Awuh Vrs Godigbe [2022] GHAHC 71 (17 November 2022)

IN THE HIGH COURT OF JUSTICE HELD AT DENU ON THURSDAY THE 17TH DAY OF NOVEMBER, 2022 BEFORE HER LADYSHIP JUSTICE NAANA BEDUADDO ESQUIRE, THE HIGH COURT JUDGE AWUH ADOLEY MERCY } PLAINTIFF SUIT NO. E4/20/2020 OF ADOTEYKOPE-AFLAO VRS. GODIGBE AKOS DEFENDANT J U D G M E N T The Plaintiff herein instituted this action against the Defendant herein on 17th January, 2020 for the following reliefs: 1) GH₵20,000.00 as General damages for slander and Defamation in lieu of any reasonable or tangible legal explanation to substantiate the utterances complained of in the statement of claim. 2) An order of this Honourable Court directed at the Defendant to beat a gong- gong personally in or around Adotekpe-Aflao Community to denounce the Plaintiff of the utterance aforesaid. 3) An order of perpetual injunction be decreed restraining the Defendant either by herself, her agents, assigns etc. from in any manner using the same and or similar defamatory utterances against the Plaintiff. 4) Any other reliefs that the court deems fit. PLAINTIFF’S CASE Plaintiff, who is a trader and resides at Adotekope-Aflao, is married to the Defendant’s brother. The Plaintiff avers that on 4th November, 2019 around 5:00 am her husband complained of stomach pain and she sent him to Central Hospital, Aflao. The Plaintiff further avers that her husband was admitted at the said hospital where he was undergoing treatment. He later asked her to prepare rice and stew for him. Plaintiff avers that she went home to cook the rice and returned to the hospital around 7:00pm and she met the Defendant and another lady there. Plaintiff avers that without any provocation, in the sight and to the hearing of the people at the hospital, which is a public place, the Defendant used slanderous, abusive and defamatory words against her. The said words were allegedly said in the Ewe language. To wit “Adoley, mega kor nududu na norvinya o, elebena edafor, efuye nefoa menye norvinye ye dowo o. Ne eyividzike la akuo”. This literally means in English “Do not give the food to my brother, you slept with another man aside your husband, the pregnancy you are carrying is not for my brother so if the time is due for your delivery, you will die”. The Plaintiff further avers that because of this embarrassment at the Hospital, she left the hospital whilst her husband was still on admission. Plaintiff claims that the Defendant repeated those same, slanderous, abusive and defamatory words in the area in which they life. Plaintiff avers that the alleged utterances of the Defendant have made her become a public enemy which has affected her business and private life. Plaintiff further claims that after the hospital incident, her husband followed her to the house and asked her to go to her father’s place so that she can report the incident to her father. She further avers that when she got to her father’s house, the defendant and the lady who was with her at the hospital were in her father’s house repeating the same foul words to him and claiming that it was revealed to them by a certain fetish priest. Plaintiff further claims that she summoned the Defendant before Torgbui Anthony Adzabli at Adefianu and during the arbitration, the Defendant was allegedly not cooperating with Torgbui so Torgbui said she (Plaintiff) should take the matter to court. Plaintiff further claims that the behaviour of the Defendant was a calculated attempt just to disparage the image of the Plaintiff herein. The Plaintiff avers that she has been completely injured by the Defendant because she claims that the Defendant has succeeded in jeopardizing her character and reputation as a responsible and respectable married woman among rightful thinking persons in and around the Adotekope-Aflao community. The Plaintiff finally submits that the Defendant will not desist from using similar or the same defamatory words against her if the Defendant is not brought to book. On 29th January, 2020 the Defendant filed her Statement of Defence. She claimed therein that the Plaintiff’s brother who is her junior brother had been suspecting the Plaintiff of having extra marital affairs with other men some time ago. Defendant therefore claims that as a result, the Plaintiff’s husband secretly connected his mobile phone to the Plaintiff’s mobile phone which enabled him to receive and listen to all calls that came to the Plaintiff’s phone. Defendant further avers that one day the Plaintiff sought permission from her husband to visit her father at Adafienu but about four (4) houses later, her husband (Godigbe Innocent) had a call connected, through the Plaintiff’s phone and heard the Plaintiff telling a man that she had arrived in Accra and that he should come a pick her for their usual rounds as fast as possible to enable her return to Aflao before dusk. Defendant further avers that the Plaintiff’s husband then called her family and a meeting was convened by both families and the matter was discussed. She further alleges that after a series of interrogation of Plaintiff and lengthy deliberations, Plaintiff was allegedly sacked from her marital home by her husband. She went back to her father’s house allegedly and stayed there for nearly two (2) years before retuning after several pleadings by Plaintiff’s maternal uncle and the Assemblyman for forgiveness and pardon. Defendant further averred in Paragraph 8 of her Statement of Defence that when she heard of her brother’s sickness she went to the hospital to see how he was faring and met their biological parents and the Plaintiff at the Patient’s bedside and in the presence of some other patients she advised the Plaintiff that she cannot cook for her brother to eat since in Ewe tradition, it is not permitted for a married woman suspected of flirting with other men to cook for her sick husband to eat or else he will die after eating it. She further claimed that her parents also supported the Defendant’s advice and asked the Plaintiff to leave with the food to avoid any evil befalling their son and the Plaintiff left. The Defendant finally contends that the Plaintiff is not entitled to any of the reliefs being sought and she urges the Court to dismiss this suit because in her estimation if is only a fabrication by the Plaintiff to seek the sympathy of the Court and misdirect justice. ISSUES The main issues for determination by this Court are as follows: 1) Whether or not at the Hospital, in the public place the Defendant used slanderous, abusive and defamatory words against the Plaintiff in the sight and hearing of other persons. 2) Whether or not the utterances of the Defendant have made the Plaintiff become a public enemy which has affected her private life as well as her business life. The Plaintiff called one witness in support of her case. And the Defendant called two witnesses in support of her case. The Plaintiff’s witness, Godigbe Innocent testified that on 3rd November, 2019, he had a stomach ache when he returned from work and the pain lasted throughout the night. He says that the next day, just as he was about to go to the hospital, the Defendant came to see him and asked about his condition and he told her that he had a stomach ache. The Defendant told her she had someone who could cure him but he chose to go to the hospital instead. The witness testifies that he was admitted at the hospital and his stomach pain was attributed to eating late and eating cold food by the Doctor. He further states that his wife (the Plaintiff) brought him food around 7.00 p.m. on the said day. He says that when his wife was about to give him the food, the Defendant, together with a certain woman came in and started insulting his wife in the presence of nurses, patients, his parents and other visitors in in the ward. He says that the Defendant told the Plaintiff that she should not give the food to him because she was an adulterous woman who was carrying another man’s pregnancy. The Defendant allegedly cursed the Plaintiff that she would die when giving birth. The Defendant allegedly repeated those words that she said to the Plaintiff in the area where the parties live and claimed that the information was revealed to her by a Native Doctor or Fetish priest. He testified that after he was discharged from the hospital, he reported his sister’s conduct to his father who advised his sister (the Defendant) to desist from insulting the Plaintiff but she did not heed the advice. He further testified that the Plaintiff reported the matter to her family and the matter was sent to the arbitration Court of Torgbui Adzabli and because of the Defendant’s disrespectful behaviour Torgbui Adzabli told the Plaintiff herein to seek justice where she deems fit. Under cross-examination by the Defendant, Plaintiff’s witness debunked all the Defendant’s claims. Some extracts from the said cross examination are: Q. Do you recall that one day I visited our father and you at our father’s house and that day I noticed pampers and other items for children and I asked you the whereabouts of your wife? Then you informed me that, your wife told you that she was going to Adafianu but she rather went to Accra. He answered: A. No, my Lady. I never had such a discussion with the Defendant herein. Q. Have you never approached me showing me nude pictures of your wife which were sent to another man? And I questioned, you on how you are able to determine that those pictures are the rude pictures of your wife. You responded that it is your wife’s image. A. My Lady, it is not correct. I have never had any such conversation with you (Defendant). When he was asked: Q. Are you trying to say that I, Akos have ever informed you about your wife committing adultery? A. “Yes my Lady, You have and you did not say it to me alone but also in the presence of other people.” After her testimony, the Defendant called two witnesses in support of her case. The first witness was Paul Korbla Godigbe who is the Defendant’s father. He filed his witness statement on 5th October, 2020. In the said witness statement, he averred that his son, Innocent Godigbe had been suspecting that his wife (Plaintiff) had been having an extra-marital affair with other men and for that reason, he secretly connected his mobile phone to the Plaintiff’s phone which enabled him to listen to conversations between the Plaintiff and callers to her phone. He further claimed that one day the Plaintiff informed her husband that she wanted to visit her father at Adafianu but surprisingly the Plaintiff went to Accra and called a certain man on her mobile phone telling him that she had arrived in Accra so he should come and pick her for their usual rounds as fast as possible to enable her return to Aflao before sunset. He further claimed that when his son (Plaintiff’s husband) heard this he called the Plaintiff and asked her if Accra is the Adafianu she told him she was going to. At a family meeting, convened by the Plaintiff’s family and attended by both families of the Plaintiff and her husband, to resolve the said issue, the Plaintiff had purportedly admitted the allegation that had been levelled against her by her husband. This led to her husband asking her to return to her father’s house which she purportedly did for almost two years. He claims that it took the pleading of her maternal uncle and the Assemblyman of Adafianu to get the Plaintiff’ husband to accept her back to their matrimonial home. In paragraph 9 of his witness statement, the witness said that at the hospital, when the Plaintiff brought food for her sick husband who was on admission, the Defendant told Plaintiff that her brother will not eat the food on the grounds that a married woman suspected of flirting with other men is forbidden from cooking food for her husband when he is sick else, he will die if he eats the food and they, her family members also consented to her point. He further claimed that it is not true that a bitter quarrel ensued between the Plaintiff and the Defendant in a public place because they were all present when the Defendant made her point in the ward. The Defendant’s next witness, Agbaku Agbodzinshie Papa, testified that the family sat to resolve the marital problems between the Plaintiff and her husband on several occasions due to the Plaintiff’s husband’s suspicion that she was having extra-marital affairs with other men. He further testified that because the Plaintiff allegedly admitted that she had been unfaithful to her husband, it was proper for the Defendant to protect her brother from the consequences involved since traditionally, it is believed that a married woman having extra marital affairs brings curses on herself which can cause the death of her husband if he does not take precautionary measures to protect himself. Under cross-examination, the Defendant’s first witness testified that neither his son nor his wife had ever complained to him that the Plaintiff is flirting with other men. He seemed to contradict himself as he gave his evidence. He seemed not to be fully aware of the contents of his own witness statement. When he was asked about his testimony that it took the intervention of the Plaintiff’s maternal uncle and the Assemblyman of Adafianu to get the Plaintiff to return to her marital home, he answered that it was the information gathered by the Defendant’s second witness. He knew nothing about it. When the Defendant’s second witness was asked under cross-examination whether he was present at the hospital when the Plaintiff took food to her husband in hospital but was asked not to serve him the said food, he answered that he was not present. He subsequently went on to discuss other matters which he claimed occurred subsequently. LEGAL ANALYSIS In the case of Amoako Vrs. Takoradi Timbers Limited [1982-83] GLR @ 69, it was held that for an action of defamation to succeed, the Plaintiff must prove that the defamatory words were communicated to at least one person other than the Plaintiff. In an action for defamation, the Plaintiff needs not prove the exact words uttered by the Defendant in order to succeed. Words that prohibit interaction between the Plaintiff and other citizens in his/her community are described as defamatory. Reference: Ahevi Vrs. Akoto IV [1993 – 94] GLR 512. The issues for determination are: 1) Whether or not at the Hospital, in a public place, the Defendant used, slanderous, abusive and defamatory words against the Plaintiff in the right and hearing of other people? 2) Whether or not the utterances of the Defendant have made the Plaintiff become a public enemy which has affected her private life as well as her business life. ISSUE 1 In accordance with the case of Amoako Vrs. Takoradi Timber Limited supra, all the Plaintiff needs for an action of defamation to succeed is to prove that the alleged defamatory words were communicated to at least one person other than the Plaintiff. In the instant case, the defamatory words were uttered at a hospital which had a number of people including nurses and other hospital staff and patients around and within listening range. Since the hospital is a public place, the first element has successfully been proven. Under Ghanaian customary law, words which caused or produced any injury to the reputation of another were defamatory and if the said words were false, they were actionable. Words imputing witchcraft, adultery, immoral conduct, crime and all words which sounded to the disreputation of a person of whom they were spoken were actionable. Especially where there is no evidence to back it up as occurred in the instant suit. Reference: Serwah Vrs. Sefa [1984 – 86] 2 GLR 390. It was decided in the case of Abu Vrs. BPI Bank [2014] 68 GMU 115 at 141 – 144, Osei JA held that “…… words are capable of being defamatory of a Plaintiff if they tend to hold him up to contempt, ridicule or scorn or if they tend to lower him in the estimation of right-thinking members of society generally, or if they cause him to be shunned or avoided. In the English Case of Grubb Vrs. Bristol United Press Ltd. [1962] 2 ALL ER 380 @ 392, one of the modes of establishing libel suggested by Lord Upjohn was proof that the words published were defamatory of the Plaintiff in their natural and ordinary meaning. To establish the discovery of the ordinary meaning according to Lord Reid in the case of Lewis Vrs. Daily Telegraph [1963] 2 ALL E. R. 151, he stated as follows: “There is no doubt that in actions for libel, the question is what the words would convey to the ordinary man, it is not one of construction in the legal sense. The ordinary man does not live in the Ivory tower and he is not inhibited by knowledge of the rules of construction.” In the instant case, the Plaintiff was called an adulterer and prevented from feeding her sick husband at the hospital because of the said adultery. The Defendant was not able to prove any of her allegations and the witnesses she called seemed to contradict instead of support her case. Whilst DW1 said under cross-examination that neither his son nor his wife have ever complained to him that the Plaintiff is flirting around with other men. This sharply contradicts his averment in paragraph 2 of his Witness Statement where he stated as follows “My son Innocent Godigbe has for some time been suspecting Plaintiff of having extra-marital affairs with other men …….” And this greatly compromises his credibility as a Witness. His written evidence clearly contradicted his oral evidence in Court. In the case of Lutterodt Vrs. Nyarko [1999 – 2000] 1GLR 29 the Court ruled that under NRCD 323 Section 80(2) the Court is entitled to consider statements or conduct consistent or inconsistent with the testimony of the witness at the trial to prove the credibility of the witness. Where evidence in Court is in conflict with his previously written Statement, it was held in the case of State Vrs. Otchere [1963] 2 GLR 463 that the oral evidence in Court was said to be unworthy of credit. In Bour Vrs. The State [1965] GLR 1 it was ruled that the evidence in Court should not be given much weight. The Defendant’s first witness is, therefore regarded as a witness who lacked credibility. In the case of the Defendant’s second witness, he was not present when the incident at the hospital took place. Whatever he testified about had little or no effect on the case at hand. He chose to go on a tangent on his own and did not provide one shred of evidence to support his testimony. He could also be held to be an unreliable witness since he had no first-hand knowledge of the subject matter of the suit. The Defendant herself contradicted herself on several occasions. In her written address she stated that her father had to prevent the Plaintiff from attending to her sick brother because she had had extra-marital affairs with other men. This Statement was contradicted by her father, who was her first witness when he stated that it was the Defendant who stopped the Plaintiff from feeding her sick husband and they the family, supported her action. She also stated in her Statement of Defence that she is the one who advised the Plaintiff not to feed her husband because of the fact that she had committed adultery and she was supported by her family. She did not produce a shred of evidence to support her case. She woefully failed to prove any of her allegations. She claimed that her brother, who is the Plaintiff’s husband gave her all the information about his wife’s alleged extra-marital affairs. He however discredited her completely when he denied ever given her any such information about his wife. He also accused her of harassing his wife to the extent that she cursed the Plaintiff that she would die whilst given birth because she was carrying another man’s child. She was full of contradictions and as such the Court does not put much weight on her evidence. According to the case of Egbetorwokpor Vrs. The Republic [1975] 1 GLR 585, CA that a witness whose written evidence contradicts what he/she says in Court will be held as unreliable and his evidence in Court should be regarded as negligible or nugatory …….” From the foregoing this Court hereby rules in favour of the Plaintiff and holds that the words published by the Defendant against the Plaintiff were indeed defamatory. This Court hereby grants the Plaintiff all the reliefs endorsed on her Writ of Summons and Statement of Claim. In addition, costs of GH₵5,000.00 have been awarded against the Defendant herein. (SGD) ………………………………………. H/L NAANA BEDU-ADDO (MS.) (JUSTICE OF THE HIGH COURT) 17/11/22 14