DAASEBRE NANA OSEI BONSU II vs. AKWASI MENSAH, BEN EPHSON, THE DAILY DISPATCH AND ALLIED NEWS LIMITED [2010]DLSC2529

DAASEBRE NANA OSEI BONSU II vs. AKWASI MENSAH, BEN EPHSON, THE DAILY DISPATCH AN... [2010]DLSC2529

Date	2010-02-24
Suit No.	CIVIL APPEAL NO. J4/23/2007
Citation No.	[2010]DLSC2529

ATUGUBA JSC (PRESIDING)

ANSAH JSC

BAFFOE-BONNIE JSC

AYEETEY JSC

GBADEGBE JSC

KWEKU PAINSTIL FOR THE DEFENDANTS/RESPONDENTS/APPELLANTS

KWESI AFRIFA FOR THE PLAINTIFF/APPELLANT/RESPONDENT

[2010]DLSC2529
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													<main id="main" class="content" style="min-height: 60rem" ><o:p>&nbsp;</o:p>DAASEBRE NANA OSEI BONSU
II<o:p></o:p>vs.<o:p></o:p>AKWASI MENSAH, BEN
EPHSON, THE DAILY DISPATCH AND ALLIED NEWS LIMITED<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/23/2007&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 24TH FEBRUARY, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWEKU PAINSTIL FOR THE
DEFENDANTS/RESPONDENTS/APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWESI
AFRIFA FOR THE PLAINTIFF/APPELLANT/RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:150%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ATUGUBA
JSC (PRESIDING), ANSAH JSC, BAFFOE-BONNIE JSC, AYEETEY JSC, &nbsp;GBADEGBE &nbsp;JSC<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>GBADEGBE,
JSC:-<o:p></o:p>On 9th April 2003, the Daily Dispatch published
an article of and concerning the respondent that had the following headline:&nbsp; “Mamponghene in 264 million cedis fraud”.
Following the said publication, the respondent on 22 April 2003, caused the
writ of civil summons herein to issue against the appellants before the High
Court, Accra claiming general and special damages for the “false and malicious
publication” and an order of injunction restraining the appellants, their
agents and workmen from continuing to publish the said materials of him. The
action proceeded to trial at the end of which the learned trial judge of the
High Court dismissed all the reliefs sought in the action. The respondent being
aggrieved and dissatisfied with the delivery of the trial court launched an
appeal therefrom to the Court of Appeal. The Court of Appeal after hearing the
parties reversed the decision of the trial court and allowed the claims
indorsed on the writ of summons herein including damages in the sum of one
thousand Ghana cedis. The instant proceedings arise as a result of an appeal
lodged from the decision of the Court of Appeal by the appellants to this court.
<o:p></o:p>&nbsp; We think
that the facts giving rise to the action herein have been sufficiently stated
in the judgments of the trial court and the Court of Appeal and as such we
desire not to spend any further time on it in this delivery which raises purely
for our consideration whether on the admitted facts, the judgment that is on
appeal to us was right? In&nbsp; our view
having regard to the nature of the publication, the respondent was&nbsp; wounded in his self esteem&nbsp; &nbsp;and &nbsp;therefore the question that we have to decide
is whether the defence of fair comment, which was one of the two defences
raised by the appellants to the claim&nbsp; in
the trial court was well made out? We are of the opinion that although the trial
court and the Court of Appeal considered the effect of the appellants statement
of defence as raising before it a plea of justification, a careful study of the
relevant pleadings contained in paragraphs 8, 10 and 11 of the statement of
defence only raise the pleas of qualified privilege and fair comment. See: (1) SUTHERLAND v STOPES [1925] AC 47;
(2) JONES v KELTON [1963] 3 All
ER 952 at 956; (3) LONDON ARTISTS LTD v &nbsp;&nbsp;LITTLER&nbsp;&nbsp; [1969]
3 All ER 193.These cases discuss the
misconception as to the nature of the plea that is raised in the relevant
paragraphs of the appellants’ statement of defence earlier on referred to in
the course of this delivery. This form of pleading is also referred to as the
“rolled- up plea”. For precedents on this, see Atkin’s Court Forms, Volume 25(2nd
Edition, Forms 58-61). The cases show that the averment that the facts were
truly stated is merely to lay the necessary basis for the defence on the ground
of fair comment. This averment is quite different from a plea of justification
of a libel on the ground of truth, under which defendant has to prove not only
that the facts are truly stated but also that any comments upon them are correct.
For a precedent of a pleading in justification see Form 63 of Atkin’s Court
Forms, Volume 25(2nd Edition.) In the form in which the plea existed before the
coming into being of the High Court Civil Procedure Rules), 2004, CI 47 it did
not require defendants to give any particulars of it. Today, however by virtue
of Order 57 rule 3, the defendant is required to give particulars of which of
the words are facts and which are comment.&nbsp;
We think that with this new rule the defendant has simply to plead the
plea of fair comment. &nbsp;&nbsp;It appears that with this new rule the
“rolled-up plea” has become obsolete; there being nothing to be gained by it.
See: LORD v&nbsp; SUNDAY
TELEGRAPH&nbsp; [1970]
3 All ER&nbsp; 504
at 506-507 per Lord Denning M.R.Having regard to the fact that the statement
of defence of the appellants, raised&nbsp;
only the pleas of&nbsp; fair comment &nbsp;&nbsp;and&nbsp; qualified
privilege, we shall in considering the appeal herein limit ourselves to the
effect of the said pleas only. In our opinion, should the question that we have
raised regarding the plea of fair comment succeed it would be sufficient to dispose
of the appeal in which case no useful purpose would be served by proceeding to
consider the plea of qualified privilege. See: SLIM v DAILY TELEGRAPH AND ANOTHER&nbsp;&nbsp; [1968]
1 All ER 497.For the said plea to be good,
however, the appellants must not have acted maliciously. See: THOMAS v BRADBURY, AGNEW &amp; CO. LTD [1906] 2KB 627 at 642.<o:p></o:p>&nbsp;&nbsp;But&nbsp;&nbsp;
before considering the effect of that defence, there is one matter of
substance raised by the respondent that we must turn our attention to. It
relates to the question of the </main>