Case No.:

AC-APP-9- 1959

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Civil Procedure—Pleading—Privilege in libel—Must plead facts on which based

·  Tort—Libel—Judicial privilege thereof

·  Tort—Abuse of civil process—Premature protest of a note—Must show malice

In an action for libel where the defence is privilege, pleadings need not specific ally contain the words “absolute privilege.” .but must state the facts on which the privilege is allegedly based.
The judicial privilege in libel actions extends to everything transpiring in the ordinary c of law in the course of their normal duties. Protest proceedings under Civil Justice Ordinance, Order XIX. are thus so privileged.
Obiter dictum: premature protest of a note may give rise to a civil action for abuse of civil process if malice is involved.

Judgment

)COURT OF APPEAL)*

ALl MAHMOUD OBEID v. BARCLAYS BANK (D.C.O.) SHENDI

AC-APP-9- 1959

Advocate: El Fatih Abboud ... for the applicant

B. Awadalla I. January 16, 1962:—The plaintiff and appellant in this cane, Ali Mahmoud Obeid, is a well-known merchant of Shendi Town. The defendants and respondents are the Shendi Branch of Barclays Bank D.C.O

On June 23. 1957, the plaintiff started these proceedings against defendants in the Province Court at Darner claiming a sum of £S.10,000 by way

Court : M. A. Abu Rannat C.J., B. Awaodlla  J. and A. M. lmam J.

of damages for the injury alleged to have been caused to his reputation by the defendants. The facts constituting the act complained of are that the defendants on December 18, 1956, wrongfully initated protest proceedings against plaintiff on a promissory note drawn by him in favour of Messrs. Ibrahim and Habib Cohen of Khartoum and due for payment on December 25, 19 In these protest proceedings, the defendants were acting on instructions from Ottoman Bank, Khartoum to whom, it appears, the bill was passed for collection by the payees, Messrs. Ibrahim and Habib Cohen.

The plaintiff framed his action on defamation alleging that the act of prematurely petitioning the court for protest constituted an aspersion on his reputation as a merchant.

There was no dispute, or, at any rate, any material dispute, as to the facts, and, after hearing arguments on both sides, his Honour the Province Judge dismissed the action, holding that the occasion on which the publication was made, i.e., setting the proceedings of protest in rnotion, was one of absolute privilege.

From this decision the plaintiff appealed.

Before us, the learned advocate for appellant contended that no question of privilege arose in this case because:

(a) the defence of absolute privilege was not at all pleaded on behalf of the defendants in the court below, and

(b) even if it were, the decision would still be wrong because protest proceedings are not “judicial proceedings” within the true meaning of that term.

The learned advocate for respondents on the other hand contends as regards (a) that a plea of absolute privilege was properly made in accordance with the rules of pleadings and as regards (bi that the contention denying to protest pro the quality of judicial proceedings has no logical basis and is not supported by precedent.

As regards (a)

I regret I am unable to agree with the learned advocate for appellant that the defence of absolute privilege was not pleaded ii this case. It is true that the statement of defence does flOt specifically contain the words absolute privilege” but this is not at all necessary, for what is necessary to be stated are the facts upon which the privilege is based and these are no doubt given with sufficient detail and clarity in the statement of defence.

Odgers, Pleading and Practice 69 (z ed., 1946), says:

In an action of libel or slander, a defendant may not plead merely that ‘he published the words on a privileged occasion.’ He must set

out the facts and circumstances on which he relics as creating the privilege, and then the judge will decide on the facts proved at the trial whether the occasion was or was not privileged.”

regards (b)

To my mind the learned advocate for appellant seems to be restricting unnecessarily the rule as to judicial privilege when he tries to distinguish protest proceedings from other functions of the courts on the ground that the former involve no inquiry or adjudication between contesting parties. The privilege is, however, much wider than what the learned advocate contends and, in fact, covers everything done by the ordinary courts of law in the course of their normal duties whether involving adjudication on a contested cause or otherwise. An inquiry into whether certain proceedings are “judicial proceedings” or otherwise is only relevant when the privilege is sought to be extended to tribunals not normally engaged in the administration of justice. The rule is clearly set out by Lord Esher MR. in Royal Aquarium and Summer and Winter Garden Society. Ltd. v. Parkinson(1892) I .Q.B. 431, 442, as follows:

“It is true that, in respect of statements made in the course of proceedings before a court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of courts of justice; but the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorised inquiry which.. though not before a court of justice. is before a tribunal which has similar attributes.”

Again the rule is stated in 24 Halsbury, Laws of England 49 (3rd ed.. 1958). as follows:

“No action lies, whether against judges. counsel, jury, witnesses, or parties, for words spoken in the ordinary course of any proceedings before any court or tribunal recognised by law.” (Italics added.)

When therefore it is stated in some authorities that the privilege covers statements made in “judicial proceedings” what is meant is that it applies

to anything said in a court of law and (b) to any statements made before tribunals exercising functions equivalent to those exercised by such courts. The use of the term in question is usually intended to extend the privilege outside the ordinary courts and not to abridge it within those courts. Royal Aquarium v. Parkinson is one of the instances where it was sought so to extend the privilege, and the statements com of in this case were made before a meeting of the London County Council for granting music and dancing licences under an English statute.

O’Connor v. Waldron [ A.C. 76, was a Privy Council case in which the statements were alleged to have been made before a Commissioner under the Canadian Combines Investigation Act, and Lord Atkin there said:

“The law as to judicial privilege has in process of time developed. Originally it was intended for the protection of judges sitting in recognised courts of justice established as such. The object no doubt was that judges might exercise their functions free from any danger that they might be called to account for any words spoken as judges. The doctrine has been extended to tribunals exercising functions equivalent to those of an established court of justice.” O’Connor v. Waldron r A.C. 76, 81.

These are the two cases cited by the learned advocate for appellant in support of his contention that the rule is capable of restricting the freedom of judge. witnesses and parties to make defamatory statements in ordinary courts of law when such courts are acting in the administration of justice. They are, of course, no authority for such a suggestion. and from what is stated in these cases, it will be seen that judges of ordinary courts are protected in dealing with any matter coming before them in their official capacity and the privilege extends to persons appearing before them with reference to the matter in question. In the present case, protest proceedings being a matter entrusted to the Sudan courts under Civil Justice Ordinance, Order XIX, no action will lie for defamation with regard to anything said in court in furtherance of those proceedings. In the circumstances the dismissal of the action by His Honour the Province Judge was no doubt correct

However, l think I should not dispose of the matter without expressing my opinion as to what would have been the position had appellant based his action not on defamation but on the ground of “abuse of civil process.” Malice is, of course, the basis of all actions for abuse of civil process but the point does not seem to have been decided in England because protest there is entrusted not to the courts but to notaries public. b America, a premature protest has been held actionable. 8 Corpus Juris 628 (1916). The same authority says “Wrongful protest, if injury results there from , is actionable, even though the instrument was one which was not subject to protest; and the right t recover is not confined to a trader.” 8 Corpus Juris 631 (1916). Again, the same authority, it is stated that “In an action to recover damages for the wrongful and malicious protest of a bank cheque, the drawer may recover compensatory damages without alleging and proving special damages, and the right to recover is not confined to a trader in the restricted sense in which the term is used in the bankruptcy laws, but extends to any person engaged in business and whose credit is thus necessarily injured.” 8 Corpus Juris 632. n 74 (b) (1916). From the use of the word

"malicious” in this context. it appears that the act of wrongful protest is actionable in America as an abuse of process though this is not absolutely clear from the American authorities available here. I am only stating this out of sheer academic interest as it will certainly have no effect on the case in hand but the point is so important to the commercial world that it would merit an illuminative study should an opportunity arise. Professor Winfield seems to consider that abuse of civil process  Cannot he confined to abuses commonly to be found in the authorities. In  Winfield. Torts 631 (5th ed.,  1950) . he  says:

But does the law go still farther and make the malicious institution of any civil proceedings actionable? There is no historical reason why it should not, and it would seem curious to say that a man shall have an action for maliciously taking bankruptcy proceedings against him. hut not for : suing him for some scandalous tort like seduction or conceit. However, there is no reported  decisions in favour of any such general proposition.”

Guided by this statement of the principle, it may he that we will not be lettered by actual decisions in England. for once we accept the equity and reason in .1 principle of a general character, we are no doubt free in the choice of specific incidents to which that principle applies.

This appeal is therefore dismissed with costs.

M. A. Abu Rannat C.J . january 16, 1962:—I concur;. A. M. Imam J. J 16. 1962:—I concur.