THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE •
SAINT VINCENT AND THE GRENADINES
HIGH COURT CIVIL CLAIM NO: 64 OF 2007
DR. RALPH GONSALVES
Mr. Grahame Boilers for the Claimant
Dr. Linton Lewis for the Defendants
2009: November 16
 By Claim form filed on the 22nd
• February 2007, the Claimant sought among other things
damages and costs against the Defendants for slander, claiming that he was slandered by
words spoken by the First Defendant broadcast to persons in St. Vincent and the
Grenadines and St. Lucia on Nice Radio 96.7 FM. owned by the Second Defendant.
 In his Statement of Claim. the Claimant pleaded that he is a Barrister-at-Law and Solicitor
of the Eastern Caribbean Supreme Court in St. Vincent and the Grenadines. that he is the
political leader of the United Labour Party in this State, a Member of Parliament for the
North Windward Constituency and is the present holder of the Office of Prime Minister and
Minister of Finance of the State of Saint Vincent and the Grenadines.
1  The words complained of by the Claimant are set out in paragraph 5 of his Statement of
Claim and are reproduced:
” Caller, the dismissal of Junior Bacchus is ajoke you know, is assassination next
and it surprise me that the Comrade ain’t learn by history. In Trinidad, Randolph
Barrow, outstanding Commissioner of Police, in the 60’s and 70’s they say he
played with the pups and he got bitten by fleas. After him, Selwyn Richardson a
former Attorney General in Trinidad was gun down, just entering or leaving his
garage something like that. Sometime in December a Counsellor was gunned
down. You know and the wind is blowing. “So you calling, they are not safe.” The
Governor General home trembling, the Prime Minister frantic up and down the
place talking a whole set of nonsense …..Caller before you go you mentioned
going to Mount St. Benedict, he came back with a huge pascal candle parading all
over in the newspaper pages and several rosaries. Suppose is this turn around
because any intelligent political activist becoming a politician knows this is no the
way to go.
So he is haunted. He has to fire Junior, this will not satisfy him, he will now have to
resort to assassinations. Expect It!!!! So is his visitation to Mount St. Benedict
“Quickly Junior I want to end the way I begin. The setting free of Lawrence is no
accident. The drug lords have now shown us that they are in control. And I say it
is no accident, since Ralph come to office he has renegade the Post Mistress
General because she call in the pOlice in the Post Office to investigate dnJgs; she
pay the penalty for that. He gave Reuben Morgan adiplomatic passport to traffic in
drugs. That’s how we know he had a diplomatic passport after he was found
caught with drugs…… Here is a fellow Prime Minister in the region saying, “Boy
the amount of drugs coming from St. Vincent is really a problem to us in Barbados.
You pick a fight with him, you say, “look, you control your own backyard and don’t
worry with me and my drug man in St. Vincent.” So, basically the point I am
making is that, we are not making up these things of Dr. Ralph Gonsalves these
are incidents of his performance.”
 In Paragraph 7of his Statement of Claim, the Claimant pleaded that:
“By reason of the premises, the consequences of the Defendants by the slander
represented that the Claimant, in relation to his profeSSion and office, is aperson:
a. Unfit to be a member of the Bars of Saint Vincent and the Grenadines,
Antigua and Barbuda, Anguilla, the British Virgin Islands, Dominica and
St. Christopher and Nevis and thereby ought to be disbarred from
practicing his profession as aBarrister-at-Law and Solicitor.
b. Unfit to hold the high office of Prime Minister of S1. Vincent and the
Grenadines or of Minister of Finance of St. Vincent and the Grenadines or
to be a Member of Parliament or to hold any other public office in the
State of S1. Vincent and the Grenadines and has betrayed the trust of the
people of St. Vincent and the Grenadines by committing criminal offences
whilst in office for which he is in jeopardy of criminal prosecution and liable
to penal sanction.
 In Paragraph 8 of his Statement of Claim the Claimant pleaded that, by reason of the
publication of the said words the Claimant has been gravely injured in reputation as a
Barrister-at-Law and Solicitor of the Eastern Caribbean Supreme Court as well as his office
as Prime Minister and has been brought into public scandal, contempt and ridicule and has
suffered loss and damage.
 The Claimant claimed the following reliefs against the Defendants jointly and severally:
1. General damages for slander committed on the 29th
2. Aggravated damages.
3. Exemplary damages.
4. An injunction preventing the Defendants whether by themselves, their respective
servants and/or agents or howsoever otherwise from further speaking or
publishing the said or similar words defamatory of the Claimant.
6. Any further or other relief as the Court thinks fit.
 By his Amended Defence filed on the 6th
July 2007, the 1st Defendant pleaded that the
Claimant is a non-practising Barrister-at-Law and Solicitor. He denies paragraphs 6, 7, 8,
9, 10 and 11 of the Statement of Claim and in particular denies that the words complained
of could bear the meaning ascribed to them by the Claimant. He contends that the words
complained of constituted fair comment and expressions of opinion made in good faith
without malice upon matters of public interest. Further, that the said words were published
in the exercise of freedom of speech on the conduct of the Claimant in his public capacity
of Leader of the “Unity Labour Political Party” and as Prime Minister and Head of Cabinet
of the government of Saint Vincent and the Grenadines.
 The 2nd Defendant, in his Defence filed on the 23rd March 2007, pleaded:
3 (i) in paragraph 5 that the words complained of were not understood to bear
or were capable of bearing any of the defamatory meanings alleged by the
(ii) in paragraph 6, that the statements were published on an occasion of
 By Notice of Application filed on the 8th August 2009, the Claimant applied to the Court
for an Order pursuant to Part 26.3 of the Civil Procedure Rules 2000 (CPR) for an Order
that the Defendant’s defences as filed do not establish reasonable defences to the action
and should be struck out and Judgment entered for the Claimant for the payment of an
amount to be decided by the Court and costs.
 That application came up for hearing in Chambers on 30th September 2009. On that date,
the Court made an Order that Counsel were to file written submissions and copies of the
legal authorities on which they relied, on or before the 16th day of October 2009. The
matter was then adjourned to the 11th November 2009.
 Counsel for the Claimant filed his submissions on the 14th October 2009. No submissions
were filed by Counsel for the Defendants up to the time of the writing of this decision,
namely the 9th November 2009. Accordingly, this ruling is based on the submissions of
Counsel for the Claimant and on the Court’s own inherent knowledge of the law.
APPLICATION TO STRIKE OUT THE DEFENDANTS’ DEFENCE
 The Court has power to strike out a statement of case under Rule 26(3) of the Civil
Procedure Rules (CPR 2000). The relevant provision for so doing is found in Rule 26 .3 (1)
which provides as follows:
“In addition to any other power under these Rules, the Court may strike
out astatement of case or part of astatement of case if it appears to the
(a) there has been a failure to comply with a rule, practice direction, order or
direction given by the court in the proceedings;
(b) the statement of case or part to be struck out does not disclose any
reasonable ground for bringing or defending aclaim;
(c) the statement of case or the part to be struck out is an abuse of the
process of the court or likely to obstruct the just disposal of the
 Additionally, Rule 26.1 (2) (i) empowers the Court to dismiss or give judgment on a claim
after adecision on a preliminary issue.
 The 1st
Defendant pleaded at paragraph 2of his Amended Defence as follows:
“The First Defendant denies paragraphs 6, 7, 8, 9, 10 and 11 of the Statement of
Claim and in particular that the said words could not bear the meaning ascribed to
them in paragraph 6.”
 The 2nd Defendant pleaded at paragraph 4 of his Defence as follows:
“Save that the Second Defendant admits that the call-in programme “Stay Awake”
was broadcast on 29th
its radio station on January 2007 paragraph 5 of the
Statement of Claim is denied.”
 The Claimant’s first ground of the application to strike out the Defence is as follows:
“The Defendants have pleaded non-admissions of publication of the words used
and give no reasons why they are unable to admit the same as they are required
to do pursuant to Part 10.5 (5) of the Civil Procedure RUles.”
 Part 10.5 of the Rules sets out the Defendant’s duty to set out his/its case.
Part 10.5 (3) provides:
In the defence the defendant must say which ( if any) allegations in the Claim form
or statement of claim
(a) are admitted;
(b) are denied;
(c) are neither admitted nor denied, because the defendant does not know
whether they are true; and
(d) the defendant wishes the claimant to prove.
Part 10.5 (5) of the Rules provides:
“If, in relation to any allegation in the claim form or statement of claim the defendant
(a) admit it; or
(b) deny it and put forward adifferent version of events;
the defendant must state the reasons for resisting the allegation.
 Counsel for the Claimant submits that the Defendants’ pleas of non-admission do not
constitute a proper defence on the issue of publication because they have not complied
with Rule 10.5 (3) and (5) of the CPR. Further, Counsel submits, there is nothing in the
defences, witness statements or documentary evidence that raises triable issues of fact as
to whether the words were spoken or not. The effect of the rules, he continues, is that the
Defendants failure to comply with the Rules means that this defence should be struck out.
 Counsel relied on the unreported case of Dr. Ralph Gonsalves v. Edwardo Lynch & BDS
Limited SVGHCV 406/2002, in which Madam Justice Gertel Thom stated as follows:
“The effect of Part 10.5 (3) and Part 10.5 (5) when read conjointly is that a
Defendant could only plea a non-admission when he is genuinely unable to admit
the allegation and he must state his reasons. The defendants in this case pleaded
a bare non-admission of publication.
They stated no reasons for the non-admission as they are required to do pursuant
to Part 10.5 (5). It cannot be said that the Defendants were genuinely unable to
admit or deny the allegation of publication of the words complained of. The first
Defendant is the host of the radio programme it is alleged he spoke the words
complained of. The Second Defendant is the owner of the radio station that
broadcasted the said programme. Further there was an order for discovery.”
 Counsel also relied on Civil Appeal No.18 of 2005 – Edwardo Lynch v Ralph Gonsalves in
which Barrow J.A., commenting on the ruling of Justice Thom in the above case stated,
“Unsurprisingly, the judge held that the defence was a violation of the rule because the
defendant could not claim that he did not know whether it was true that he had published
the words alleged.”
 I agree with Counsel’s submission. In his Witness Statement the Defendant has
admitted to being the “co-host , along with Mr. Junior Bacchus of the ‘Stay Awake’
programme which is broadcast on the radio Station 96.7 F.M. II The 2nd
Defendant is the
owner of the radio station . In his Witness Statement, Douglas Defreitas stated “I am the
principal shareholder and managing director of BDS Ltd., the company that owns Nice
radio 96.7 F.M.” Accordingly, the Defendants cannot be heard to say that they are
unable to admit or deny whether the words complained of were spoken. I therefore find
that Counsel has succeeded on the ‘first ground of his application.
MEANING OF THE WORDS
 The 1st Defendant at paragraph 2of his Amended Defence pleaded as follows:
“The First Defendant denies paragraphs 6, 7, 9, 10 and 11 of the Statement of
Claim and in particular the said words could not bear the meaning ascribed to
them in paragraph 6.”
At paragraph 4, he pleaded as follows:
“The First Defendant says ‘further and in the alternative that the words complained
of in the Statement of Claim do not and cannot be understood to mean what is
alleged in paragraph 6. The said words meant and could only have been
understood to be meant as a “warning.”
 The 2nd
Defendant at paragraph 5 of his Defence, pleaded as follows:
“If, which is not admitted, the said words were expressed it is denied that they
bore, or were understood to bear or were capable of bearing the natural and
ordinary meanings pleaded in paragraph 6 of the Statement of Claim or any other
defamatory meaning of the Claimant.”
 Counsel for the Claimant states that the Defendants have pleaded a general denial that
the words are not capable of the meanings which the Claimant has attributed to them, in
breach of Part 10.5 (4) (a) of the Civil Procedure Rules requires Defendants to state the
reasons for denying the allegations and they have failed to do so. Additionally, Counsel
continues, this issue has already been decided by the Honourable Master Cheryl Mathurin
by Order dated the 12th day of February 2009, whereby she held that the words are
capable of the set forth therein. The Defendants, not having appealed the said judgment,
are estopped from raising this general defence.
 In Civil Appeal No.2 of 2006 Vaughn Lewis v. Kenny Anthony, Barrow JA reviewed the
learning on the meaning of words in defamation cases, and the proper method to be
adopted by the Judge in considering and determining the issue. In paragraph 5 of the
Judgment, the Learned Judge outlines the “proper two-step method” to be used.” That
7 approach requires a judge first to consider the questions whether the words were capable
of bearing any defamatory meaning and, if so, what was the permissible range of
 In paragraph 6, the Learned Judge stated:
” When the trial is by ajudge sitting without ajury the judge is still required to first
decide the question what, if any, defamatory meanings the words were capable of
bearing. Rule 69.4 of the Civil Procedure Rules 2000 puts on statutory footing the
procedure of applying to ajudge in chambers, at any time after the service of the
statement of claim, for an order determining whether or not the words complained
of are capable of bearing a meaning or meanings attributed to in the statement of
claim. It is only if the Judge is so satisfied (whether she makes the ruling in
chambers or at the trial) that she can then go on to consider the second question,
whether in fact the words bore the alleged or any defamatory meanings.”
 The Claimant pleaded that the natural and ordinary meanings of the words complained of
meant and were understood to mean that:
(i) The Claimant intends to resort to assassination, or will conspire with others to
assassinate or instruct the assassination of Junior Bacchus in order to silence
(ii) The Claimant has used the office of Prime Minister of Saint Vincent and the
Grenadines to victimize public officers and has granted diplomatic passports to
persons in order to facilitate the traffic of illegal drugs for his own personal
(iii) The Claimant in his capacity as Prime Minister has conspired with and/or
assisted one Reuben Morgan to traffic in illegal drugs
(iv) The Claimant wrongfully and with improper and corrupt motives used the
powers of his office as Prime Minister to secure the release of one Alex
Lawrence, a person convicted of drug offences, from prison because of some
alliance, subjugation or control of him and his office by drug traffickers
including the very Lawrence.
(v) The Claimant is prepared to tarnish and has tarnished the reputation of the
sovereign State of S1. Vincent & the Grenadines in the region by openly
protecting “his drug man in S1. Vincent.”
8 (vi) The Claimant has, in relation to the above, committed serious criminal offences
relating to conspiracy and the trafficking of illegal drugs and the common law
offence of Misbehaviour in Public Office; all of which are punishable by
 The 1st Defendant in paragraph 4 of his Amended Defence pleaded that the words
complained of in the Statement of Claim do not and cannot be understood to mean what is
alleged in paragraph 6. He pleaded that “the said words meant and could only have been
understood to be meant as a warning to the Claimant.”
 In the case of Jones v Skelton (1963) 3 ALL ER 952, at page 958, Lord Morris stated as
“The ordinary and natural meaning of words may be either the literal meaning or it
may be an implied meaning or an inferred or indirect meaning; any meaning that
does not require the support of extrinsic facts passing beyond general knowledge
but is a meaning which is capable of being detected in the language used can be
a part of the ordinary meaning of words ( see Levis v Daily Telegraph Ltd.) The
ordinary and natural meaning may therefore include any implication or reference
which a reasonable reader, guided not by any special but only by general
knowledge and not fettered by any strict rules of construction, would draw from the
 As mentioned above, Master Mathurin had earlier held that the words were held to be
capable of bearing the defamatory meanings ascribed to them in the Statement of Claim.
The question before the Court is therefore, is whether the words did in fact bear ameaning
defamatory of the Claimant. I find as a fact that the words: “He has to fire Junior; this will
not satisfy him, he will now have to resort to assassinations. Expect it!” do in fact convey
such a defamatory meaning namely that the Prime Minister intends to assassinate Junior
Bacchus or to conspire with others to assassinate him. No fair-minded listener would
come to any other conclusion.
 Similarly, the words “He gave Reuben Morgan a diplomatic passport to traffic in drugs.
That’s how we know he had a diplomatic passport after he was found caught with drugs”
could only have conveyed to the ordinary reasonable listener that the Prime Minister has
conspired with and lor assisted Reuben Morgan to traffic in illegal drugs. I further find that
9 the words “Here is a fellow Prime Minister in the region saying ‘Boy the amount of drugs
coming from St. Vincent is really a problem to us in Barbados. You pick a fight with him,
you say, “look, you control your own backyard and don’t worry with me and my drug man
in St. Vincent”, to the ordinary, reasonable, fair-minded listener could only have conveyed
the meaning that the Prime Minister is not only protecting those engaged in the drug trade
in St. Vincent but that is himself involved in drug trafficking.
 To conspire to assassinate or to assassinate, to conspire with and/or to assist a person or
persons to traffic in illegal drugs and to be engaged in the trafficking of illegal drugs are all
criminal offences in the State of Saint Vincent &the Grenadines.
 The 1sl Defendant at paragraph 3 of his Amended Defence pleads that the words alleged
in paragraph 5 of the Statement of Claim are fair comments and expressions of opinions
made in good faith without malice upon matters of public interest to the people of the State
of Saint Vincent and the Grenadines namely the prevalence of illegal drugs in the
population of St. Vincent and the Grenadines, the state of crime in the country, especially
murder and the general administration of law and order and the governance of the State.
 The Claimant states as his third ground of the application to strike out the defence as
“In order to rely on the Defence of Fair Comment as pleaded in paragraph 3 of his
defence, the First Defendant must show (a) that the words are comment and not
statements of facts (b) that there is some substratum or basis of fact for the
comment contained or referred to in the matter complained of (c) that the comment
is fair in the sense of honest comment and (d) that the comment is on a matter of
public interest. The defamatory statements complained of are statements of fact
and not comment. Additionally, a plea of fair comment in a matter of public
interest cannot be used as a defence to false statements of fact. Additionally the
Claimant contends that the defence of fair comment is not properly pleaded in
accordance with Part 69.3 of the Civil Procedure Rules.”
 The basis of the defence of Fair Comment is stated in Gatley on Libel and Slander – 11 th
edition at page 335 as follows:
10 “It is a defence to an action of libel or slander that the words complained of are fair
comment on a matter of public interest.
‘The right of fair comment is one of the fundamental rights of free speech and
writing ….. and it is of vital importance to the rule of law on which we depend for
, our personal freedom.’ (per Scott L.J. in Lyon v Daily Telegraph (1943) 1 K.B.
746 CA at 753.)
The right is a “bulwark of free speech” and is one of the means by which the
common law attempts to comply with the guarantee of freedom of expression
found in art. 10 of the European Convention on Human Rights. There are matters
on which the public has a legitimate interest or with which it is legitimately
concerned and on such matters it is desirable that all should be able to comment
freely, and even harshly, so long as they do so honestly and without ‘malice.”’
 According to Gatley at page 336, “to succeed in the defence (of fair comment) the
defendant must show that the words are comment and not a statement of fact. However,
an inference of fact from other facts referred to may amount to a comment. He must also
show that there is a basis for the comment, contained or referred to in the matter
complained of, at least to the extent of indicating that what is being stated is comment.
Finally, he must show that the comment is on a matter of public interest, one which has
been expressly or implicitly put before the public for judgment or is otherwise a matter with
which the public has a legitimate concern. If the Claimant can show that the comment was
actuated by malice (which for this purpose means that the defendant was not expressing
his genuine opinion) he will defeat the plea. It is not enough, however, to show that the
comment was prejudiced or exaggerated or “unfair” in the ordinary sense of that word.”
 In Civil Appeal No.2 of 2006 – Vaughn Lewis v Kenny D. Anthony, Barrow JA stated
that “a cardinal requirement that must be met for the defence of fair comment to succeed is
that the words complained of must be comment and not fact. If they are statements of fact
and not comment the defence fails.”
 Further, at page 1012 of Gatley, “The Defendant should not, however, enter a plea of fair
comment unless he is satisfied that the facts which are relied upon in support of the plea
are true and he has reasonable evidence to support them or reasonable grounds for
11 supposing that sufficient evidence to prove them will be available at the trial, at which he
intends to support the defence.
 Counsel for the Claimant submitted that the statements made by the First Defendant are
statements of fact and are not comment. Additionally, that no evidence is adduced in the
witness statements and the pleadings whereby he can establish any of his stings against
the Claimant are true. Further, the First Defendant has not pleaded any facts or substrata
of fact to justify the charges which he has leveled against the Claimant.
 At page 1013 of Gatley, “where a Defendant alleges that the words complained of are fair
comment on a matter of public interest, he must specify the defamatory meaning which he
seeks to defend as fair comment ………The defendant should specify, usually at the start
of his pleading of the defence of fair comment, the comment in the words complained of,
which he will contend falls within this defence.” Continuing at page 1014, “the Defendant
must give details of the matters on which he relies in support of the allegation that the
words complained of are fair comment on a matter of public interest. He must give
particulars of all the facts upon which the comment is legitimately based ‘that is, of the
facts which go to the pith and substance of the matter.’ He must make the issue clear and
unmistakeable, stating what are the facts which are alleged to be true and what
expressions of opinion are the subject of fair comment.”
 Part 69.3 of CPR 2000 puts the above requirement on” statutory footing.”
Part 69.3 provides:
“A defendant (or in the case of acounterclaim, the claimant) who alleges that:
(a) in so far as the words complained of consist of statements of facts, they
are true in substance and in fact; and
(b) in so far as they consist of expressions of opinion, they are fair comment
on a matter of public interest; or
(c) pleads to like effect;
must give particulars stating
(i) which of the words complained of are alleged to be statements of
(ii) the facts and matters relied on in support of the allegation that the
words are true.
 The 1st Defendant at paragraph 3 of his defence pleaded that the words complained are
fair comments and expressions of opinions made in good faith without malice upon matters
of public interest to the people of St. Vincent and the Grenadines. He has, however, as
submitted by Counsel for the Claimant, failed to identify the words which he alleges to be
statements of fact on which on which the comments were based and has failed to give
particulars of the facts which he relied on in support of the allegations that the words are
true. Accordingly, the 1st Defendant is in violation of the rule.
 Based on the above legal principles and the submissions of Counsel for the Claimant and
applying the same to the instant case, I am satisfied that the 1st Defendant’s defence of
fair comment is utterly insupportable. The statements made by the 1st Defendant are
statements of fact and are not comment. The following statements namely:
(a) He has to fire Junior, this will not satisfy him, he will now have to resort to
assassinations. Expect it.”
(b) The setting free of Lawrence is no accident. The drug lords have now shown us
that they are in control.
(c) Since Ralph came to office he has renegade the Post Mistress General because
she call in the police in the Post Office to investigate drugs; she pay the penalty for
(d) He gave Reuben Morgan a diplomatic passport to traffic in drugs. That’s how we
know he had a diplomatic passport after he was found caught with drugs.
(e) Here is a fellow Prime Minister in the region saying, “Boy the amount of drugs
coming from S1. Vincent is really aproblem to us in Barbados. You pick afight with
him, you say, “look, you control your own backyard and don’t worry with me and
my drug man in St. Vincent.”
cannot be construed as anything other than statements of facts. Additionally, the 1st
Defendant’s purported plea of fair comment is not supported by particulars or a sufficient
substratum of fact.
” Finally, the purported plea of fair comment in a matter of public interest cannot be used as
a defence to false statements of fact. As Cockburn C.J. succinctly puts it in R v Carden
(1879) 5 Q.B.D.:
“To say that you may first libel a man and then comment upon him is obviously
44. The 2nd Defendant pleads in paragraph 6of its Defence as follows:
“Further or alternatively, if and in so far as the words set out in paragraph 5 of the
Statement of Claim were published by the Second Defendant, they were published
on an occasion of qualified privilege.
a. At all material times the Claimant was Prime Minister and Minister of Finance
of St. Vincent and the Grenadines and a Member of Parliament for the
Constituency of North Central Windward.
b. At all material times the First Defendant was the host of a radio programme
called “Stay Awake” which was broadcast on the radio station 96.7 FM ,
owned by the Second Defendant the said programme deals primarily with
current social, political, religious and health issues.
c. The “Stay Awake” programme is interactive in that listeners are encouraged
by the hosts of the programme to call in and either make suggestions or give
their opinions on the topic being discussed or on any other related matter.
These discussions provide a platform for assessing the performance and
conduct of public officers in St. Vincent and the Grenadines and occasionally
public figures in other countries.
d. As a result of the prevalence of criminal conduct in St. Vincent and the
Grenadines and with the recent spate of drug offences being committed the
Claimant in his capacity as Prime Minister has made numerous public
statements about improving the criminal justice system to effectively combat
crime and secure speedy convictions.
e. In spite of the Claimant and the Unity Labour Party’s administration constant
pronouncements on being tough on crime and the causes of crime criminal
conduct in S1. Vincent and the Grenadines is still at an unacceptable level.
f. There have been reports of drugs being discovered in the mails at the Post
g. Illegal drugs were found in the possession of a non-resident who was carrying
a St. Vincent and the Grenadines’ diplomatic passport and was arrested at an
airport in the United Kingdom.
h. A convict who was imprisoned for drug offences was alleged to have been
released by the Mercy Committee for reasons of national security. His early
release prompted a public outcry.
i. Together with constant lamentations of political victimization, polarization,
police brutality and other social ills in the country. Persons have taken to the
• call in radio programmes to express their dissatisfaction with the poor state of
affairs in the country including the manner in which the country is governed.
j. It is widely accepted that persons who hold high office in Government and
those who are responsible for public administration should be subject to
criticisms by their political opponents.
k. Unless the performances of those who are responsible for public
administration are opened to scrutiny and criticisms there is very little scope
for assessing the stewardship of those who are elected to lead and govem.
I. If, which is not admitted, the said words were published the First Defendant
had always demonstrated that he based his opinions, criticisms and
expressions on facts and the Second Defendant could not have entertained
the belief or suspicion that there was no factual foundation for the publication
of the said words.
m. In a/l the circumstances if and in so far as the words complained of were
expressed by the First Defendant (which is not admitted) the Second
Defendant was under a moral and social duty to publish to those listening the
radio broadcast since they had a corresponding interest and/or were entitled
to receive same.”
 The Claimant states as his fourth ground of the application to strike out the defence, that
this defence is without legal foundation as the defamatory statements were made on the
second-named Defendant’s Call-In Radio programme which is not an occasion which
attracts the defence of qualified privilege. Further, in his submissions, he submits that the
Defendant’s plea of qualified privilege is incurably bad, incapable of proof and has no
prospect of succeeding at trial and ought to be struck off.
 The law as it relates to the concept of qualified privilege is stated by Lord Atkinson in the
leading case of Adam v. Ward (1917) A.C. 309 at page 334:- “An occasion is privileged
where the person who makes the communication has an interest, or aduty, legal, social or
moral to make it to the person to whom it is made and the person to whom it is so made
has acorresponding interest or duty to receive it. This reciprocity is essentiaL”
 The case of Reynolds v Times Newspapers Ltd. 2001 A.C. provides that, the test of
what amounts to qualified privilege in “media” cases is whether the Defendant conformed
to the standards of “responsible journalism.”
15 “The …….duty on the journalist ( and equally his editor) ….. is to
behave as a responsible journalist. He can have no duty to publish unless he is
acting responsibly any more than the public has an interest in reading whatever
may be published irresponsibly. That is why in this class of case the question
whether the publisher has behaved responsibly is necessarily and intimately
bound up with the question whether the defence of qualified privilege arises.
Unless the publisher is acting responsibly the privilege cannot arise.”
 Lord Nichols in the above Reynolds case set out a “non-exhaustive list of circumstances
which would be relevant to the privilege issue in a’media case.”
1. The seriousness of the allegation. The more serious the charge, the more
the public is misinformed and the individual harmed, if the allegation is not
2. The nature of the information, and the extent to which the subject-matter
is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge
of the events. Some have their own axes to grind, or are being paid for
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the
subject of an investigation which commands respect.
6. The urgency of the matter. News is often aperishable commodity.
7. Whether comment was sought from the plaintiff. He may have information
others do not possess or have not disclosed. An approach to the plaintiff
will not always be necessary.
8. Whether the article contained the gist of the plaintiffs side of the story.
9. The tone of the article. A newspaper can raise queries or call for an
investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.
 The 2nd Defendant in order to bring itself within the ambit of this defence must show that it
has satisfied the above test.; namely, that having passed the duty I interest test, that “the
steps taken to gather and publish the information were responsible and fair;” in other
words, that it has complied with the standards of responsible journalism.
16  It is settled law that where privilege is claimed on the ground that there was aduty on the
defendant to make the communication and an interest in the party to whom it was made to
receive it, such duty and such interest must have existed in fact. It is not sufficient that the
defendant honestly believed he was under a duty to make the communication and that the
person to whom he made it had an interest in the subject matter.
 The 2nd
Defendant pleaded that he was under a moral and social duty to publish to those
listening to the radio broadcast since they had a corresponding interest and/or were
entitled to receive same.
 Applying the Reynolds test to the present case, I am of the view that the 2nd
not satisfied the test for the following reasons:
(a) The allegations made against the Claimant are serious in nature. Given the
Claimant’s position as Prime Minister, these allegations are “hugely
(b) That no steps were taken to verify the information.
(c) That no steps were taken to seek the Claimant’s version.
(d) That there was no duty to communicate damaging allegations which are
unsubstantiated and no public right or interest in receiving it.
 I therefore accept the submission of Counsel for the Claimant that the Second Defendant’s
pleaded defence of qualified privilege is incurably bad, incapable of proof and has no
prospect of succeeding at trial and ought to be struck out.
 In my view, therefore, when the second Defendant published the words complained of,
it “stripped (itselD of the cloak of privilege” (to adopt a phrase of Lewis C.J. in the Court
of Appeal decision A.G. of Grenada et al vMilne).
 I therefore find that the defence of qualified privilege does not avail the Second Defendant.
 In conclusion, it is my considered opinion in this case it is clear that the Defence of the
Defendant has no reasonable chance of success, is incurably bad, wholly
unsustainable, without merit and is an abuse of the process of the Court and should be
[57J My Order is as follows:”
1. The defence is therefore struck out
2. Judgment is hereby entered for the Claimant as follows:”
(a) Defendants are liable jointly and severally to the Claimant for damages to
(b) An injunction is granted preventing the Defendants whether by
themselves, their respective servants and/or agents or howsoever
otherwise from further speaking or publishing the said or similar words
defamatory of the Claimant.
(c) Prescribed costs to the Claimant based on the quantum of damages
. …….. ~.–f.-. ………….. ..
High Court Judge