Apetsi Vrs Torku and Another [2022] GHADC 197 (11 August 2022)

IN THE DISTRICT COURT HELD AT DZODZE ON THURSDAY THE 11TH OF AUGUST, 2022 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A5/07/2021 APETSI JOSEPH PLAINTIFF VRS KWAME TORKU & ANOR. DEFENDANTS JUDGMENT PARTIES PLAINTIFF PRESENT DEFENDANTS PRESENT INTRODUCTION/BACKGROUND: This case commenced with the issuance of a Writ of Summons and Statement of Claim by the Plaintiff on 17th of December, 2020 claiming the following reliefs; a. An order to restrain the defendants from further use of the defamatory words against the plaintiff. b. General Damages for defamation and c. Costs. THE CASE OF THE PLAINTIFF The Plaintiff per his pleadings and evidence before this court states that he is a farmer and a resident of Penyi Shame whiles the Defendants are also his family relatives who reside in Accra. The Plaintiff avers that the Defendants initiated a suit against him in this Court, which matter was referred for settlement by the Court’s connected Alternative Dispute Resolution mediators. The Plaintiff avers that whiles they were before the mediator for settlement the Defendants rained insults on him by the use of words which he deemed defamatory in nature. 1 | P a g e The Plaintiff avers that the Defendants used words against him in the Ewe language which is translated into English language as follows; “You Joseph your grandfather is not a member of our family, his mother was pregnant before she got married to our great grandfather, therefore he is not a member of our family”. The Plaintiff avers that these words were first uttered by the 1st Defendant and same was repeated by the 2nd Defendant before the mediator in the Court’s premises which he considers a public place. The Plaintiff avers that, he felt very embarrassed and defamed by the use of those words against him. Hence his action. DEFENDANT’S CASE The Defendants in their defence, denied the claim by the plaintiff that they are relatives of the same family. The Defendants admitted the Plaintiff’s claim on the assertion as alleged but stated that during the settlement discussions, an issue came up when the plaintiff was referred to as their relation and they sought to clarify the point that the plaintiff was not a member of their family. The Defendants stated that in their explanation, they made reference to what they had been told by their grandfather and sought to bring that information to the knowledge of the plaintiff. The Defendants stated that the statement was not made with the intention to defame the plaintiff and also not intended to subject him to ridicule but was just to explain the point that the plaintiff is not their family member. THE LAW Burden of Proof The general rule in civil cases is that the party who in his pleadings or writ raises issues essential to the success of his case assumes the onus of proof. See Sections 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) as well as the cases of Takoradi Flour Mills vrs. Samir Faris [2005-2006] SCGLR 882 @ 900 and Gihoc Refrigeration & Household vrs. Jean Hanna Assi [2005-2006] SCGLR 458. The Plaintiff in this case had the burden to prove on a balance of probabilities as far as the basic elements of the Tort of Defamation are concerned. 2 | P a g e A defamatory statement is defined as one which tends to lower the claimant in the estimation of right-thinking members of society generally. This may be done by exposing the claimant to hatred, ridicule or contempt or causing people to shun or avoid him or to discredit him in his office, trade or profession. (See OFFEI STEPHEN; THE LAW OF TORTS IN GHANA TEXT, CASES & MATERIALS, 2014). In the case of OWUSU-DOMENA V AMOAH [2015-2016] 1 SCGLR 790 at page 802, the Supreme Court speaking through Benin JSC stated that a Plaintiff in an action for defamation must plead and lead evidence on the following matters in order to succeed; i. ii. iii. iv. v. That there was a publication by the Defendant; That the publication concerned the Plaintiff; That the Publication was capable of a defamatory meaning in its natural ordinary sense; Alternatively, or in addition to (iii) above, that the facts and/or circumstances surrounding the publication, was defamatory of him, the Plaintiff; and If the Defendant seeks the defence of qualified privilege or fair comment, that the Defendant was actuated by malice. To this list, the Supreme Court in the case of BENJAMIN DUFFOUR VRS BANK OF GHANA & GRAPHIC COMMUNICATIONS GROUP LTD. CIVIL APPEAL NO. J4/48/2021, Dated 9th February, 2022 inserted point (vi) which reads; “that the defendant has no defence”. The justification for the addition of point (vi) in the Duffour case as stated by the Supreme Court was to expand the room to include other defences of equal importance such as absolute privilege in respect of reports of executive, parliamentary or judicial proceedings, justification and consent. ISSUES FOR DETERMINATION Based on the pleadings the issues to be determined in this case are as follows; a. Whether or not the Defendants made the alleged assertions against the Plaintiff? b. Whether the assertions will amount to a defamation of the Plaintiff? ANALYSIS ISSUE (A): WHETHER THE DEFENDANTS MADE THE ALLEGED ASSERTIONS AGAINST THE PLAINTIFF? In Paragraphs 4, 5, 6, 7, 8 and 9 of their defence, the defendants admitted to making the assertions claimed by the plaintiff but stated further that the assertions were intended to clarify a point that came up in the course of the mediation. 3 | P a g e In the case of Kusi & Kusi v. Bonsu [2010] SCGLR 60, it was held by the Supreme Court that; “where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue”. The effect of the Defendant’s admission of the paragraphs indicated above amounts to an acceptance that the assertions were made. The question therefore is whether the said assertions will amount to defamation? ISSUE (B): WHETHER THE ASSERTION IF MADE AMOUNTS TO DEFAMATION OF THE PLAINTIFF? From the evidence of the parties the assertions were made during a mediation as recommended by the Court. Article 127(3) of the 1992 Constitution of Ghana provides that, “a Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of judicial power”. In his book, Introduction to the Law of Torts in Ghana, Second Edition at page 249, the learned author Kofi Kumado states that the above mentioned privilege extends to include statements before tribunals, committees and commissions and does not only include judges but to counsel, jurors, witnesses and parties”. By practice as provided in the Judicial Service of Ghana Court Connected ADR Practice Manual, 2nd Edition, page 11, a mediator cannot be held liable for any act or omission in the discharge of his duty unless the act or omission is in bad faith or criminal. In the recent case of CHANTELLE T. S KUDJAWU VRS. GLORIA ASSAN ARHIN, Suit No. GJ/0535/2021, dated 31st May, 2021, the High Court of Ghana in making reference to holdings in the recent India case of Atul Kumar Pandey vs. Kumah Avinash Ga No. 507 or 2018 with CS No.1 21 held that absolute privilege is not confined to what is said in the presence of the court or tribunal but extends to statements made in preparation for judicial proceedings. The Constitution of the Republic of Ghana, 1992, Article 11 makes the common law part of the laws of Ghana. For this reason, the absolute privilege position with regard to judicial proceedings apply to statements made by Judges, jurors, parties, counsel and witnesses. CONCLUSION 4 | P a g e The evidence and pleadings of the parties indicate that the statement the Defendants are said to have made was during mediation. In the opinion of this court, the assertions made by the Defendants in the course of settlement qualifies for the defence of absolute privilege and the Defendants cannot be held liable for the tort of defamation. In the circumstance, the suit is accordingly dismissed. Cost of GH₵1,000.00 is awarded to the Defendants. (sgd.) NELSON DELASI AWUKU MAGISTRATE 5 | P a g e