Tsikata v Newspaper Publishing Plc

Factual and Procedural Background

The Plaintiff, a high-ranking official in the government of Ghana during a military regime from 1981 to 1992, brought a defamation claim against the Defendant, a newspaper publisher. The dispute arose from a 1992 article discussing the upcoming Ghanaian presidential election and the Plaintiff’s alleged role in a 1982 conspiracy involving the kidnapping and murder of three High Court judges. The article referenced a special inquiry (the Special Investigation Board, S.I.B.) which had named the Plaintiff as the "mastermind" behind the plot, though he was not prosecuted. The Plaintiff issued a writ in 1993 claiming the words meant he masterminded the murders but escaped prosecution and execution.

Following pleadings, a preliminary issue was ordered for trial: whether the words were published on an occasion of qualified privilege under the Defamation Act 1952 or common law. The High Court considered the events of 1982-83, including the S.I.B.'s investigation, its public hearings, and final report submitted to the Attorney General, who publicly released the report along with his critical comments rejecting prosecution of the Plaintiff. Several accused were prosecuted and executed, with one key accuser retracting his allegations against the Plaintiff before execution.

The preliminary issue was tried by a Deputy High Court Judge, who held that the first two sentences of the paragraph were protected by statutory qualified privilege as a fair and accurate report of public proceedings of a government-appointed inquiry, and the third sentence was protected by common law qualified privilege. The Plaintiff appealed this decision.

Legal Issues Presented

1. Whether the words complained of were published on an occasion of qualified privilege under the Defamation Act 1952 or at common law.
2. Whether the final report of the Special Investigation Board constituted a "proceeding in public" for the purposes of statutory qualified privilege.
3. Whether the publication was a "fair and accurate report" of such proceedings.
4. Whether the matters published were of "public concern" and for the "public benefit" under section 7(3) of the Defamation Act 1952.
5. Whether the third sentence of the paragraph was protected by common law qualified privilege.

Arguments of the Parties

Appellant's Arguments

• No part of the paragraph was capable of protection by qualified privilege, statutory or common law.
• The first and third sentences were not reports of any proceedings.
• The second sentence did not meet statutory privilege conditions as it was not a report published contemporaneously or as news, but rather commentary on past events.
• The S.I.B.’s report was not a proceeding in public because it was submitted to the Attorney General, who alone made it public.
• The publication was unfair and inaccurate for omitting the Attorney General’s critical comments and the accuser’s retraction.
• The publication was not of public concern or benefit, especially given the authoritative refutation of the allegations.
• Common law privilege could not apply where Parliament had legislated the scope of privilege.

Respondent's Arguments

• The defence of qualified privilege has evolved to protect reports of parliamentary, judicial, and public tribunal proceedings.
• Both the status of the inquiry body and the subject matter must be considered; the S.I.B. was a government-appointed public inquiry.
• The first two sentences constituted a fair and accurate report of the S.I.B.’s public proceedings and findings.
• The fact that the report was published by the Attorney General does not negate the proceedings’ public nature or the privilege.
• Later developments or criticisms do not affect the fairness or accuracy of the original report, though they may be relevant to the public interest test under section 7(3).
• The third sentence was protected by common law privilege as it related closely to the public inquiry’s findings.
• Only an authoritative refutation, such as a conclusive public disproof, can remove qualified privilege.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the nature of the Special Investigation Board (S.I.B.) and its proceedings, concluding that the S.I.B. was a government-appointed public inquiry whose proceedings included both public hearings and the final report submitted to the Attorney General. The Court rejected a narrow linguistic approach and held that the final report was an essential part of the public proceedings, even though the report was made public by the Attorney General rather than the Board itself.

The Court held that the first two sentences of the paragraph in question constituted a fair and accurate report of the S.I.B.’s public proceedings and findings. Fairness was assessed by whether the report conveyed the impression a reader would reasonably form from the entire inquiry, and the Court found no unfairness in omitting the Attorney General’s critical comments from the report itself, as these comments were not part of the Board’s proceedings.

Regarding the public interest and benefit test under section 7(3) of the Defamation Act 1952, the Court acknowledged the difficulty but ultimately concluded that the publication was of public concern and for the public benefit. The Plaintiff’s continuing role in government and the relevance of the inquiry’s findings to the forthcoming election justified the publication despite the omission of the Attorney General’s dissenting views and the accuser’s retraction.

The third sentence, concerning subsequent events (prosecutions and executions), was not protected by statutory privilege but was protected by common law qualified privilege due to its close connection with the inquiry’s findings and the public interest in the matter.

The Court emphasized that qualified privilege could be defeated by proof of malice, which was not determined at this stage. The Court found no error in the High Court’s conclusions and rejected the Plaintiff’s appeal.

Holding and Implications

The Court DISMISSED THE APPEAL and upheld the decision that the words complained of were published on an occasion of qualified privilege, both statutory and common law, protecting the Defendant from liability in defamation.

The direct effect is that the Defendant’s publication of the article was lawful under the qualified privilege defence, allowing for the reporting of public inquiry proceedings and related commentary on matters of public concern. No new precedent was set beyond affirming the application of existing principles to the facts of this case. The Plaintiff’s claim was therefore unsuccessful, and the Defendant was entitled to costs. Leave to appeal to the House of Lords was refused.