DWUMAH VRS MUMUNI AND ANOTHER (E7/1/19) [2022] GHAHC 139 (9 December 2022)

IN THE HIGH COURT OF JUSTICE, WESTERN REGION, HELD AT SEKONDI ON THE 9TH DAY OF DECEMBER, 2022 BEFORE HER LADYSHIP AFIA N. ADU-AMANKWA (MRS.) J. SUIT NO. E7/1/19 BAFFOUR ANTHONY DWUMAH PLAINTIFF VRS. 1. ISSHAKU MUMUNI 2. JOSEPH DONKOR 1ST DEFENDANT 2ND DEFENDANT JUDGMENT The plaintiff in this action seeks to recover damages from the defendants for defaming his character and reputation. The words complained of were that the plaintiff had bribed a judge with GHc300,000.00 to secure a judgment in favour of his clients. The plaintiff is a lawyer and a senior member of the Ghana Bar Association. He holds many positions in religious and social circles and represents many clients both inside and outside the country. The plaintiff represented some families of Apowa to sue the Apowa stool over title to the Apowa lands before the High Court, Sekondi. After a full trial, the High Court determined the matter in favour of the plaintiff’s clients against the Apowa stool. It is the plaintiff’s case that, unknown to him, whilst the case was pending, the 1st defendant, an interpreter of the Judicial Service, collected an amount of GHc120,000.00 from the Apowa stool and promised to give the money to the presiding judge to give judgment in favour of the Apowa stool. Consequently, when the Apowa stool lost the case, the stool, through its head of family and others, complained to the 2nd defendant, a security officer stationed at the Takoradi District Court, to help them find out why the Apowa stool lost the case in spite of paying GHc120,000.00 to the judge. According to the plaintiff, the 2nd defendant, ebusuapanyin Aziangua, one Mallam Yussif and a spiritualist of the Apowa stool met with the 1st defendant to get to the bottom of the matter. In the course of the meeting, the 1st defendant, among other things, uttered the following words in Twi as endorsed on the writ of summons in defence of himself: “Sika a mode maa me no mede koo. Na mete se Plaintiffs no lawyer eye Mr. Baffour Dwumah kohuu Methodist Sofo bi owo Cape Coast a onnim Judge no maa odii ne enim de cheque of GHc300,000.00 se ode kema Judge no. Oko ye no Judge no anngye sika no. Megye di se ekyire no osan de sika no koo nti na emaa Judge no bua asem no maa Plaintiffs de tia Defendants”. It was also the plaintiff's case that, unknown to those who had gathered at the meeting, the 2nd defendant recorded the statements made by the various personalities and copied them unto a pen drive. The 2nd defendant subsequently sent copies of the pen drive with the audio recording to the Complaints Unit of the Judicial Service. The plaintiff contends that the false publications made by the defendants have defamed his character and hard-won reputation and caused him to lose some existing and prospective clients resulting in financial losses to the tune of over GHc50,000.00. He further contends that the defendants' conduct has caused him severe emotional and psychological distress hence the action against them. The defendants have denied the allegations against them. The 1st defendant has denied attending any meeting with the stool family of Apowa or uttering the words the subject matter of the suit. He has also denied collecting GHc120,000.00 from anyone to influence a judge. According to him, in September, 2018, the Public Relations and Complaints Unit of the Judicial Service served him with a notice of a complaint lodged by one Alhaji Usifu Imman against him regarding an amount of GHc120,000.00 he(Alhaji) had given to him. He denied the allegation. Subsequently, Alhaji Imman wrote back to the Judicial Service to withdraw the false allegation against him and to apologize to him for the false allegation. In his statement of defence, the 2nd defendant averred that in the course of his regular duties, he had information of corrupt activities involving some members of the Judicial Service, which he investigated. He handed over his investigations to the regional administrator, who handed them over to the Complaints Unit of the Service. After the close of pleadings, the following issues were raised for resolution: i. Whether or not the 1st defendant after the judgment of the High Court met elders of the Apowa stool and the Imam called Alhaji Usiful in the presence of the 2nd Defendant. ii. Whether or not during the meeting the 1st defendant uttered the words described on the endorsement of the writ. iii. Whether or not the audio recording carried out by the 2nd defendant took place at the meeting between the elders of the Apowa /Alhaji Usiful and the 1st defendant in the presence of the 2nd Defendant. iv. Whether or not the voice on the audio recording is that of the 1st defendant. v. Whether or not the 2nd defendant played the audio recording to the hearing of 3rd parties. vi. Whether or not the playing of the audio recording by the 2nd defendant to the Regional Union Chairman and the complaint’s union was in accordance with the procedure of his employment. vii. Whether or not the words uttered by the 1st defendant is defamatory. viii. Whether or not the plaintiff is entitled to his claim. BURDEN OF PROOF The general principle of law is that the plaintiff must prove his case; that is, he must prove what he alleges. In other words, the party who raises an issue essential to the success of his case in his pleadings assumes the burden of proving it. As it is the plaintiff who alleges, he is enjoined by sections 10(2), 11(4) and 12(1) of the Evidence Act, NRCD 323, to prove his case on the preponderance of probabilities. Section 12(2) of the Evidence, Act, supra, defines preponderance of probabilities as: “that degree of certainty or belief in the mind of a tribunal of fact or the courts by which it is convinced that existence of a fact is more probable than its non-existence. Thus, in the case of Don Ackah vrs. Pergah Transport [2011] SCGLR 728, the Supreme Court on the burden of proof, stated that: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of fact in issue that has the quality of credibility short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence.” The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins; if not, he loses on that particular issue. See Ababioh vrs. Akwasi III [1994-95] GBR 774 at 775 and Bank of West Africa vrs. Ackun [1963] 1 GLR 176. MERITS Defamation is, in essence, the act of publishing an untrue statement which injures a third party’s reputation. The term defamation has been subject to several interpretations. The Editors of Halsbury’s Laws of England (4th ed), (Reissue), Vol 28, page 7, para 10 define it as: “A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business”. Modern defamation consists of the twin torts of libel and slander. Written defamation is libel, and spoken defamation is slander. Black laws dictionary defines libel as “A defamatory statement expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast”. It also defines slander as “a defamatory assertion expressed in a transitory form, especially speech”. The rationale behind the distinction is that the impermanence and transient nature of the spoken word make it reasonable for the lax slander as opposed to the permanence of the written word, which justifies the strict sanction of libel. But the distinction between these two forms of defamation can sometimes be overly simplistic given that many things that are spoken are also “printed” in the sense that they may be transcribed or published on a website. Modern technology blurs these lines such that it is often wondered if skywriting or spoken word, which is in a permanent form such as the gramophone, is slander or libel. However, the alleged defamation complained of in this case is more of slander as it is the plaintiff's case that the 1st defendant uttered the words at a meeting with the 2nd defendant and others. To prove his claim against the defendants, the plaintiff must first prove that the defendants made a statement which concerned him. According to the plaintiff, at a meeting, the 1st defendant uttered the following words: "Sika a mode maa me no me dekoo. Na mete se plaintiffs no lawyer eye Mr. Baffour Dwumah kohuu Methodist Sofo bi a owo Cape Coast a onnim Judge no maa odii ne enim de cheque of GHc300,000.00 se ode kema judge no. Oko ye no Judge no anngye sika no. Megye di se ekyire no osan di sika no koo ntina emaa Judge no bua asem no maa Plaintiffs de tia Defendants". This was translated into English as: “I sent the money you gave me. I have heard that the plaintiff’s lawyer in the person of Mr. Baffour Dwumah went to see a Methodist Minister based at Cape Coast who knows the Judge to lead him to the Judge and presented a cheque endorsed with an amount of GHc300,000.00 to the Judge. The Judge refused to take the cheque. I am convinced later Mr. Baffour Dwumah went back and gave the money to the Judge. That explains why judgment was given in favour of the Plaintiffs against the Defendant.” At this juncture, it is necessary to examine the facts leading to the making of this statement. The plaintiff testified that he represented his clients who were the plaintiffs therein in the consolidated suit titled Ebu. Robert Cudjoe vrs. Nana Amua Gyebu, Suit No. E1/58/13, Ebu. Stephen Amoah vrs. Nana Amuah Gyebu, Suit No. E1/52/13 and Ebu. Opo Kwame vrs. Nana Amuah Gyebu, Suit No. E1/55/13, which were pending before Her Ladyship, Mrs. Hannah Taylor, sitting at High Court 2, Sekondi. The cases went through a full trial, and on 31st July, 2018, judgment was delivered in favour of his clients. When the judgment was delivered, he had travelled to the United States of America and returned in September 2018. On his first day at the office, his office clerk, in the person of Mr. John Toe, informed him that he had heard rumours going around at the High Court premises that he had given a bribe to the presiding judge, and that explained why his clients won the case. Mr. Toe added that in the morning, Mr. Fredrick Faidoo confronted him on the allegations and intimated that there was an audio recording to confirm the allegations. Two days later, Mr. Jonathan Kofi Asempa called him on the phone and repeated what his clerk had told him and added that the news was all over and that it had become a subject of discussion in all the courts. Mr. Asempa also added that he had listened to the audio recording from the 2nd defendant, and what he heard seemed credible and was very disturbing. He became alarmed and started his investigations. He met with Mr. Jonathan Asempa and the Commercial Court and High Court registrars. They all confirmed hearing the case. He also met the officer in charge of the Complaint Units of the Judicial Service, Western Region, Sekondi, the Regional Administrative Officer, Judicial Service, Sekondi and the 2nd defendant. He met the 2nd defendant at the office of the registrar, Commercial Court Sekondi. He confirmed the story and intimated further that the 1st defendant made the allegations in his presence and that he was the one that carried out the audio recordings. The Western Regional Head of the Complaints Units of the Judicial Service also confirmed receipt of the complaints of the elders of the Apowa stool against the 1st defendant as having collected money from them, promising to give it to the judge for the stool to win the case. The officer added that a copy of the audio recording had been submitted to his office by the 2nd defendant. He also intimated that the complainants were demanding their money from the 1st defendant and that investigations into the matter had begun. According to the plaintiff, what he gathered from the various meetings was that during the pendency of the case, the 1st defendant intimated to the head of the stool family of Apowa in the person of Nurudin Aziango and some of the elders of the stool that he could assist the stool in winning the case and demanded an amount of GHc120,000.00 to be given to the judge. The head of the family paid this money to him through an Imam. When Apowa stool lost the cases, the head of family, the Imam and some elders of the stool of Apowa contacted the 2nd defendant and informed him of the GHc120,000.00 that was given to the 1st defendant to be given to the judge. They asked for the assistance of the 2nd defendant in confronting the 1st defendant. Subsequently, a meeting was held with the elders of the Apowa stool, including the head of family, the Imam, the 1st defendant and the 2nd defendant, to demand answers as to why the Apowa stool lost the case. At the meeting, the 1st defendant uttered the words as endorsed on the writ, which is the subject matter of this case. The 2nd defendant recorded what transpired at the meeting without the 1st defendant’s knowledge. The plaintiff tendered the audio recording transcription in evidence as exhibit “S”. The plaintiff further testified and identified speakers Nos 4 and 1 in the transcript as that of the 1st defendant and 2nd defendant, respectively. The 1st defendant denies ever uttering the words alleged by the plaintiff and contends that the allegation is a malicious falsehood orchestrated to tarnish his image. He denied receiving GHc120,000.00 from Ahmed N. Aziagua to influence any judge. He further denied attending any meeting with the stool family of Apowa or any such meeting with the 2nd defendant. In his testimony, the 1st defendant stated that he worked as an interpreter with the Judicial Service. In September 2018, he received a notice of complaint from the Public Relations and Complaints Unit of the Judicial Service lodged by one Alhaji Usifu Immam of Tanokrom against him regarding an amount of GHc120,000.00 allegedly given to him. He responded to the notice and denied the allegation. Thereafter, Alhaji Usifu Immam wrote back, withdrawing the false allegation against him and apologized. The 1st defendant further testified that the Judicial Service referred the matter to the Regional Crime Office of the Ghana Police Service, Sekondi, for investigation. After the investigation, it was found that there was no iota of truth in the allegations. The 2nd defendant admitted recording the utterances of the 1st defendant at the meeting. However, he denied publishing any defamatory words against the plaintiff and playing the recording to any person, including those mentioned by the plaintiff. He testified that he was the senior security officer of the Judicial Service for the Western Region. Sometime in the latter part of 2018, he heard rumours going about the court’s premises alleging certain corrupt acts involving the 1st defendant, who was also a staff of the Judicial Service. As part of his core duties, he investigated the matter to gather evidence. He contacted the family from whom the 1st defendant allegedly collected money, who confirmed the story. They were upset and disappointed with the 1st defendant for defrauding them and solicited his assistance to get back their money. Consequently, the 1st defendant was invited and queried about the outcome of the matter. He was present at the meeting and recorded the proceedings. PW1, Newton Owusu Kwapong, testified that he was the Public Relations and Complaint Officer of the Judicial Service, Sekondi, Takoradi. According to him, on 18th September, 2018, he received a written petition (which he tendered as exhibit “C”) from the 2nd defendant, a security officer of the Judicial Service of Ghana, attached to the District Court, Market Circle, Takoradi and signed by one Alhaji Usifu Immam together with a pen drive containing an audio recording. He tendered the audio recording and its transcription as exhibits “P” and “Q”, respectively. A copy of the petition and an official cover letter were served on the 1st defendant for his comments. The official cover letter was admitted in evidence as exhibit “B”. The 1st defendant denied the allegation. During his investigations, he received a letter (exhibit “D1”) from the petitioner and his lawyer, Mr. Abakah requesting his offices to withdraw the petition. However, it was too late as he had forwarded his findings to the Head Office in Accra. In line with their procedures, he wrote to Justice Hannah Taylor for her comments (exhibit “F”), as her name was mentioned in the petition and in the audio recording, to which she replied (exhibit “G”). He also received a letter from the plaintiff (exhibit “H”) condemning in no certain terms the petition implicating him of giving a bribe to a judge to influence her judgment in favour of his clients. The Judicial Secretary also sent a written complaint (exhibit “K”) to the Regional Commander, Ghana Police Service, Sekondi, for the immediate arrest of the 1st defendant. He provided a statement to the police, which he tendered in evidence as exhibit “L”. The 2nd defendant has confirmed that he, the 1st defendant, and two others were at a meeting when the 1st defendant stated that the plaintiff had bribed Justice Taylor. Under cross-examination from counsel for the plaintiff, this is what transpired. Q: You were at a meeting with one Ahmed Aziangua, Mallam Yussif and the 1st defendant. A: Yes Q: The discussion at the meeting, you recorded it. A: Yes. Q: The transcript of that audio recording is what has been tendered by the plaintiff as exhibit “Q”. A: That is correct but I have an issue with it. The original drive which I gave to PW1, I think that it has been tampered with. So I cannot rely on this document. Q: What is in your original tape/recording which is not here. A: After the meeting, there was another meeting which I recorded. The 2nd meeting does not form part of the transcript. In essence, the 2nd defendant claims ownership of the audio recording of the meeting held between himself, the 1st defendant and others. He does not dispute exhibits “S” and "Q" tendered by the plaintiff and PW1, respectively, as the transcript of the recorded meeting except to add that there was another meeting held after this one which he recorded and which did not form part of the transcript. As to whether that is true or not is of no consequence as long as exhibits “S” and “Q” are the transcripts of the 1st meeting at which it is alleged that the 1st defendant uttered the words in question. Instructively, all the allegations made by the 2nd defendant against the 1st defendant that he uttered the words in question at a meeting were not challenged by the 1st defendant during cross-examination and must be considered an admission. It is trite that an unchallenged evidence or averment is deemed to be admitted. This submission is supported by the dictum in the case of Quaigraine vrs. Adams [1981] GLR 5, where his Lordships at the Court of Appeal held that: “Where a party makes an averment or a statement and his opponent fails to challenge that averment or cross-examine on that statement, he would be deemed to have sub-silentio admitted that fact”. Quite apart from this, the plaintiff’s case is further corroborated by the contents of exhibits “Q” and “S”. Both the plaintiff and PW1 identified Speaker No. 4 as the 1st defendant and Speaker No.1 as the 2nd defendant. The 2nd defendant did not challenge them on this fact. The plaintiff indicated under cross-examination that he could not be mistaken as to the voice of the 1st defendant on the audio recording. He explained that he had known the 1st defendant since he was stationed at the Agona Nkwanta District Court through to his transfer to the High Court, Sekondi. Indeed, the 1st defendant confirmed knowing the plaintiff from Agona Nkwanta through to the High Court, Sekondi. It is not in doubt that the plaintiff has interacted with the 1st defendant for that long and should be able to identify his voice if the need arises, as the Evidence Act envisages. Section 142 of the Evidence Act, supra, is to the effect that a person who is an expert on voice identification may state his opinion whether the voice is that of the alleged speaker for purposes of identifying a voice heard through a recording if the court is satisfied that he has at any time heard the voice in circumstances connecting with the alleged speaker. Other evidence on record linked the 1st defendant as the author of the statement. In exhibits “Q” and “S”, page 8, speaker 4 identified as the 1st defendant, stated thus: “You are just giving me a different thought, I swear by the Salah I perform, and my motor I ride, I am telling you what the woman told me that day”. Again speaker 1, the 2nd defendant, stated: “My brother, we are all in the Service but I have been in it for about 20 years, from Kumasi to Takoradi”. Speaker 4, the 1st defendant, replied “For me, it is 7 years”. Under cross- examination, the 1st defendant confirmed that he swore on the Koran and operated a motorbike. He further confirmed that he was a staff of the Judicial Service, having worked with it for 9 years. Thus, at the time of the meeting, he was in his seventh year of employment with the Service. Thus, speaker 4 could be no person other than the 1st defendant, a Moslem employee of the Judicial Service, who rode a bike. These pieces of evidence showed that the 1st defendant was at the meeting with the 2nd defendant, Alhaji Usiful and elders of the Apowa stool and uttered the words in question, which the 2nd defendant recorded. The 1st defendant’s defence was a complete denial of the allegation. He contended that he was not present at the meeting, and the police had exonerated him of all the charges. There is evidence on record that on 18th September, 2018, Alhaji Usifu Immam petitioned the Judicial Service regarding GHc120,000.00, which the 1st defendant had collected from him to bribe Justice Hannah Taylor and how the 1st defendant had failed to refund the money to him when he lost the case. The said petition was handed to PW1 by the 2nd defendant. The audio recording in question accompanied the petition. There is also evidence that Alhaji Yusifu Imam subsequently wrote to withdraw his complaint against the 1st defendant, which is evidenced by exhibit “D”. In exhibit “D”, Alhaji Imam explained that the allegation against the 1st defendant was untrue. That letter did not state that the 1st defendant did not utter the words, the subject matter of this suit. The police investigations centred on the allegation of bribery and corruption against him, not whether he had uttered certain statements perceived to be defamatory. Thus, his exoneration by the police did not mean that he did not make those statements of the plaintiff. The 1st defendant did not come across to me as a witness of truth. His only defence was a denial of the case. In cases where a simple answer in the affirmative would suffice, he would deny it as long as it had to do with the audio recording of what transpired at the meeting. One such example is: Q: You have had the benefit of the 2nd defendant’s statement of defence in this suit. A: Yes Q: You are also aware of 2nd defendant’s statement of defence and witness statement, he states he was present at the discussion. A: I don’t know. Q: I am putting it to you that the 2nd defendant, in his witness statement stated he was present at the discussion. A: I don’t know. However, in the 2nd defendant's witness statement, which the 1st defendant claims to have seen, the 2nd defendant clearly stated that he was at that meeting. As long as the question had to do with a meeting where certain utterances were made, the 1st defendant was sure to deny same or claim that he did not know. On the whole, I hold that it is more probable than not that it was the 1st defendant who uttered the statement concerning the plaintiff. For one, the 2nd defendant admits that he recorded what transpired at the meeting and was present when the 1st defendant uttered that statement. Again, the plaintiff and PW1, who have interacted with the 1st defendant prior to the incident, have recognized his voice in the audio recording as the speaker who uttered the statement. Also, certain utterances made by speaker 4, which is a description of the 1st defendant have been confirmed by the 1st defendant as true. Quite apart from proving that there was a statement made by the defendants which concerned him, the plaintiff must also prove that the statement was capable of a defamatory meaning in its natural and ordinary sense. The authors Winfield and Jolowicz on Torts (18th ed) at page 584, paras 12-15 have explained what “natural and ordinary meaning” of the words published is. In citing the case of Jones vrs. Skelton [1963] 1 WLR 1362 at 1370-1371, the authors stated that: “…the ordinary and natural meaning may…include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.” The natural and ordinary meaning of the words attributed to what the 1st defendant uttered is that the plaintiff bribed Justice Hannah Taylor with GHc300,000.00 which explains why she entered judgment for the plaintiffs (therein) against the defendants (therein). These words imputed to the plaintiff the commission of the offences of bribery and corruption punishable under our laws. This is what the ordinary and reasonable man would draw from these words in context. In their natural and primary meaning, the words were defamatory of the plaintiff, more so when the 1st defendant failed to prove that the words were true. The issue of publication is the next element which is very germane to the resolution of this dispute and which the plaintiff ought to prove. Libel and slander protect reputation. Therefore, unless the defamatory matter is published, a person's reputation suffers nothing. Lord Esher, in the case of Pullman vrs. Hill & Co. (1891) 1 QB 524,C. A. at page 527 defined publication as: “Making known the defamatory matter after it has been written to some person other than the person to whom it is written”. Therefore, there is no publication of a defamatory statement where that statement is communicated to the plaintiff himself. The law is that there is also no publication of a defamatory statement to a third person unless that third person would understand the defamatory meaning of the communication. Thus in the case of Sadgrove vrs. Hole (1901) 2 KB 1, it was held that a postcard defamatory of, but to persons unaware of the special facts not known to be referable to the plaintiff was not publication to post office staff through whose hands the postcard passed. This position of the law was enunciated in the case of Bonsu vrs. Forson [1964] GLR 45 at 48 where the Supreme Court held that: “There can be no publication unless the manner and circumstances in which the words were spoken (or written) are such as to convey the defamatory meaning to whom they are conveyed”. As we have seen so far, the defamatory matter was uttered by the 1st defendant at a meeting in the company of the 2nd defendant and two others. Thus, the 1st defendant is the original publisher of the slander to these persons. The 2nd defendant then recorded the utterances unto a pen drive and played it to some other persons. The plaintiff contends that the 2nd defendant played the audio recording to several persons, including Mr. Jonathan Kofi Asempah, some court staff, the Western Regional Union Chairman of JUSAG and the Complaints Units of the Judicial Service of Ghana. Thus, the 2nd defendant is a republisher of the defamatory material. Whether the 2nd defendant understood the statement of the 1st defendant to be defamatory of the plaintiff is not in issue. His conduct thereafter after hearing of this matter speaks volumes. At that time, he concluded that the plaintiff paid GHc300,000.00 to Justice Taylor, which accounts for why the plaintiffs (therein) won against the Apowa stool. He submitted the audio recording to several persons, including PW1, in protest against the conduct of the plaintiff and the judge. Thus, in respect of the 1st defendant, there is enough proof that he published the defamatory matter to third parties, including the 2nd defendant. There is also proof that the 2nd defendant played the recorded audio to several persons. He testified that he informed the local union chairman about his findings who advised that he submitted same to the Complaints Unit of the Judicial Service. The union chairman took him to the administrator, who in turn referred him to the Complaints Unit, where he handed over a copy of the recording to them for further investigations. A few days later, he met his lawyer in court, who informed him of a rumour he had heard about corruption involving some judicial staff. He told him he had gathered evidence which he had handed over to the authorities for further action. His lawyer informed him that he did not believe the story, so he would inform the plaintiff to follow up as the plaintiff was his junior in secondary school. Under cross-examination, PW1 indicated that when the recording was handed to him by the 2nd defendant, he went to his immediate boss, the then Supervising High Court judge, Justice Bright Mensah, and they played it. According to PW1, he forwarded the petition and the pen drive containing the defamatory matter to the head office. He also gave a copy to the administrator and Justice Taylor, whose name had cropped up as having received the bribe from the plaintiff. Thus, per the evidence led, the matters complained of were republished by the 2nd defendant to other persons on several occasions. First to PW1, who also played it to Justice Bright Mensah, his immediate boss, and gave a copy of the drive to the head office and Justice Hannah Taylor. He also played it to Mr. Faidoo, who is his lawyer. The plaintiff also claims that the 2nd defendant played the audio recording to Mr. Asempa and Mr. Ackaah Gyasi. The 2nd defendant has denied this fact. The fact that PW1 forwarded the petition to the head office, necessitating a complaint being made to the police against the 1st defendant, shows the seriousness with which these persons who listened to the recording attached to the matter and how they viewed the conduct of the plaintiff who had bribed the judge. PW2, Victor Owusu, testified that the plaintiff was his former senior at Tackie Otoo & Co Takoradi before he set up his own office. According to him, the plaintiff was the lead lawyer in the case titled Abusuapanin Robert Cudjoe & Others vrs Nana Amua Gyebu XV, which was determined at the High Court 2, Sekondi presided over by Her Ladyship Mrs. Hannah Taylor. On 31st July, 2018, when judgment was given on the case, the plaintiff had travelled out of the country. After the delivery of the judgement, there was news circulating the court and amongst lawyers that the plaintiffs in the case, through the plaintiff herein, had bribed the presiding judge, which explained why his clients won the case and that there was an audio to prove it. The witness further testified that around the same time, he went to the Circuit Court and met Mr. F. F. Faidoo. Mr. F. F. Faidoo told him about the audio recording, the content therein, and the fact that the content implicated the plaintiff as having bribed Her Ladyship Mrs. Hannah Taylor to ensure that his clients won the case. Mr. Wilberforce was around then, and what Mr. Faidoo had told him turned into a conversation between the three of them. Upon his return from court, he informed their clerk, Mr. John Toe, about what Mr. Faidoo had told him, and he also told him that Mr. Faidoo had told him the same thing that morning. In his opinion, the allegations against the plaintiff were so embarrassing and packaged in such a way that he, like many others, believed them to be credible. The 2nd defendant testified of playing the audio recording to Mr. Faidoo. Mr. Faidoo confirmed through his cross-examination of this witness that he had published the defamatory material to PW2 and Mr. Wilberforce. Of importance here is the fact that PW2 himself believed the allegations being made against the plaintiff were true because of the way the story had been packaged to him. It is quite clear that both Mr. Faidoo and PW2 considered the material defamatory of the plaintiff. I am quite satisfied that the 1st defendant being the originator of the defamatory material published same to the 2nd defendant and two others. The 2nd defendant recorded the defamatory matter and subsequently republished the matter to several persons, including PW1 and Mr. Faidoo. Indirectly, the 1st defendant is also responsible for the republication of the defamatory material to PW1, PW2, Mr. Wiberforce, Mr. Faidoo and others. The defendants have pleaded the defence of qualified privilege. Counsel for the 1st defendant has contended that even if the statement were defamatory of the plaintiff, it was communicated to a person who had a duty to investigate the allegation. In his statement of defence, the 2nd defendant pleaded that “as a citizen and not a spectator, it is his constitutional, legal, civil and moral duty to expose all forms of corrupt activities within the society”. On certain occasions, a man is protected in stating what he believes to be the truth about another; so long as he makes the statement honestly and without any direct or improper motive. It may be unfortunate that a person against whom a charge that is not true is made should have no redress, but it would be contrary to public policy and the general interest of business and society that a person should be hampered in the discharge of his duty or the exercise of his rights by constant fear of actions for slander. See the case of Dunnet vrs. Nelson (1926) S. C. 164. By definition, an occasion is privileged where the person who makes or publishes the matter complained of has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. See the case of Adam vrs. Ward [1917] A. C. 309 at 334. Therefore reciprocity is an essential element in the defence of qualified privilege. It was, however explained in the case of Phelps vrs. Kemaley (1949) 168, L. T. 18 by Lord Goddard C. J. that reciprocity does not mean that both parties must have a duty or both must have an interest, for one may have no interest and the other a duty as exemplified in the common case of a servant’s character. It is sufficient that by the moral standard of right conduct prevalent in the community, the defendant was under an obligation to say what he said. It is not enough that the defendant or the maker of the defamatory statement believed himself to be under such an obligation. It is for the court to decide whether or not the facts, as proved showed such a duty or an obligation existed. In Watt vrs. Longsdon (1950) 1 K. B. 130, Greer L. J. said the test is: “Would the great mass of right-minded men in the position of the defendant have considered it their duty under the circumstances to make the communication? Occasions set down as occasions of qualified privilege include inquiries, reports and references made with regard to commercial credit of a person with whom a trader proposes to transact business, reports of judicial proceedings, statements made of meetings of public bodies, communications between solicitor and client and statements made in self-vindication. See the cases of London Association for protection of Trade vrs. Greenlands, Ltd. [1916] 2 A. C. 15, H. L. and Searles vrs. Scarlett [1892] 2 Q. B. 56, C. A. As has already been stated, the 1st defendant is the originator of the defamatory communication to the 2nd defendant and three others and, therefore, liable for its republication. As stated by Gatley on Libel and Slander (6th ed.), para 274 at pages 135-136 “Although the original publisher of a libel or slander may be prima facie liable for its republication, he will nevertheless have a good answer if he can prove that the words are true or that the occasion on which he published them was privileged. But if the occasion on which he published the words was not privileged, he cannot escape liability by showing that the occasion on which the words were republished was privileged”. The 1st defendant claims that he communicated the defamatory statement to persons who had a duty to investigate the allegations. He did not specify who those persons were. However, the evidence on record is that he communicated the defamatory matter to the 2nd defendant and others, and it is presumed that he was referring to the 2nd defendant. The 2nd defendant testified that he was the senior security officer of the Judicial Service for the Western Region. His work schedule included protecting lives and exposing all forms of corruption. The plaintiff disputed this fact and contended that the 2nd defendant was a mere watchman of the Service. Under cross-examination, the 2nd defendant admitted that he was a watchman of the Judicial Service. The 1st defendant did not tell us the nature of the 2nd defendant’s duty to investigate. Investigation of corrupt activities are carried out by the Ghana Police Service and other specialized agencies established by the State. I fail to appreciate how a watchman, whose primary duty is to protect lives and property, also has the duty to investigate corrupt activities. The 1st defendant could have vindicated his claim with the letter of appointment of the 2nd defendant showing that he had such a duty to investigate. In the absence of this, it cannot be said that he communicated the defamatory matter to one who had a duty to investigate the allegation. Where the defence of qualified privilege is relied upon by a defendant, it is his duty to prove the facts and circumstances which show that the occasion was privileged. If he does so, then the burden of showing actual or express malice rests upon the plaintiff, and if the latter is shown, then communications made even on privileged occasions cease to be considered as such. It is the duty of a judge to determine whether the occasion was privileged or not. If he holds that the occasion was not privileged, then the plaintiff is not called upon to prove malice. In such a case, the law implies malice from the falsity of the statement. See Longdon-Griffiths vrs. Smith [1951] 1 K. B. 295. The 1st defendant did not lead any evidence as to what interest or duty, be it legal, social or moral, he had to communicate the defamatory statement to the 2nd defendant. Looking at the circumstances of the case, he had no interest or duty to communicate the defamatory matter to the 2nd defendant, who equally did not have a corresponding duty or interest to receive the communication. I am even surprised that counsel for the 1st defendant raised this defence on behalf of his client. Implicit in the defence of qualified privilege is the admission by the defendant of publishing a defamatory statement. This defence contrasts sharply with his evidence on oath that he did not utter any defamatory statement. The 1st defendant should not be permitted to approbate and reprobate. He cannot eat his cake and have it at the same time. His defence of qualified privilege fails. On the part of the 2nd defendant, the defamatory matter was communicated to PW1, the administrator of the Judicial Service, Western Region, head office of Judicial Service and his lawyer, Mr. Faidoo. PW1 received the defamatory matter from the 2nd defendant in his capacity as the Public Relations and Complaint Officer of the Judicial Service, Western Region. As such, he had an official interest in the matter since the defamatory matter concerned persons who were employees of the Judicial Service. It was his duty to receive the complaint and take appropriate action. Even though the 2nd defendant had no duty to investigate, I believe that as a citizen of Ghana and an employee of the Judicial Service, he had a moral duty to report all forms of impropriety to the Service for appropriate actions to be taken. The Service depended on such complaints from the public to weed out the nuts and streamline its operations. The occasion was privileged because the audio recording was published to PW1 and the head office, who had an official interest in the subject matter. The burden now shifts to the plaintiff to show actual or express malice on the 2nd defendant’s part to publish the material to them. The plaintiff failed to lead any evidence of the sort. Thus, the 2nd defendant’s defence of privileged communication to PW1 holds. The case of the communication to his lawyer, Mr. Faidoo, presents a different scenario. Ordinarily, communication between lawyers and clients is covered by this privilege. The question is whether, at the time the communication was made to Mr. Faidoo, he was acting as counsel for the 2nd defendant. The 2nd defendant led no evidence in this regard. Even though there is evidence on record to show that on 24th September, 2018, Mr. Faidoo wrote to the Complaints Unit as counsel for the 2nd defendant requesting for security protection for the 2nd defendant as the 1st defendant was threatening him, there is no proof that the defamatory statement was communicated to Mr. Faidoo at a time when he was counsel for the 2nd defendant. In his testimony, the 2nd defendant stated that a few days after submitting the petition, he saw Mr. Faidoo in court, who told him about the rumours making the rounds regarding corruption by the staff. He, in turn told him about the recording he had made. The 2nd defendant was stationed at the District Court as a watchman. Naturally, he would be friends with some of the lawyers and staff there. Thus, the fact that he told Mr. Faidoo, who happens to be his lawyer now, about the recording does not mean that he was his lawyer at the time of the communication. The strong possibility remains that he procured Mr. Faidoo's services when things got out of hand. Mr. Faidoo had no qualms about discussing the contents of the recording to third parties, including PW2, who was in the company of Mr. Wilberforce at the Circuit Court. If the communication had been made to Mr. Faidoo as his lawyer, he would not have been in a position to share the facts with PW2 since it would have been privileged communication. The fact that Mr. Faidoo could freely discuss the contents of the audio with third parties indicates that he did not receive the communication from the 1st defendant in his capacity as his counsel. In the absence of any proof that Mr. Faidoo was his lawyer at the time of the communication, Mr. Faidoo would have had no interest in receiving the communication. As a matter of fact, the 2nd defendant had no moral or legal duty to communicate the defamatory matter to Mr. Faidoo, who had no interest in receiving it. The defence of qualified privilege fails in this instance. As a tort, slander requires proof of special damage. In other words, the plaintiff cannot succeed in an action in slander unless he can show that he suffered damage due to the slander. However, there are some exceptions to this rule. Words imputing the commission of a crime, loathsome disease, unchastity and slander in respect of an office, profession, trade or business are actionable per se without the need to prove damage. Here, damage to the plaintiff’s reputation is presumed. The words uttered by the 1st defendant attributed to the plaintiff the commission of a crime. His allegation bordered on bribery and corruption, which are second- degree felonies under the Criminal Offences Act, 1960, Act 29, for which he could be punished corporally. The words uttered disparaged the plaintiff in his profession as a lawyer, as his conduct was in breach of the ethics of his profession. The conduct, if true, could lead to severe sanctions imposed by the Disciplinary Committee of the General Legal Council. As the slander is actionable per se, the law presumes that some damage will flow from the defendants’ slanderous words. Thus, the plaintiff is not required to prove his reputation or that he has suffered any actual loss or damage. As was stated in the case of Odifie vrs. Panin and Others [1964] GLR 317: “Damages in defamation are not only to compensate for injured feelings but also to vindicate the reputation of the person defamed. I consider the quantum of damages should have some relation to the seriousness or otherwise of the injury and to the extent of damage done. In my view there is no difference in principle between damages which should be awarded when an action for slander in customary law succeeds and damages for common law slander”. Judging from his testimony, the plaintiff is a senior member of the Ghana Bar Association and a deeply religious person serving in various capacities in the church. He testified that he worshipped at the Martyrs of Uganda Catholic Church Beach Road, Takoradi, and was the secretary of the parish pastoral Council. He was also the lawyer for the Catholic Arch Diocese of Cape Coast, which oversaw the Diocese of Sekondi – Takoradi and Sefwi Wiaso. He also belonged to the Full Gospel Businessmen Fellowship International, a worldwide non-denominational Christian evangelistic organization, and the president of the Metro Chapter of the fellowship in Takoradi. He also represented several prominent clients in and outside the country. According to him, the publications by the defendants had impugned his hard-won reputation and subjected him to public ridicule and contempt. In particular, he had been ridiculed by judges, lawyers and those who worked in the courts. He had suffered immense psychological and emotional distress and sleepless nights. He also lost two prospective clients who would have paid him about GHc50,000.00. It is plain from the evidence adduced that the plaintiff has suffered injury to his reputation and calling. The extent of the publication was far-reaching. According to PW2, the news making the rounds in the courts and amongst lawyers was that the plaintiff had bribed the presiding judge, which statement was false. These defendants should have known better. Prior to the incident, the 1st defendant, the originator of the statement, knew the plaintiff and considered him a nobleman who could not have done the act attributed to him. As a matter of fact, the defendants acknowledged that the plaintiff had a solid reputation and could not have committed the act attributed to him. The 1st defendant under cross– examination stated thus, “I know the personality of the plaintiff. He is a noble man”. The 2nd defendant also said that “And per the investigation I did, I did not find proof that the plaintiff had given money to Justice Mrs. Taylor. I have all the recordings to these issues”. Indeed, the nature of the words uttered, which turned out to be false, sullied the plaintiff’s reputation as a criminal. The essence of an action in slander is not to make money but to clear one good’s name. The real damage cannot be ascertained and established. It is impossible to track the scandal to know the extent of its reach hence the damages being described as large. However, having taken into consideration the extent of the publication, the status of the plaintiff, the effect of the publication, the occasion of the publication and the status of the defendants, I believe that general damages of GHc300,000.00 would be adequate compensation for the defamatory words published by the defendants. The plaintiff is entitled to that amount. The defendants are perpetually restrained from further publishing the defamatory statement. (SGD.) H/L AFIA N. ADU-AMANKWA (MRS.) JUSTICE OF THE HIGH COURT. COUNSELS John Mercer (with Deborah E. Essien) appears for the Plaintiff. J. E. K. Abekah appears for the 1st Defendant. F. F. Faidoo appears for the 2nd Defendant. 25