Yanni v Sierra Leone Daily Mail (CIVIL CASE 54 of 1965) [1967] SLSC 1232 (31 March 1967)

YANNI v. SIERRA LEONE DAILY MAIL, 1967-68 ALR S.L. 97 S.C. YANNI v. EDITOR AND PROPRIETORS OF SIERRA LEONE DAILY MAIL and MACAULAY SuPREME CouRT (Marke, J.): March 31st, 1967 (Civil Case No. 54/65)

[1] Tort- damages- measure of damages- defamation- defendant's whole conduct including conduct in court to be considered: In assess ing damages in a defamation action, the court may look at the whole conduct of the defendant, before action, after action and in court during trial (page 107, lines 25-27).

[2] Tort-defamation-damages-measure of damages-defendant's whole conduct including conduct in court to be considered: See [1] above.

[3] Tort-defamation-defamatory statements-statements imputing moral obliquity-statement that prosecution instituted for political reasons defamatory: A statement that a person instituted a prosecution for political reasons is capable of a defamatory meaning (page 101, lines 1-3).

[4] Tort-defamation-fair comment-comment not to misstate facts, or convey evil imputations except as facts truly stated warrant: To sup port a defence of fair comment in an action for defamation, the com ment must not misstate facts, or convey evil imputations except so far as the facts truly stated warrant them (page 104, lines 34-38).

[5] Tort-defamation-functions of court-trial by judge alone-judge to determine whether words capable of defamatory meaning and whether they have it in fact: A judge trying a defamation action without a jury must first decide whether the words complained of are capable of bearing a defamatory meaning in the circumstances of the case, and if he so holds must then consider whether the words in fact bear that meaning (page 100, line 37-page 101, line 6).

[6] Tort-defamation-objective test-disparagement should be in eyes of reasonable man: In deciding whether words alleged defamatory bear a defamatory meaning in fact, a judge trying a defamation action without a jury should consider whether an ordinary reasonable man to whom the words were published would say that the plaintiff was disparaged by them, or, would be likely to understand them in a defamatory sense (page 101, lines 4-13). The plaintiff brought an action against the defendants in the Supreme Court for damages for libel. The plaintiff was a former senior employee of the Sierra Leone Produce Marketing Board. The third defendant was the Attorney General at the material time, and the first and second defendants were the editor and proprietors respectively of the newspaper in which the alleged libel was published.

1 S.L.-4

Early in October 1964, according to the plaintiff's evidence, he and a senior C.I.D. officer named Wray were taking a statement from one Nylander, a contractor to the Board, when they were interrupted by persons working in association with a senior officer 5 of the Board named French. Nylander then instituted a private prosecution against the plaintiff. He swore an information stating that Wray and the plaintiff offered him money to make a false statement for the purpose of instituting criminal proceedings against French, J abatti the Managing Director 10 of the Board and Chief Gamanga its Chairman. The summons alleged that the money was paid to Nylander to enable him to prefer a false charge against J abatti. On October 7th the third defendant entered a nolle prosequi in this prosecution. In the middle of October, the plaintiff wrote to the third defendant 15 alleging certain irregularities on the part of senior officials of the Board, and stating that he had brought these irregularities to the notice of the Minister in whose portfolio the Board was. The third defendant did not reply. On January 5th, 1965, the plaintiff instituted a private prosecution 20 against the Minister, Chief Gamanga, Jabatti and two other officials of the Board for conspiracy to conceal a crime, and other offences. The third defendant entered a nolle prosequi in the prosecution and on January 9th published an article intended to justify this step, which contained the statement complained of. 25 The article was headed "The A.-G. Speaks" and stated, inter alia, that persons with political interests had unwittingly sought to embar rass the investigation of the affairs of the Board by the Law Officers and the police, and had in one case instituted a private prosecution against a senior police officer and a one-time senior employee of 30 the Board, in which the Attorney-General had entered a nolle prosequi on October 7th, 1964. The article went on to state that ". . . now apparently again for political reasons, the said senior employee" had instituted a private prosecution against those connected with the private prosecution against him. That was the statement com- 35 plained of in the present proceedings. The first and second defendants denied that they published the words complained of falsely or maliciously, and pleaded privilege and relied on the Defamation Act, 1961, s.10. The third defendant admitted publication but denied that the words complained of were 40 capable of any libellous or actionable meaning, and pleaded fair comment.

YANNI v. SIERRA LEONE DAlLY MAIL, 1967-68 ALR S.L. 97 S.C. In reply to the defence of the first and second defendants, the plaintiff denied that the occasion was privileged and alleged that they did not honestly believe the words complained of to be true, and in the alternative that they acted with actual malice and that they refused to publish a statement of explanation or contradiction at his request. In reply to the defence of the third defendant, he denied that the publication was fair comment and alleged that it was made on false assertions of fact, and alternatively that the third defendant was actuated by malice. There was no evidence that the plaintiff instituted his private prosecution for political reasons or that the defendants were con nected with Nylander's prosecution against him. There was no evidence of malice on the part of the first and second defendants or that they did not publish the plaintiff's statement of explanation or contradiction. Cases referred to :

(1) Capital & Counties Bank, Ltd. v. George Henty & Sons (1882), 7 App. Cas. 741; [1881-5] All E.R. Rep. 86, dictum of Lord Selborne applied.

(2) Joynt v. Cycle Trade Publishing Co., [1904] 2 K.B. 292; (1904), 91 L.T. 155, applied. Statute construed : Defamation Act, 1961 (No. 32 of 1961), s.lO: "(1) Subject to the provisions of this section, the publication in a newspaper of any such report or other matter as is mentioned in the Schedule to this Act shall be privileged unless the publication is proved to be made with malice.

(2) In an action for libel in respect of any such report or matter as is mentioned in Part II of the Schedule to this Act, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of exp~anation or contradiction, and has refused or neglected to do so .... Schedule, Part II, s.12: "A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or ?,n behalf of any government department, officer of state . . . or Gelaga-King for the plaintiff; D.E.F. Luke for the first and second defendants; D.M.A. Macaulay, Sol.-Gen. and Okeke, Crown Counsel for the third defendant.

MARKE, J.: The plaintiff in this action is seeking damages for alleged libel written of and concerning him by the third defendant and published by the first and second defendants in the Sierra Leone Daily Mail 5 newspaper for January 9th, 1965. The first and second defendants in their statement of defence denied that they falsely and maliciously printed the words complained of. They have pleaded qualified privilege, and rely on s.lO of the Defamation Act, 1961. 10 The third defendant in his statement of defence admitted that he wrote and published the words complained of but denied that the words were capable of any libellous or actionable meaning. He averred that the words were a fair and bona fide comment made in good faith and without malice "on facts truly stated in the said 15 Daily Mail publication on January 9th, 1965" which were matters of public interest. In para. 5 of the statement of defence, the third defendant pleads as follows : "5. In so far as the said words consist of allegations of fact they are true in substance and in fact and in so far as they 20 consist of expressions of opinion they are fair comment, made in good faith and without malice upon the said facts, which are matters of public interest." Then follow particulars of statements of fact. In his reply to the defence of the first and second defendants, the 25 plaintiff alleged that the occasion was not a privileged one, that the first and second defendants did not honestly believe the words complained of to be true, and in the alternative that the first and second defendants acted with actual malice. Then follow particulars of the alleged malice. 30 In his reply to the third defendant, the plaintiff denied that the publication was a fair or bona fide comment and alleged it was made on false assertions as to matters of fact, and in the alternative alleged that the third defendant was actuated by malice in writing and publishing the words complained of. Then follow particulars 35 of the alleged malice. Upon these pleadings issue was joined. The first duty of the court is to consider whether the words complained of are capable of bearing a libellous meaning. Here there are no innuendoes. The words used are ordinary English 40 words. Taking the words complained of in their natural and ordinary meaning and also the circumstances in which they were

YANNI v. SIERRA LEONE DAILY MAIL, 1967-68 ALR S.L. 97 S.C. published, to say of anyone that he instituted a prosecution for political reasons could in my opinion make the words capable of bearing a libellous meaning. Having held that the words are capable of a defamatory meaning, it is for me, sitting as a jury, to consider whether the words in the 5 circumstances of the case in fact bear that meaning-in other words, whether the ordinary reasonable man on reading those words would say that the plaintiff had been disparaged thereby. Or, as Lord Selborne said in Capital & Counties Bank, Ltd. v. George Henty & Sons (1) (7 App. Cas. at 745; [1881-5] All E.R. Rep. at 89)- 10 "whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense." To enable one to say whether the plaintiff has been defamed, the whole article in Exhibit 2 should be read. The article contains 15 12 paragraphs. The first two may be considered introductory, and at the end of the second appear the words "the statement reads," which make it not unlikely that those two paragraphs may not have been written by the third defendant. But nothing turns on that, nor on paras. 3, 4, and 5, which contain general rema;rks on ss.73 and 20 74 of our 1961 Constitution on the powers of the Attorney-General to institute or discontinue criminal proceedings against any person or authority. Paragraph 6 states that the affairs of the Sierra Leone Produce Marketing Board had for some time been investigated by the Law 25 Officers and the police but that those officers had been "embarrassed" in their investigations by "those with political interests," and gives as an example the case of a private prosecution instituted against a senior employee in which on October 7th, 1964, the Attorney- General entered a nolle prosequi. 30 Paragraph 7 contains the words complained of and the remaining paragraphs (8-12 inclusive) attempt to justify the Attorney-General's action in entering a nolle prosequi in the private prosecution insti tuted by the plaintiff. No names were mentioned in the article in Exhibit 2 part of which 35 contained the words complained of. But the plaintiff's witness Joseph Hadson Taylor testified before me that when he read Exhibit 2 and the article headed "The A.-G. Speaks" he knew that the words "the said senior employee" in the article referred to the

Coming now to what would be the natural and ordinary meaning

of the words complained of, to the ordinary reasonable man, it must be conceded that it is the duty of every citizen who sees or knows that a crime is being committed or has been committed, to bring such fact to the notice of the police or the Law Officers for the sole 5 purpose of bringing to justice the perpetrators of such crime. But there is a distinction with a difference between the citizen who from a genuine belief in the guilt of another, and for the sole purpose of bringing that person to justice, institutes a criminal prosecution against such a person, and the other type of citizen, in quite a 10 different category, who from indirect and improper motives institutes a criminal prosecution against someone without any belief in such person's guilt. Citizens in this category who institute such criminal prosecutions, when found out have been the objects of the hatred and contempt of the members of the society in which they live. 15 They are, in short, scorned and avoided by their friends and can find no place in decent society. Into this category the words complained of have placed the plaintiff, particularly the words-"And now apparently again for political reasons, the said senior employee . . . ." In my view any 20 ordinary reasonable person reading the article in Exhibit 2, on reading para. 7 thereof which contains the words complained of, might feel that the plaintiff had no genuine belief in the guilt of the person against whom he instituted his prosecution, but did so in order to secure some political end. This would disparage the 25 plaintiff, not only in the eyes of all who knew him before the words complained of were published, but also in the eyes of anyone reading that article. The plaintiff's witness Mr. Hadson Taylor said in his evidence that he was a good friend of the plaintiff and they both exchanged visits, but after reading the words complained of he felt 30 that the plaintiff was a mean and dishonourable person and he broke up the very friendly relationship that had previously existed between them. Performing now the functions of a jury, I find that the words complained of were a libel on the plaintiff and exposed him to hatred and contempt. 35 The third defendant has also pleaded the defence of fair comment or, to quote the relevant paragraph in his statement of defence- "4. The words complained of are fair and bona fide comment made in good faith and without malice on facts truly stated in the said Daily Mail publication of January 9th, 40 1965 which are matters of public interest." From the evidence before me, there was a private prosecution

YANNI v. SIERRA LEONE DAILY MAIL, 1967-68 ALR S.L. 97 S.C. against the plaintiff and a senior member of the Criminal Investigation Department called Wray on October 6th, 1964. That obviously was the private prosecution referred to in para. 6 of Exhibit 2, in which the article states : " ... but those with political interests have unwittingly sought 5 to embarrass the professional investigation by the Law Officers (with the assistance of the police) and, in one case, instituted a private prosecution against a senior police officer and a onetime senior employee of the Board. I therefore decided on October 7th, 1964 to enter a nolle prosequi in that case." 10 The person referred to in the quotation from para. 6 of Exhibit 2 as having instituted a private prosecution was one Cosmo Nylander. The third defendant put in evidence as Exhibit 5 the case file of that prosecution. The plaintiff gave evidence that Cosmo Nylander was a contractor of the Board. After reading through Exhibit 5, I 15 can find no evidence to justify the statement in para. 6 of ·Exhibit 2 that Cosmo Nylander was one of those with political interests who were embarrassing the Law Officers and the police in their professional investigations into the affairs of the Board. Paragraph 7 of Exhibit 2 opens with these words: "And now 20 apparently again for political reasons, the said senior employee . . . ." These words suggest that the plaintiff instituted his private prosecution for political reasons just as Cosmo Nylander did in bringing his own private prosecution against the plaintiff and another. On October 16th, 1964, the plaintiff wrote a letter, Exhibits 1 and 25 IA, to the third defendant. In that letter the plaintiff went into some detail about the happenings in the affairs of the Board, relating how some senior Board officials were using materials and workmen of the Board for their own private purposes, such as erecting houses and a mosque for them. The plaintiff stated in that letter that he 30 had brought these irregularities to the notice of the Minister in whose portfolio the Board was. I am bound to hold that the third defendant received this letter, as it was allowed to go in evidence without any objection. However, there is no evidence that the third defendant sent a reply to 35 the letter, or even an acknowledgment of its receipt. On January 5th, 1965, the plaintiff instituted criminal proceedings against Salia Jusu Sheriff and Paramount Chief Kenewa Gamanga for conspiracy to defeat the ends of justice by concealing a crime; and also against S.A. Jabatti, T.N.V. Stevens and P.A. Jarrett Thorpe 40 for conspiracy to libel and incitement to libel.