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Rex V. Akiyemi Akiwumi (1948) LJR-WACA

Rex V. Akiyemi Akiwumi (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Criminal Libel—Gold Coast Criminal Code, sections 246 (1),247, and 248—Necessity for proof of negligence—Gold Coast Criminal Code,section 250—Privilege—Gold Coast Criminal • Code, sections 251, 252 (10)and 253.

In a prosecution for criminal libel under the Gold Coast Criminal Code, it is not necessary to prove negligence on the part of the accused.

Privilege is destroyed by an accused’s failure to take reasonable care to ascertain if the matter complained of be true or false.

Per curiam: A newspaper Editor has a very great responsibility towards the public 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.

Cases referred to:

  1. R. v. Joiner, 4 Cr. App. R. 64; 74 J.P. 200; 26 T.L.R. 265.
  2. R. v. A kinpelu Ajani & Ors., 3 W.A.C.A. 3.
  3. R. v. George, 1 Cr. App. R. 168; 73 J.P. 11; 25 T.L.R. 66.
  4. R. v. Power, 14 Cr. App. R. 17; (1919), 1 K.B. 572; 88 L.J.K.B. 593; 120 L.T. 577; 83 J.P. 124; 35 T.L.R. 283; 26 Cox C.C. 399.
  5. R. v. Pearson, 1 Cr. App. R. 77; 72 J.P. 449.
  6. R. v. Jackson, 5 Cr. App. R. 22; 74 J.P. 352.
  7. R. v. Fraser, 7 Cr. App. R. 99; 76 J.P. 168.
  8. R. v. Wallace-Johnson, 5 W.A.C.A. 56.

Appeal from the Supreme Court of the Gold Coast.

Quist, A kiwumi and Bossman for Appellant.

Rodwell, Crown Counsel, for Crown.

The following judgment was delivered:

Lucie-Smith, C.J. This is an appeal from a conviction by the learned Acting Chief Justice.

The appellant was charged with the offence of Libel contra section 246 (1) of the Criminal Code. (We would say in passing that in a charge of this sort it might have been more satisfactory had section 247 been mentioned in the charge as section 246 does not create an offence but only lays down the punishment. See section 202 (3) (iii) Criminal Procedure Code. The point, however, was not taken before the trial Court or in this Court and it is obvious that the appellant was in no way prejudiced.)

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The facts of the ease are as follows : The appellant is the Editor of the African Morning Post and as such Editor passed for publication and published the article complained of. The alleged incident took place on the 2nd March, 1948, and the article complained of was published on the morning of 4th March, 1948. As the police search out of which the alleged incident arose did not finish until 5.30 p.m. it appears to us quite possible that the article did not come into the hands of the Editor until the morning of 3rd March and that it was in the hands of the printer on the evening of the same day. The defamatory matter complained of reads as follows:—

” He was ordered to quit by Superintendent Reeves with a pistol just on his forehead. . . In the tenant’s room an amount of £53 odd was removed. This money belonged to Festus Akpan.”

Section 248 says:—

” 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.”

Section 247 reads as follows :—

” 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.”

Ground 2 of the Supplementary grounds of appeal states that the prosecution failed to prove negligence on the part of the appellant. With this submission we are unable to agree. It appears to us in this case having regard to the provisions of section 250 of the Criminal Code that, if the Editor of a responsible newspaper publishes defamatory matter which the Court finds to be untrue, then a presumption arises that the Editor has been reckless and negligent in so doing.

As regards the submission by Counsel at the close of the Crown’s case that there was no case to answer we are of opinion that the learned trial Judge was justified in finding that there was a prima facie case to’ answer. Even if we did not agree we are of opinion that the Judge, having given his ruling, it was then for the defence to decide what course to adopt.

Mr. Quist has referred us to the case of Rex v. Joiner (1) and to the dictum of Darling, J., at p. 66. This case was considered by West African Court of Appeal in the case of Rex v. Akinpelu Ajani & Ors. (2). In his judgment, Kingdon, C. J., reviewed the English cases (R. v. George (3) ; R. v. Power (4) ; R. v. Pearson (5); R. v. Jackson (6) ; R. v. Fraser (7) none of which followed-the decision of R. v. Joiner (1)). The state of the law on this point as in the year 1936 is set out by Kingdon, C. J., in his judgment at p. 7.

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As regards the question of privilege learned Counsel for the appellanthas referred us to certain English cases but in view of the decision of the Privy Council in R. v. Wallace-Johnson (8) at p .59 et seq. we propose confining ourselves to the Criminal Code of the Colony.

Section 250 reads :-

” Any publication of defamatory matter concerning a person is unlawful within the meaning of this Title, unless it is privileged on one of the grounds mentioned in this Title.”

Section 251 lays down what matters are absolutely privileged. Section 252 lays down:—

“a publication of defamatory matter is privileged, on condition that it was published in good faith, in any of the following cases, namely “

then follow ten sub-sections, the tenth being the one whose protection the appellant seeks—this reads:—

” (10) If the matter is published in good faith for the protection of the rights or interests of the person who publishes it, or of the person to whom it is published, or of some person in whom the person to whom it is published is interested.”

It is to be noted that the publication must be ” in good faith ” and section 253
ays it down that ” a publication of defamatory matter shall not be deemed to

have been made in good faith by a person, within the meaning of the last preceding section, if it is made to appear either:—

  1. ; or
  2. That the matter was untrue, and that he published it without having taken reasonable care to ascertain whether it was true or false “.
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The learned trial Judge found that the matter published was untrue and that the appellant did not exercise such skill and precaution as was reasonably necessary in the circumstances in trying to find out if it were true or false before he published it. It is true that the appellant appears to have made some sort of enquiries from Tettey, Schandorf and Akpan but such enquiry was purely ex park and no attempt was made—perhaps could not be made taking the time factor into consideration—to get the other side of the picture from the Authorities or from Mr. Reeve himself before publication. It must be noted that these enquiries did not bring to light the fact that the name of the Public Officer concerned or his rank were misreported by Tettey.

In our opinion the learned Judge was fully justified in arriving at his findings of fact and such findings are supported by the evidence in the case as a whole.

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.

The appeal is dismissed.


Appeal dismissed.

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