pg 181

         Libel-Notice inserted in Newspaper by Defendant-Trial Judge found that an innuendo in the Notice imputing Insolvency was established--Innuendo imputing Insolvency was not pleaded by the Plaintiff-Defendant had no opportunity to contest-Duties of Appeal Court in such circumstances Imputation of Insolvency taken into consideration in awarding damages-Misdirection.

Held: (i) As the ·words- complained of do not necessarily on the face of them impute insolvency the trial Judge was wrong in imputing to them an innuendo which was not pleaded.

(ii) That in assessing the damages the trial Judge wrongly took into account the imputation of insolvency.

Appeal allowed; judgment of. Court below set aside and a new trial before a different Judge ordered.

Cases cited:-

Dawe v. Palmer 123 English Reports 1147; Riding v. Smith U876) 1 Ex: 93;

Vines v. Serrell (1835) 7 C & P. 163;

C,,.epigny v. Wellesley (1829) 5 Bing 402 j

Praed v. Graham (1889) 59 L.J.

Uatcliff v. Evans (18!J2) 2 Q.B. 528;

Smith 1T. Schilling 1928 1 K~. 429.

The facts are sufficiently set out in the judgment .

A. Sawyerr (with him K. A. Bossman) for Appellant.

J. H. Coussey for Respondent.

The following joint judgment was delivered:-  pg 182

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND M'CARTHY, J.

In this case the plaintiff caused to issue in the Divisional Court, Accra, a writ against the defendant containing the follow­ing claim:-

"The plaintiff carries on business at Accra and other places in "the Gold Coast as a Trader and Importer of goods from India, " England, China, Japan and other places.

"On October 2nd 1940, the defendant contriving and intending " to injure the plaintiff in his said busine8l\ and to prevent him from "selling his goods falsely and maliciously wrote and published of the " plaintiff in the form of a Public Notice in the issue of the African " Morning Post Newspaper of that date, the following words:-

"To WHOM IT KAY CONCERN.

'I, Gagandas Partabrai Daswani, holding Power of Attorney "issued on the 19th Januar.y, 1940, at Hong Kong and instructions "from Mr Assudamal Vaswani, the Managi,ng Proprietor of Messrs. "Utoomal and Assudamal Company, Hong Kong and other branches " to file suit against Mahtani Brothers, Accra and other branches for .. , owing to the said firm Utoomal and Assudamal Company, Hong Kong, "monies against various bills, etc., and to cancel Power of Attorney ,. of Choithram Wadhumal Mahtani, brother of Kundanmal Wadhumal "Mahtani, Proprietor of Mahtani Brothers of the Colony of Gold "Coast, vested in him by the above firm Utoomal and Assudamal " Company, and for other purposes also do hereby revoke Mr Choithram "Wadhumal Maht&ni's the said Power of Attorney.

"Any person or persons doing any business or moneytary trans­actions with him in name of Utoomal and Assudamal Company from " hereafter shall do so at his, her, or their risk.

" I also hereby beg to inform the public that any person or persons " buying any of the stores of Mahtani Brothers in the Colony of Gold " Coast shall do so at his, her, or their risk.'

" By the said publication the defendant meant and was understood "to mean that the plaintiff had no right to sell his goods and that "he intended or was attempting to defraud the defendant or his •• creditors by selling or disposing of his goods and property and obtaining the proceeds thereof before the same could be secured and " obtained possession of by or on behalf of the defendant.

" By reason of the publication of the said 'Notice the plaintiff has "been greatly injured in his credit and reputation and has suffered " and will suffer much loss and damage.

"The plaintiff claims £2,000 damages."

To the claim the defendant filed the following defence:-

" 1. The defendant admits the writing and publication of the " words set out in the plaintiff's writ.

"2. The said words do not mean and were not capable of the " alleged meaning set out in the plaintiff's said writ or of any other ,. defamatory meaning.

" 3. If the said words are capable or the alleged meaning that the "plaintiff was attempting to defraud the defendant by selling or disposing of his 'stores' and obtaining the proceeds thereof before "the same could be secured and obtained possession of by the •• defendant, the said defendant pleads that that was true in substance II and in fact ..

" 4. The said plaintiff did first of all dispose of his Cape Coast " Store or sell the whole of the Stock in the said store, then later his II Koforidua ' Store' or the whole of the stock in the said Koforidua II Store, in both cases to Messrs. K. Chellaram and Sons and in both "cases at prices considerably under value at a time when the said " plaintiff was heavily indebted to the defendant's Principals and without paying over the proceeds to satisfy the defendant's Principals' " debt or account.

" 5. The words complained of were uttered on a privileged occasion, "the said defendant having an interest as a creditor in the said "-plaintiff's business or his assets.

" 6. That in any case the damages claimed are excessive and the " plaintiff has not suffered any damages."

And to this defence the plaintiff filed the following reply:­. The plaintiff joins issue with the defendant on paragraphs 2, " 3 and 5 of his statement of Defence.

" 2. As to paragraph 4 of the said Defence, the plaintiff says that "he sold goods in his stores at Cape Coast and Koforidua in the " ordinary course of business and the moneys realised from such sales •• were paid partly on account of Bills of supplying Merchants including " the Bills of Utoomal and Assudamal and Company .

•• 3. As to paragraph 6, the plaintiff says that by reason of the "said libel, he has been greatly damified in his business and has "suffered in his credit both with Merchants in the Gold Coast and " abroad and with Barclays Bank (Dominion, Colonial and Overseas), • Accra, his Bankers." pg 183

The action was tried by Bannerman, J., who, on the 1st April, 1941, gave the following judgment:-

" I consider this libel vicious. In my view there is no " justification for it and it was not published on a Privileged "occasion. I give judgment for the plaintiff for £1,500 " general damages with costs to be taxed. In view of the "importance of this case I will give my reasons for my " judgment later on."

Giving his reasons on the l0th April the learned Judge said ;-

"The facts in this case are so clear that there is no " necessity to discuss them at any great length.

" It is clear from the evidence that when the publication "appeared on the 2nd October, 1940, the defendant's " principals (Utoomal and Assudamal and Company) had no " interest in the goods in any of the plaintiff's stores. In "other words, the plaintiff was not owing Utoomal and " Assudamal and Company any debt in respect of any of the " goods in his stores, and I am satisfied that the defendant pg 184  knew that this was so. The debt which the plaintiff was " owing in respect of goods delivered to him on the two D I A "bills had already been paid for before the defendant " published the notice in the African Morning Post.

" True, there were certain goods which were lying-in. the " Warehouse of the Bank but these goods were not in the " plaintiff's stores at the time of the publication. Further­" more, these goods had already been sold to certain Indian " Firms before the publication appeared in the Morning Post.

" In my opinion the plaintiff's liability to Utoomal and " Assudamal and Company, if any, represented certain Bank "and Cable charges as well as depreciation in price in " respect of the goods! which were sold to the Indian Firms. " 'this liability, which the plaintiff disputed, could not, in " my view, justify the defendant in publishing the notice in " the Press. Furthermore, I am satisfied that the defendant " did not send any statement of account to the plaintiff before " he published the notice in the Press.

" In my view there was no justification whatever for the "publication of the notice in the Morning Post and the " defendant was not privileged in publishing it. This news" paper, according to counsel for the plaintiff, has a fairly " wide circulation in the Gold Coast.

" I am satisfied that, by this publication, the plaintiff " has been greatly injured in his credit and reputation and "has suffered and wit.! continue to suffer much loss and " damage for many years. Throughout the hearing of this " case the defendant made no attempt to put oil on troubled " waters, or to admit the folly of his act. On the other hand " he maintained an obstinate attitude and did all he could " to justify the publication. The defendant went so far ·as"to send a copy of the publication to the Comptroller of " Customs of the Gold Coast, and there is abundant evidence " on record to show that the plaintiff's reputation suffered so " much that the Bank refused to grant him any more over­drafts. Bad as this is, the worse is to follow.

" The plaintiff conclusively proved that, after the publication, his business's was seriously affected and he lost his "reputation and standing in the community and among "Merchants. One particular local firm actually refused to "-supply him with provisions on the monthly credit basis. pg 185

" I am bound to draw the inference that the defendant " deliberately published the notice in the Press in order to " show that the plaintiff was insolvent and that the goods in "his stores belonged to Utoomal and Assudamal and " Company. If one person goes out of his why maliciously " to damage the reputation of another person in his business " or trade, then the person who causes the injury must Buffer "the consequences of his own act. (Dawc. 'v Palmer, 123 " English Reports page 1147). It has been held that it is " libellous to impeach the credit of a ' merchant or tra1eri " , or to impute to him fraud, dishonesty or any other con uc " 'that would prejudice him in the day of his trade or " 'business. Thus, it is libellous to Write and publish of a " 'trader or merchant that he is, or has been bankrupt, " 'insolvent or in embarrassed circumstances/ (See Gately " on Libel and Slander, 2nd Edition, at page 38).

" There can be no doubt that the defendant meant the " public to treat the plaintiff as an insolvent, or that he IS "a man in embarrassed Circumstances. In the case of " Riding v. S7II,ith (1876) 1 Exchequer Division, at page 93.. " Lord Keely, C.B., made use of these word~ :-' It appears " , to me that if a man states of another who IS a trader earning his livelihood by dealing in articles of trade, anything, " , be it what it may, the natural consequences of uttering " , which would be to injure the trade and prevent persons " , from resorting to the place of business, and it .so leads to " , a loss of trade, it is actionable.' In my View this principle " applies equally to libel.

" In the case of Vines v. Serrell (1835), 7 C & P at page "163. Mr Justice Parke said: 'The plaintiff may show the " , m~nner of the publication with a view to damages.' For " example, the plaintiff may show that the libel was published " in a newspaper when the defendant WAS under no duty to " publish it except to a limited number of persons, for the " more extensive the publication of the libel the greater the " inhuy occasioned by it. (Crepigny v. Tvellesly (1829) 5 " Bing, at page 402). The plaintiff may also urge in support "of "damages the manner in which the defendant has " conducted his case at the trial. In the case' of Praed v. " Graham (1889), 59 I,.J., it is stated that ' It is a rule of " 'law in action of libel that the Jury, in assessing the " , damages, are entitled to look at the whole conduct of the " 'defendant from the time when the libel was published " 'down to the very moment of their verdict. They may " , take into their consideration the conduct of the defendant " , before the action, after the action, and in Court at trial of the action.'

" In this case I was sitting both as a Judge and Jury " and the defendant did not make the slightest attempt at any " stage of the proceedings to throw himself into the arms of "mercy. In these circumstances I was bound, after the "plaintiff had satisfactorily established his case, to regard "the conduct of the defendant as vicious and to award "substantial damages. Apart from the viciousness of the " defendant's conduct there are, no doubt, certain aggravating " circumstances in the case which must be taken into account " in awarding damages. In the case of libel or slander which pg 186 is actionable per se (as in the present case) the plaintiff "would not prove that he has Buffered any damage as the " result of the words complained of, for ' the law presumes " , that some damage will fonow in the ordinary course of ",' things from the mere invasion of his absolute right to " , reputation' per Bowen, L. J., in the case of Ratcliff 'V. .•• Evans (1892) 2 Q.B., at page 528.

"If the plaintiff has suffered any pecuniary loss over "and above the general damages prescribed, he may give " evidence of such loss, provided he alleged in his statement " of claim. But if the plaintiff fails to prove such pecuniary "loss at the trial, he may still receive general damages. (" Riding 'V. Smith (1876), 1 Exchequer Division, 91).

" In view of the foregoing reasons I gave judgment for "'the plaintiff as already recorded.'"

The defendant has appealed to this Court against the judgment upon the following grounds:-

" 1. That the plaintiff failed to prove the innuendo alleged in his " Statement of Claim, and the Court balWd ita decision on an innuendo " not alleged nor relied ~n by the plaintiff.

" 2. That the defendant proved the truth of the statements in the "publication complained of, and the Court was wrong in its decision " that justification had not been proved.

" 3. That the plainti4f did not prove the damages awarded and "such award of damages was grossly excessive.

" 4. Judgment against the weight of evidence.

" 5. The publication was incapable of the meaning that plaintiff "was insolvent, or was a man in embarrassed circumstances; but if "the publication was capable of that meaning then it was true in "substance and in fact even on the. admission of the plaintiff himself.

"6. The Judge applied wrong principles of law to the decision of "this case in that he applied the rule of law relating to cases of " Publication in regard to insolvency when the Plaintiff's case was not " based on an innuendo suggesting the insolvency of the plaintiff.

" 7. The Court was wrong in assessing damages on the footing that " the defendant imputed insolvency to the plaintiff whereas the plaintiff "himself did not rely on an innuendo imputing insolvency."

In filing those grounds of appeal he has treated the " reasons" as incorporated in and forming part of the judgment  we think this is the proper course and we propose to do the same.

We feel compelled to allow this appeal on ground 7 only and we ~re 2.eliberately refraining from saying anything as to the other six grounds of appeal in case we might ,thereby prejudice the re-trial which we find it necessary to order. We agree with the appellant's contention that the words complained of do not necessarily on the face of them impute insolvency to the respondent. But we think from the two passages in the reasons for judgment: pg187

 I am bound to draw the inference that the defendant  deliberately published the notice in the Press in order to show that the plaintiff was insolvent."                      

There can be no doubt that the defendant meant the public to treat the plaintiff as an insolvent, or that he was a man in embarrassed circumstances that it is clear that the learned trial Judge was in fact finding that an innuendo imputing insolvency to respondent was established. This was an innuendo which was not pleaded and which the 8:ppellant had had no opportunity to contest. It might have been met either by showing'- that the words could not bear that meaning or by justifying the meaning or both.

We think that it is also clear that in assessing the damages the learned trial Judge took into consideration the damage which might reasonably accrue to the respondent by the imputation of insolvency which he (the trial Judge) had found to be established, and we are of opinion that in so doing he misdirected himself. The duties of an Appeal Court in such circumstances are concisely stated by Greer, L. J., in the case of Smdh v Schilling (1928) 1 K.B.429 (C.A.) at page 440:-

" The verdict may be set aside if the Court of Appeal " upon all the circumstances comes to the conclusion that the "damages awarded are so small or so large that twelve " sensible jurors could not reasonably have awarded them; or "if the Court is satisfied that the jury have taken into " account matters which they ought not to have taken into " account or have disregarded matters which they ought to " have taken into account."

In the present case we are of opinion that the. learned trial judge, in assessing the damages, took into account a matter which he ought not to have taken into account namely the imputation of insolvency to the respondent which he (wrongly, in our view) found to be established. A new trial is therefore necessary unless the parties should have agreed to this Court assessing the damage. Following the precedent of the procedure adopted by the Court of Appeal in England in Smith v. Schilling (.mpra) we have given the parties an opportunity of giving such consent. But the appellant has been unwilling to do so.

The appeal is therefore allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is -ordered that if. any sum has been paid by the appellant to the respondent in pursuance of that judgment it shall be 'refunded. The appellant is awarded costs in this Court assessed at £52 lIs 9d. The costs already incurred in the Court below are to be in the discretion of the Judge at the new trial. We need ,hardly add that it is desirable that the new trial should take place before a different Judge.