Gold Coast.

Crabbe for Appellant.

McKeon, Crown Counsel, for Crown.

The following judgment was delivered:

Windsor-Aubrey, J. In this case the appellant was convicted on two counts of libel: contra section 246 (2) of the Criminal Code. He was convicted of publishing libels against Albert Fowkes, an Inspector of Works of Public Works Department, and against Joseph Agoe Antah, Head Mason, of the same Department.

Counsel for the appellant has confined himself to arguing this appeal on the additional grounds filed on the 20th September, 1949. These grounds assert that the learned trial Judge failed to direct himself on the question of privilege covering the transmission of petitions to superior officers. The issue of privilege is raised under section 252 (9) of the Criminal Code.

At the trial the appellant was not represented by Counsel and did not expressly raise the defence of privilege, but, none the less, the following passage (inter alia) from his evidence clearly shows that privilege was an issue in the case:

” I did dictate to Mr. Kotei words about Mr. Fowkes’ car on the lines of those in paragraph 5 of Exhibit ” A “. I got the information from Antah. . . . I say that I pointed out stolen Public Works Department property to the police and I have witnesses to prove this.

” I pointed out some 3 x 4 posterns and also some iron bars which he took from the Public Works Department, and also a moulding box.”

The appellant also called witnesses to establish his good faith, namely, Musa Fulani and Emmanuel Odartey Hammond.

The alleged libels are contained in Exhibit ” A ” and the Court entertai s no doubt that the appellant caused them to be published. The Court is also satisfied that the allegations contained in Exhibit ” A ” are untrue, and that they would constitute serious libels on both Mr. Fowkes and Mr. Antah, unless the defence of privilege, namely, that the defamatory matter was published in good faith, is successfully raised or adequately dealt with.

The record contains no note of the summing-up and the judgment of the learned trial Judge is entirely silent on the issue of privilege. We are bound by the record and cannot conjecture as to what the Judge said in his summing-up. Had the record contained notes on the summing-up dealing with the question of privilege, the absence of any reference to this point in the judgment would be less prejudicial to the validity of the conviction.

It is to be observed that the learned trial Judge found the appellant guilty of the offence charged and the most material parts of his judgment are as follows:

” Upon consideration of the evidence called by the Crown and by the defence, I am satisfied beyond all reasonable doubt that the accused is in fact guilty of the offence with which he has been charged.

” My reason for arriving at this conclusion is that I believe the evidence given by the witness Fowkes and also that of the witness Antah, which the defendant di not seriously challenge. . . . That Exhibit ” A ” is libellous, there can be no doubt.”

We have to consider whether, in view of this finding that the appellant was guilty of the offence charged and that Exhibit ” A ” is libellous, it can be held that the learned trial Judge must have properly directed himself on the issue of privilege.

It has been submitted that a finding that a document is libellous presupposes that the defence of privilege has been considered and rejected because otherwise the Judge could not have found the appellant guilty of libel. At first sight this argument appears tenable; but if that submission is accepted it would be equally arguable that on a conviction of murder, it must always be assumed that a Judge has disposed of any possible issue of provocation or other circumstances reducing such a crime to manslaughter although he makes no reference to manslaughter in his summingLup or judgment. But the law is that on a murder charge, if an issue of provocation is raised by the evidence, the Judge must specifically direct himself and the jury on this issue and the absence of such direction is fatal. The same principle would seem to apply on an issue of privilege and the absence of direction thereon to be equally objectionably_ Consequently on this ground we cannot support the judgment. We would add that the definition in section 247 of the Criminal Code of what constitutes a libellous publication, containing as it does no reference direct or indirect, except by the use of the word ” unlawful ” (the significance of which is explained in section 250), to the possible defence of privilege, is apt to be misleading.

Counsel for the appellant has referred us to Ordinance No. 8 of 1947, section 3, sub-section (2), which amends section 286 (2) of the Criminal Procedure Code, and prescribes the essential requirements of a judgment in a criminal trial on indictment which is tried with assessors. The section as amended reads as follows:—

” The Judge shall then give judgment, and in so doing shall not be bound to conform with the opinion of the assessors but he shall record his judgment in writing and in every case such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the Judge at the time of pronouncing it.”

We note that other sections also of the Criminal Procedure Code have been amended by the same Ordinance statutorily requiring any Court on a summary trial, where necessary (section 163), and the Supreme Court in its appellate jurisdiction in every case (section 320 (2) ) to record reasons for their judgments. These comparatively recent amendments to our legislation clearly show the importance attached to the recording by the Courts of the grounds for their decisions and we would emphasise the necessity as well as the desirability of compliance with these statutory requirements in all cases.

Section 286 (2) (which is material in this case) and section 320 {2) both require that the judgment shall contain (inter Wits) the point or points for determination, the decision thereon, and the reasons for the decision.

We consider that in this case, in view of the defence, a point for determination was whether the alleged libel was made in good faith, and secondly that, if the libel was not made in good faith (which the Judge might well have found had he dealt with the point) the reasons for rejection should be recorded. The judgment states neither the point for decision nor the reasons for rejection and it is impossible for us to infer from it that the point was ever considered by the Court.

Finally, Counsel for the appellant has referred us to the decision in Rex v. Peter Mba (1) which is also a criminal libel case somewhat similar to the one we are now considering. The headnote reads as follows :-

“Held: There being no finding by the trial Judge that appellant published the defamatory matter knowing it to be false, conviction quashed and Court refused to exercise its discretion under section 11 (2) of the West African Court of Appeal Ordinance, 1933.”

It appears on examining the records of that case that the conviction was quashed on the grounds that, although the question of the good faith of the accused was in issue, the Judge made no finding as to the accused’s knowledge of the falsity of the matter published. A further ground for quashing the conviction was that the trial Judge had not directed, himself on the question of conditional privilege and had made no finding thereon.

There is nothing on record in the present case to show that the trial Judge ever directed himself or the assessors on the issue of privilege, and he made no finding on that essential point. In the circumstances we do not think the conviction can stand.

The appeal is allowed, the conviction and sentence set aside, and it is directed that a judgment and verdict of acquittal be entered. The appellant is to be released forthwith.

Appeal allowed.