Appeal Court. 11 June, 1937. Appeal from Conviction by High Court.

Charge of publication of defamatory matter knowing it to be false under section 375 of the Criminal Code-No finding by trial Judge that accused knew such matter to be false-Question of substitution of verdict by Appeal Court under section 11 (2) of the West African Court of Appeal Ordinance, 1933-Distinction between English and Nigerian law.

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.

There is no need to set out the facts. Wells Palmer for Appellant.

Acting Solicitor-General for Crown.

The following joint judgment was delivered :-

KINGDON, c.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND BUTLER LLOYD, J.

Accused was charged with the publication of defamatory matter contrary to section 375 of the Criminal Code in that on the 31st of January, 1936, he published defamatory matter affecting D. E. Okereke knowing it to be false in the form of a letter handed by him to D. E.Okereke for communication to the Superintendent of Education, Onitsha, which contained the defamatory matter set forth-in the charge. It is not necessary to set out the defamatory matter complained of at length. It suffices to say that in this com- . munication accused alleged that four of the biggest girls in the school, of which D. E. Okereke was headmaster and he assistant headmaster, had stated to him on the 14th January, 1936, in answer to questions put by him, that D. E. Okereke had called them into his office one by one and made them strip themselves in his presence and that one of them had stated that D. E. Okereke had insisted on her taking off all her clothes and sitting on his lap, and when she refused he began to undress her by force, and only desisted when she shouted and the office boy had come into the main office.

To this charge the accused pleaded not guilty, and his Counsel stated that his defence would be privilege. Crown Counsel then said he need only prove publications of libel and if the defence showed privilege he would show malice.

Crown Counsel then proceeded to put Okereke in the box,  where he was examined and cross-examined.                                                                                                          

Crown Counsel then stated he called no further evidence then,  but asked the Judge to rule there had been publication, which the Judge did after hearing Counsel for the defence, who did not resist  the application.  

Counsel for the defence then said the publication was privileged on account of the confidential relationship between the headmaster and accused, and that it was the duty of the latter if he saw anything wrong to report to Government.

Crown Counsel replied that he did not contend that this com­munication was not privileged. The Judge then ruled that the communication was privileged and recorded that Crown Counsel continued on question of malice.

Okereke was recalled and further examined. After all the wit­nesses for the Crown and defence had been heard, the Judge summed up and stated that he found accused guilty. He fined him £25 or two months' I.H.L.

The Judge obviously overlooked the fact that accused was charged with publishing the matter complained of knowing it to be false, and that before he could be found guilty of the offence as charged the Court had to be satisfied that accused knew the falsity thereof. In his summing up the Judge said the" Defence rely on privilege only," and after defining malice, he said, "Question reduces to this: Is there evidence of express malice sufficient to destroy defence of privilege? "

The case for the prosecution was that none of the girls was told to or did strip herself before Okereke or that they had told the accused so. Ugbo Isu and Grace Okoji, two of the girls concerned, gave evidence supporting this contention.

Okocha and Zilpa, the other two girls concerned, both gave evidence that they were compelled to undress by Okereke in spite of their objections and that they had told the accused about it.

The Judge's comment on this evidence in his summing up was as follows :-

" Exaggeration of what they said. I am satisfied on the evidence that defendant did not make a note at the time of what the children told him in reply to his questions.

" I am satisfied that what he wrote down-the statements which constitute the defamation now charged--does riot repre­sent what the children said.

" Paying due regard to the local dissensions which, accord­ing to the evidence, appear to have arisen over this case, I see no reason to disbelieve the evidence of the girls Ugbo' Isu and Grace Okoroji.

" I found the other two, Okocha and Zilpa, less credible.

Neither impressed me very favourably in the witness box, and I find it difficult to believe that had the events they speak of actually occurred, their parents would not have reacted much more vigorously than they did."

In our opinion this did not amount to a finding that accused knew the defamatory matter to be false, but amounts to no more than that the Judge preferred the evidence of Ugbo Isu and Grace Okoroji to that of Okocha and Zilpa-that the accused did not write down the statements complained of at the time-that it did not represent what the children said, and that accused had exag­gerated what they said.

Accused cannot be convicted of publishing defamatory matter knowing it to be false unless the exaggeration is so gross as to amount to a false statement-and there is nothing in the Judge's summing up to indicate that he was satisfied that such was the case. There being no finding by the trial Judge that the accused published the defamatory matter knowing it to be false it is clear that the conviction cannot stand.

There remains to be considered whether this Court should, in exercise of its powers under section 11 (2) of the West African Court of Appeal Ordinance, 1933, substitute for the finding of the Judge a finding of guilty of the offence of " publishing defamatory matter" simply, i.e. the lesser offence under section 375 of the Criminal Code.

It is not disputed that the matter complained of was defamatory and publication is admitted. It is therefore quite clear that the accused did publish defamatory matter, but he is not criminally liable therefor if its publication was conditionally privileged by reasons of any of the provisions of section 379.

The Acting Solicitor-General has submitted that there was no evidence before the trial Judge which justified him holding that the communication was privileged and that he ought not to have held that the communication was privileged-that Counsel for the appellant could not say with certainty under which of the para­graphs of section 379 Criminal Code privilege arose-that Counsel for the defence in the Court below ought to have specified the para­graph on which he relied as constituting qualified privileges and that the trial Judge should have ruled which of the paragraphs rendered the communication privileged.

In our opinion there is much substance in the observations of the Acting Solicitor-General. It is quite clear that there has been considerable confusion of thought in the Court below on the part of both the Court and of Counsel for the Crown through an attempt to apply the principles and practice of English law to this case, which really depends on the Nigerian law, which is different.

By English law and practice where the accused can show the occasion to be privileged, the prosecution must give evidence of express malice.

By section 379 of the Criminal Code the publication of defama­tory matter is conditionally privileged, and no person is criminally liable in respect thereof in any of the twelve instances mentioned in that section. It is not till the Judge knows which of the provisions of section 379, Criminal Code, is relied on by the defence and has considered it, having regard to all the evidence adduced before him, that he can decide whether the publication of the defamatory matter complained of is conditionally privileged or not.

In our opinion the trial Judge was wrong in ruling, when he did, that the communication was privileged, for if that were so the case was at an end.

It is qui~e obvious that the Judge did not intend to hold finally that the publication of the defamatory libel was privileged, for he continued to hear the case.

The proper course was for the defence to have specified under which paragraph of section 379 privilege was claimed and for the Judge to have directed himself accordingly, and to have recorded a finding of whether or not conditional privilege existed under that specified paragraph. He did not do so, and it is impossible to say what the course of the trial would have been or what would have been the conclusion of the trial Judge had his mind been directed to the right issue. For these reasons we do not consider that this is a proper case for the exercise of our discretion under section 11 (2) of the West African Court of Appeal Ordinance.

The appeal is therefore allowed, the conviction is quashed, and it is directed that a judgment and verdict of acquittal be entered.