R v. FRIMPONG

(His lordship stated the history of the matter, and continued:—)

The absence of any evidence of the delivery of the defamatory air-letter to, or of its receipt by, the addressee, and the rather strong suspicion raised by the circumstantial evidence that it had somehow got into the hands of some unauthorised person in London, and by the latter posted back to the complainant in Accra, led me to ask for arguments whether there was sufficient evidence establishing a prima facie case of publication.

Regard must be had, inter alia, to the cases of:

(1) Sharp v. Skues ((1909) 25 T.L.R. 336);

(2) Huth v. Huth ([1915] 3 K.B. 32) and

(3) Powell v. Gelston ([1916] 2 K.B. 615).

Those three cases (the second, Huth v. Huth, being a decision of the English Court of Appeal) establish the proposition that the interception by an unauthorised third party of a letter containing matter defamatory of the addressee, does not constitute publication to that unauthorised third party, or to any other person to whom that unauthorised third party may publish the letter. As was observed by Lord Reading C.J. in Huth (supra) at p. 38:—

"It would be impossible successfully to contend . . . that if a person, in breach of his duty, were to open a letter, and there was no reason to expect that he would commit that breach of duty, the fact that he had opened it and read it would amount to publication by the person who sent it."

Since the adjournment, however, I have looked into the matter further and have examined the authorities. In the result I have satisfied myself that the arguments which I invited are no longer necessary, and that the evidence available does disclose a prima facie case of publication. The principle of the three cases above referred to is explained in paragraph 62 of Vol. 24 of the Simonds edition of Halsbury, at p.32, as follows:-

"If a letter containing a libel intended for and addressed to the person libelled is wrongfully opened by a third party, there is no publication."

In that passage, for our purpose, the emphasis should be placed on the words:—

"A libel intended for and addressed to the person libelled."

The reason, of course, is because the addressing of defamatory or offensive matter concerning a person to himself does not constitute publication, so far as civil liability is concerned. As observed by [p.289] Lord Esher M. R. in Pullman & Anor v. Hill & Co. Ltd. ([1891]) 1 Q.B. 524 at p. 527):—

"What is the meaning of publication? The making