AGRICULTURE DEV. BANK VRS ALI (H1/34/2020) [2022] GHACA 108 (7 July 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - SENYO DZAMEFE, J. A, (PRESIDING) P. BRIGHT MENSAH, J. A GEORGE KINGSLEY KOOMSON, J. A Civil Appeal Suit No: H1/34/20 7th July, 2022 AGRICULTURE DEV. BANK - DEFENDANT/APPELLANT VRS. OSUMANU ALI PLAINTIFF/RESPONDENT ======================================================= JUDGMENT ======================================================= - DZAMEFE, JA This is an appeal against the decision of the High Court Accra dated 20th October 2017 in favour of the plaintiff/respondent hereinafter referred to as the plaintiff. The defendant/appellant also referred to as the defendant, dissatisfied with the judgment launched this appeal. The plaintiff a former staff of the defendant bank, on 10th October 2014 issued this writ of summons against the defendant for the following reliefs;- a. General damages against the defendant for breach of contract and/or deceit from 1st March, 2010 to 31st August 2012; b. Special damages of the sum of Gh¢200,885.10 against the defendant being amount lost as result of the breach of contract from the period of 1st March 2010 to 31st August 2012 using Cal’s monthly income of February 2010 figure; c. Interest on the sum of Gh¢200,885.10 from 1st September, 2012 to date of final payment; d. General damages against the defendant for malicious publications thereby denying the plaintiff the opportunity and/or right to seek employment to practice his trade; e. Special damages for the lost opportunity to be employed for at least 20 years using the monthly income of the plaintiff at Cal using the February 2010 figures which works out to be Gh¢2,612,025.60; f. A further special damages of Gh¢165,000.00 being cost of the trucks invested by the plaintiff as a result of the breach of contract and/or lost opportunity to work; g. Interest on the amount of Gh¢165,000.00 from the 1st December, 2013 to date of final payment; h. Damages for libel; i. An exemplary damages for libel for the sum of Gh¢2,000,000.00; j. Perpetual injunction to restrain the defendant, its agents, servants, or otherwise from further publishing or causing to be published the said publication or similar words defamatory of the plaintiff; k. Cost l. Any other reliefs the honourable court may deem fit. The plaintiff in his statement of claim averred that he is a graduate from the Kwame Nkrumah University of Science and Technology (KNUST) and graduated in Mathematics with Economics in the year 2004. He did his National Service at the Stanbic Bank Ghana Limited from September 2004 to August 2005, and was fully employed by the bank on the 1st November 2005 as a “Dealer Forex” on the grade of an Assistant Officer Grade 5. His consolidated monthly salary was ¢5,096.000 (old cedis). Plaintiff averred he was trained and coached by expert Treasury managers in the Stanbic Bank and in Standard Bank of South Africa and had the best of training in Treasury Management (Currency dealings). In March 2006 he resigned from the Stanbic bank and joined another Commercial Bank, Cal Merchant Bank Ltd (now Cal Bank). He said he resigned from Stanbic to Cal Bank because he was offered better Conditions of Service. The plaintiff averred further that his starting salary and other allowances at Cal bank was about ¢9,820.00 (old cedis) as a grade six (6) officer which was one step above Stanbic and Cal’s entry level of grade 5. According to him, by dint of results oriented hard work, he was promoted to Head of Trading Department (Grade 10) effective 4th May 2009 with monthly salary and allowances of Gh¢10,883.44. This he enjoyed till he left the Cal Bank at the end of February, 2010. The plaintiff stated that in addition to his normal remuneration he also earned a yearly bonus paid to all staff as percentage of their salary. It is the plaintiff’s case that while at Cal Bank, one Mr. George Baah Danquah, who used to be his superior officer at the Stanbic Bank but had moved to join the defendant bank, around January 2010, then as the Head of Treasury of the Bank, approached him to persuade him to join the defendant’s employment. Plaintiff averred “after several lunch meetings with Mr. Baah Danquah to discuss his proposal, he (Baah) scheduled a meeting to meet his boss, the Managing Director (MD) of the defendant. This first meeting was the beginning of three separate meetings with the Managing Director. All the meetings took place in the Managing Director’s office”. It is his case that Baah introduced him to the Defendant’s Managing Director, extolled his achievement at Cal bank like transforming Cal treasury since joining them and others. The other meetings, he averred, the three of them discussed his remuneration. Plaintiff said this was necessary because his monthly benefit including a weekly incentive of Gh¢1,350.94 could not fit into the defendants’ pay structure. For this the MD promised to work out a package for him after discussions with Mr. Baah Danquah. Plaintiff said he finally agreed with the MD to join the defendant bank and an interview was arraigned. At the interview the plaintiff’s salary was not discussed, but left out. The plaintiff averred that when the appointment letter was brought to him by Mr. Baah Danquah he was not impressed at all with the offer and so Mr. Baah arranged another meeting with the Managing Director, who asked him to take the offer explaining that the challenge he had was with the defendant’s salary structure and that within six (6) months he would put him on a befitting package. As agreed the plaintiff resigned from Cal by the end of February 2010 and joined the defendant bank by a letter dated 1st March 2010 with gross salary of GH¢4,673.73 with a cumulative monthly benefit of GH¢4,259.85. The plaintiff said he accepted the offer upon the explanation and promise by the Managing Director and started work with the defendant on 3rd March 2010 as Senior Currency Trader (grade B10 within the defendants’ grading levels) and Head of Forex Desk. Six months down the line, plaintiff told Mr. Baah to remind the Managing Director, who asked plaintiff to give him up to the end of 2010. Plaintiff did but at the end of 2010, the Managing Director failed to redeem his pledge. In April 2011 the Managing Director agreed with Mr. Baah to introduce performance based motivation which will capture all the benefit short falls the plaintiff lost by joining the defendant, yet he failed to implement the findings made by Mr. Baah as to what other banks do. The Managing Director then promised to address the benefit short fall by imbedding them in the annual bonuses. When 2011 bonuses were paid in April 2012, the defendant failed to address the short fall as promised by the Managing Director. The plaintiff was merely paid the normal bonus. The plaintiff averred he informed Mr. Baah Danquah, the Treasurer that he was resigning from the defendant’s employment. Mr. Baah asked the plaintiff to give him 3 months to convince the Managing Director on the back of the strong results and also to convince him of the impact the plaintiffs departure could have on the overall performance of treasury department. By the end of July 2012 nothing had been done about the plaintiff’s grievance as such he tendered his resignation by giving them one months’ notice effective end of August 2012. The defendant wrote back of the plaintiff accepting his resignation after a meeting with the Head of Human resources to impress upon the plaintiff to change his decision failed. He was then 31 years old. The plaintiff says that he joined the defendant in March 2010 and the previous year 2009 income from the treasury was Gh¢6.5m and by the end of year 2010 after spending close to 3 months in setting up the treasury trading systems the income rose to about Gh¢12.544 million. By the end of year 2011 the treasury income was Gh¢27.996 million which was the highest in the history of the defendant as at that date. The plaintiff says that by the end of August 2012 the treasury income of the defendant was Gh¢29,354,628.98. The rest of the year of 2012 the additional treasury income without the plaintiff’s involvement was Gh¢5.0 million to bring the total treasury income to about Gh¢34,354,628.98. The plaintiff says that the first quarter of 2012 the treasury income of the defendant was slightly over GH¢12,000,000.00 and also the treasury income of the first quarter of 2013 was about Gh¢2,700,000.00. The plaintiff says that the impact of his leaving the defendant’s employment on the treasury income which is seen daily was so obvious especially towards the end of March, 2013. Plaintiff states that after resigning from the defendant in August 2012, the latter on 25th March 2013 and 3rd April 2013 wrote and published or caused to be written and published in the Ghanaian Times and Daily Graphic respectively publications in those national newspapers it labelled as disclaimers defamatory of the plaintiff as follows;- “The Agricultural Development Bank wishes to advise the public that Mr. Osuman Ali, as photographed above, is no longer in the employ of the Bank. He is no longer authorized to transact business on behalf of the Bank. ISSUED BY MANANGMENT OF AGRICULTURAL DEV. BANK”. These publications in both dailies had the photograph of the plaintiff and referred to the plaintiff. It is the plaintiff’s contention that the publications were maliciously published by the defendant. He said the objective of the two publications was to destroy his career as to make him not available to any competitor of the defendant and the publication has destroyed his opportunity to be employable in that niche market of Treasury Management (Currency trading). The plaintiff alleged that the defendant has no history of publishing a disclaimer of persons it has dismissed and/or who have resigned from their employment in the treasury department. The plaintiff says that the currency dealers in Ghana is a niche market where the dealers know themselves and the Bank of Ghana has helped create a club known as “Dealers Club of Ghana” for a number of reasons including to regularly share ideas on best practices and offer opinion on Bank of Ghana polices on foreign exchange and related polices. He said because of the closed nature of the dealers group employment is mainly based on recommendation by another dealer. The plaintiff says that when he joined Cal from Stanbic it was based on a recommendation from a treasurer and also when the plaintiff joined the defendant from Cal it was based on a recommendation by the treasurer of the defendant. He averred that some of the Club members called him to ask what happened as the publications were unusual industry practice. That inspite of his pedigree in the market no treasury has sought for his services as was the case before those publications. The plaintiff says that after his resignation and before those publications he was being sought for but he took the decision to wait until the 1st quarter of the following year of his resignation. The plaintiffs says that in consequence of the publications the plaintiff’s reputation, both personal and his profession as a Treasury Manager/currency dealer, has been seriously injured and he has suffered considerable distress, embarrassment and loss of self- confidence. Further he remains unemployed to date as he does not have the confidence to apply for treasury work or any work at all and no treasury has sought to employ him as a result he has suffered damages. Wherefore the plaintiff claim as per the endorsement on the writ of summons. DEFENCE The defendants in their defence averred the plaintiff applied for, was interviewed and offered employment with the defendant. That the terms and conditions of the offer made to the plaintiff was expressly stated in the letter dated 19th February, 2010 which offered the plaintiff an appointment with the defendant as a Senior Currency Dealer. The defendants aver further that the plaintiff accepted the offer, took up the appointment and after the probation period his appointment was confirmed effective 1st November, 2010. It is the case of the defendant that the plaintiff tendered in his resignation on his own without any pressure whatsoever from the defendant and on 23rd July 2013 same was accepted by the defendant. The defendant avers further that the increase in its treasury income was as a result of its policies and the collective effort of its staff and not from the individual magic of the plaintiff. It is the defendant’s contention that the publication complained off of by the plaintiff was only an information to the public of the true state of affairs. That the decision to publish a disclaimer was taken by the management based on the defendants policies. The plaintiff is not entitled to his claim and or at all. REPLY The plaintiff in his reply to the defence filed said during his interview the managing director of the defendant entered the room and told the panel the plaintiff was the person for the job and that the plaintiff had been head hunted by the defendant. There was no other candidate apart from him for that position. That the position the plaintiff was being sought for was not advertised either internally or externally and persons already performing that function for the defendant were removed to make way for the plaintiff. The plaintiff averred further in his reply that his offer dated 19th February 2010 and the employment was effective 1st March 2010, but he refused to sign the acceptance portion of the offer letter when it was hand delivered to him by the head of treasury on the 19th of February 2010 because he sought clarification about the remuneration quoted in the offer letter which was way below his monthly remuneration at the Cal bank. He said before the 3rd of March 2010 when he signed the offer he was persuaded to sign on the back of the promise made to him by the defendants Managing Director that come six months he plaintiff will be put on remuneration better than that of Cal bank – [page 32 ROA]. Plaintiff stated that before his recruitment, the defendant was not making the levels of income from the treasury that the defendant made after his recruitment and since his departure inspite of the policies and staff the levels have dropped. ISSUES FOR TRIAL i. Whether or not the plaintiff was headhunted for the position the plaintiff was employed into by the defendant; ii. Whether or not the defendant had agreed to pay the plaintiff remuneration higher than the plaintiff’s immediate remuneration before he joined the defendants employment; iii. Whether or not the plaintiff and the defendant negotiated any remuneration at the interview of the plaintiff; iv. Whether or not the plaintiff is bound by the terms of the contract as embodied in the letter of appointment of the plaintiff; v. Whether or not the defendant made a promise to enhance the remuneration to an agreed lever retrospectively after the work of a consultant engaged by the defendant; vi. Whether or not the plaintiff in resigning from the employment of the defendant can be said to have been constructively dismissed; vii. Whether or not the defendant breached the contract of employment; viii. Whether or not the defendant has a policy of publishing the resignations of their employees and/or has actually been publishing the disengagement of its employees; ix. Whether or not the plaintiff was defamed by the publications the defendant caused to be published in the national dailies; x. Whether or not the publications were malicious; xi. Whether or not the publications harmed the plaintiff employment prospects into like positions he was employed; xii. Whether or not the plaintiff is entitled to the reliefs endorsed on the writ of summons; and xiii. Any other issue arising out of the pleadings. JUDGMENT As to whether the plaintiff was headhunted for the position and whether or not the defendant had agreed to pay the plaintiff’s remuneration higher than his immediate remuneration before joining the defendant bank, the trial High Court held that the parties therein formally recorded the whole of their agreement in writing; the terms were embodied in and limited to the appointment letter. As a general rule where the agreement is reduced into writing, extrinsic evidence will not be admitted to vary or contradict the terms of the written document. The trial court was of the view that from the evidence it was clear the parties did not reach any agreement on the terms of engagement outside those stated in the appointment letter. That the plaintiff therefore signed his acceptance letter, accepted the appointment and commenced working under the terms of the exhibit “HI”. The court also held the plaintiff was not headhunted by the defendant bank. That the plaintiff could have been headhunted by the head of department, Mr. Baah-Danquah but not by the defendant bank – [page 121 ROA]. In summary the trial court held that the plaintiff was not headhunted by the defendant bank and no written agreement (contrary to the agreed contract of employment) was concluded to pay the plaintiff a higher remuneration than the one he enjoyed before he joined the defendants bank- [page 122 ROA] Whether or not the plaintiff and the defendant bank negotiated any remuneration at the interview of the plaintiff, the court held that no negotiation was seriously concluded with respect to the increment of the plaintiff’s remuneration at the interview leading to his appointment – [page 124 ROA] As to whether or not the plaintiff in resigning from the employment of the defendant could have been said to have been constructively dismissed and whether or not the defendant breached the contract of employment, the court held no breach occurred. The court reasoned that a breach of contract occurs when a party fails to perform an obligation that resulted from a valid offer and acceptance. The oral contract is promissory in nature and its intention was to induce but it did not pass the parole evidence rule and so there could therefore not have been a valid contract and subsequently no breach occurred – [page 125 ROA] Whether or not the defendant has a policy of publishing the resignation of their employees and has been actually publishing the resignation of their employees, the court found that the defendant bank has generally no policy on publication of employees who leave the employment of the bank – [page 125 ROA]. That publication of such a disclaimers are at the discretion of management. Management decides when to publish a disclaimer on an employee who resigns from the defendant bank. That the bank may therefore publish a disclaimer or an employee as and when it pleases it, regardless of the effect of such disclaimer on those respective employees – [page 131 ROA] The court went on further to hold that the publication of a disclaimer on the plaintiff but not on PW1, Mr. Baah-Danquah (who has been a subject of an inquiry and subsequently dismissed, in the instant case is wrong and unlawful (Emphasis mine) - [page 131 ROA] Whether or not plaintiff was defamed by the publication the defendant caused to be published in the national dailies and whether or not the publications were malicious, the trial court held that there is proof that the publication on the plaintiff was on the preponderance of probabilities, not the usual way of dealing with the employees who resigned from the bank and could therefore be malicious – [page 135 ROA] The court held further that the arguments advanced by the plaintiff and the total evidence adduced support the issue of defamation but not the issue of breach of promise – [page 135 ROA] The trial court at the end of the trial granted plaintiff’s reliefs 4, 8, 9 and 10 and dismissed all other reliefs. The court in respect of relief 9, granted an award of Gh¢500,000 to the plaintiff for exemplary damages for libel – [page 137 ROA] The defendant was to publish a retraction and apology in those same newspapers just as the disclaimer within 14 days. The defendants, its agents, servants or otherwise were perpetually restrained from further publishing or causing to be published the said publication or similar words defamatory of the plaintiff. Costs of Gh¢10,000 was awarded the plaintiff against the defendant. NOTICE OF APPEAL The defendant dissatisfied with this judgment launched this appeal on the following grounds;- 1. The learned trial judge erred in law in awarding Gh¢100,000.00 general damages against the defendant for defamation. 2. The learned judge erred in law in awarding exemplary damages for libel in the sum of Gh¢500,000.00 in favour of the plaintiff against the defendant. 3. That the general damages of Gh¢100,000 and exemplary damages of Gh¢500,000 awarded the plaintiff against the defendant are excessive and unreasonable. 4. The learned trial judge erred when she ordered the defendant to publish a retraction and apology. 5. The judgment of the court that the plaintiff was defamed by the defendant is against the weight of the evidence before the court 6. Additional grounds to be filled upon receipt of the record of appeal. The relief sought from the court of appeal is for the judgment granting reliefs 4, 8, 9 and 10 to plaintiff/respondent against the defendant/appellant be set aside and judgment entered for the defendant/appellant herein. The plaintiff/respondent also dissatisfied with the judgment also filed a notice of intention to contend that the decision of the court be varied (Rule 15 of C. I.19). The respondent contend that the decision of the trial court be varied as follows; a. Reversing part of the judgment that refused to grant the following reliefs of the plaintiff/respondent; reliefs i, ii, iii, v, vi and vii and granting those reliefs to the plaintiff/respondent. b. Further or in the alternative an order awarding general damages for the plaintiff/respondent against the defendant/appellant for malicious publication. c. Further or in the alternative an order increasing the levels of the awards made against the defendant/appellant by the learned trial justice. d. Any other order the court may deem fit to make – [page 217 ROA] SUBMISSIONS BY THE APPELLANT Grounds 5 & 6 These are the numbers counsel listed but from the grounds of appeal, it is ground 4 and 5 not 5 and 6. Counsel for the defendant/appellant submits that the trial judge failed to give any comprehensive consideration and examination to the defendant’s case and evidence and thus came to its decision against the weight of the evidence adduced at the trial. Counsel submits that the words in exhibit “Y” and “YI”, being the publications complained about by the plaintiff are not defamatory even by the definitions of defamation relied on by the trial court itself; and the said words are not “untrue” contrary to the trial courts holding. It is the appellant’s case that the ordinary meaning of the words used in exhibit Y and YI which has been held to be defamatory by the trial court, when read as a whole, cannot be defamatory of the plaintiff. It is their contention that the only inference that could be drawn from the publications in the two exhibits is that the plaintiff was no longer an employee of the defendant and was no longer authorized to transact business on behalf of the defendant and no more. It is also their submission that the trial courts’ holding that the publication in the exhibits injured the plaintiffs reputation and caused his failure to complete his EMBA programme, is not supported by the evidence on record. Counsel submits further that the plaintiffs ID card from the University of Ghana was valid from 2010-2012, the period for his EMBA course. The publications in exhibit “Y” and “YI” were in 2013 and therefore could not have affected the plaintiff’s course in anyway. The publication therefore could not have been the cause of his failure to complete the course as he alleged. Counsel submits further that the plaintiff created the impression that the nature of his job with the defendant was such that he has no dealings with the public therefore the publication of the defendant was needless and could only be actuated by malice as he was no longer in the employment of the defendant. Counsel said this is not true and that the fact still remains that, some staff including the plaintiff dealt with the public when they should not have. He opined that the bank was thus justified in notifying the public of the termination of the plaintiff’s employment with the defendant. To counsel it was indeed a matter of prudence. It is the appellant’s contention that the holding of the trial court that the publication caused to be made by the defendant was made in error because the plaintiff had no dealing with the public can therefore not be correct and same ought to be set aside. Counsel submits also that the trial court holding that the plaintiff is unable to practice his trade as a result the publication was made in error as the plaintiff led no evidence to substantiate the said allegation. That there is no evidence that the plaintiff either lost a job or had an application for a job declined because of the publication. Counsel said the plaintiff as at 7th February 2013, informed the defendant he was unemployed and so needed time to refund his car loan to the defendant. Counsel submits that was before the publication and therefore that could not have been the cause of his unemployment. Counsel also submit that the plaintiff and his witnesses on key issues were so wrought with many inconsistencies and inaccuracies and this should go to discredit the evidence led by the plaintiff and his witnesses in the matter. These inconsistencies and inaccuracies counsel said cannot be ignored by the trial court. Counsel prayed this court to reverse the order by the trial court for a retraction and apology since it was made in error. That the publications were malicious and injured the plaintiff’s reputation were unfounded. Counsel for the respondent in his answer to the submission of the appellant said contrary to the appellants submission, nowhere in the judgment did the trial court hold that the ordinary meaning of exhibit “Y” and “YI” are defamatory. Counsel submits that the plaintiff pleaded innuendo (para 45 of statement of claim) and from the judgment the trial judge’s decision that the plaintiff had been defamed by exhibits Y and YI was based on innuendo. Counsel said the last line of the publication stated that the plaintiff is no longer authorized to transact business on behalf of the bank and this information though a fact, sends other conotations. Counsel contends that the publication created the impression as if the plaintiff was dismissed for a wrong by way of innuendo. Counsel referred this court to the case of Anthony vrs University of Cape Coast [1973] l GLR 299 where the High Court per Wiredu J (as he then was) held that a plaintiff was entitled to succeed in an action for libel based on an innuendo if he could satisfy the jury that the publication had defamatory meaning ascribed it in the innuendo whether or not it was also defamatory in the natural and ordinary meaning. In such a case it was for the trial judge in the first place to determine upon the evidence adduced whether the publication was reasonably capable of being understood in the meaning ascribed to it in the innuendo. Counsel submits that the defendant created this innuendo deliberately. Nothing stopped the defendant from accurately publishing that the plaintiff had “resigned” from the defendant employment. But to harm the plaintiff, the defendant chose words that would leave readers to speculate how he exited. Those speculations, as found by the trial judge would be adverse to the plaintiff which was the objective of the defendant. Counsel submits further that as demonstrated by PW4 in his evidence, the presumption or impression of bankers and their clients which were the target of the publications of the disclaimers by the defendant, is wrong doing anytime a bank disclaims an employee. Counsel contends that the defendants never pleaded justification for the publication in the trial but seek to do so in their submission and clearly an afterthought. Paragraph 13 of their statement of defence on the issue simply state “the decision to publish a disclaimer is taken by the management based on the defendant’s policies” Counsel submits further that the defendant had no policy on disclaimers else those who were dismissed like PW1 would have had disclaimers published on them but which was not the case. That there was no evidence that for the seven months that the plaintiff resigned from the defendant and the publication the plaintiff had done anything that warranted the publication of the disclaimer hence the trial judges finding that it “could therefore be malicious”. Counsel distinguished this appeal from the case of Owusu-Domena vrs Amoah [2015- 2016] 1 SCGLR 790. That is the instant appeal unlike Domena, nothing was put forward as triggering the decision to disclaim and the disclaimer published. The plaintiff herein pleaded innuendo and also led evidence to establish same unlike Domena. Plaintiff called evidence in support and the trial judge clearly found innuendo pleaded by the plaintiff to have been proven. That PW4 clearly understood the publication in the innuendo manner, that is the impression that the plaintiff had committed fraud on the defendant bank. Again unlike Domena, where the plaintiff sued for reliefs the Supreme Court held were not known in tort, in the instant appeal the plaintiff sued for defamation and malicious publication, both known torts. Plaintiff also debunked the appellant’s assertion that his evidence was wrought with inconsistencies and inaccuracies, saying that his evidence was consistent and adequate. Counsel invited this court to dismiss these two grounds of appeal as unmeritorious. When the notice of appeal is the omnibus ground of judgment being against the weight of evidence, the authorities abound that it is incumbent on the appellate court to analyse the entire record of appeal, taking into consideration the totality of the evidence on record, both oral and documentary so as to satisfy itself that on the preponderance of the probabilities, the conclusions of the trial court were reasonably and amply supported by the evidence adduced at the trial. It is trite learning that this ground implies an allegation that the trial court failed to properly evaluate the evidence and consequently made the wrong findings of fact and conclusions. To assist the court is the discharge of its duty, an appellant is obliged to point out pieces of evidence which had they been evaluated properly by the trial court, ought to have led the court to a conclusion different for what was arrived at. This omnibus ground throws up the case of a fresh consideration of all the facts and law by the appellate court. It is the appellant’s duty to demonstrate to the appellate court the lapse in the judgment appealed against. Where the findings of the trial court are based on established facts, then the appellate court is in the same position as the trial court and can draw its own inferences from those established facts (i) Koglex Ltd No.2 vrs Field [2000] SC GLR 175 DEFAMATION Is the tort consisting in the publication of a false and derogatory statement respecting another person without lawful justification? A defamatory statement is one exposing him to hatred, ridicule or contempt, or which causes him to be shunned or avoided, or which has the tendency to injure him in his office, profession or trade. It must be construed in its natural and ordinary meaning; if not defamatory in such meaning, it must be construed in the special meaning, if any, in which it was understood by the person by and to whom it was published. It is for the judge to say whether the words are reasonably capable of a defamatory meaning, but for the jury to say whether under the circumstances of the case they in fact bear that meaning – Osborn Concise law Dictionary 8th Edition page 110 Defamation is also defined as the “act of harming the reputation of another by making a false statement to a third person”. Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally; or which tends to make them shun or avoid that person. A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. In summary a defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt or ridicule or which tends to lower him in the esteem of right thinking members of society. See Black’s Law Dictionary, 8th Edition page 448/9. It is very difficult to give one definition to the tort, defamation. The courts in their judgment have given several definitions of it to defamation. Halsbury’s Laws of England (4th Ed, Vol. 28 page 7) paragraph 10 states;- Defamatory statement: “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”. The elements of defamation were set down in the case of Owusu Domena vrs Amoah (supra) per Benin JSC. In establishing that a publication was defamatory, the plaintiff must plead and lead evidence on the following matters in order to succeed:- i. There was publication by the defendant. ii. The publication concerned him the plaintiff. iii. The publication was capable of a defamatory meaning in its natural and ordinary sense. iv. Alternatively or in addition to (iii) above, that from the facts or circumstances or other surrounding the publication, it was defamatory of him, the plaintiff. v. If the defendant sought the defence of qualified privilege or fair comment, that the defendant had been actuated by malice. And malice in such matters would be said to exist if there was spite or ill will on the part of the defendant or if the court found indirect or improper motive against the defendant in publishing the words complained of. The plaintiff will have to establish two factors to succeed in defamation. Firstly that the publication was capable of a defamatory meaning and therefore a defamatory meaning is found to exist, the plaintiff would have established his claim. Secondly, the defamation complained of may be established from the prevailing facts or circumstances or both. Plaintiff need to prove one of these to succeed in an action for defamation. See Graphic vrs Duffour - [2018/9] 1 GLR 581. Further, the publication when read as a whole is capable of a defamatory meaning; in other words, when taken in its natural and ordinary sense. In determining the natural and ordinary meaning, the court takes into account not only the literal meaning of the words but also the inferences which a reasonable person would draw from them in their context. The other respect is that the natural or ordinary meaning of words for the purposes of defamation is not their natural and ordinary meaning for other purposes of the law. There must be added to the implications which a court is prepared to make as a matter of construction all such insinuations and innuendos as could reasonably be read into them by the ordinary man – Owusu Domena vrs Amoah (supra). How do we determine defamation? 1. Would the imputation tend to “lower the plaintiff in the estimation of right thinking members of society generally” – Sim vrs Stretch [1936] 52 TLR 669? 2. Would the imputation tend to cause others to shun or avoid the plaintiff? Youssoupoff vrs Metro Goldwyn-Meyer [1934] TLR 581. 3. Would the words tend to expose the plaintiff to hatred, contempt or ridicule? – Parmiter vrs Coupland & Anor [1840] 6 M & W 105; 151 ER 340 INNUENDO In defamation, the inferential, inherent or secondary meaning of words is referred to as innuendo. It is a meaning arising from facts extrinsic to the words, whether solely or in addition to the natural and ordinary meaning which the plaintiff contends would lead a reasonable person to infer that the words were understood in that meaning. In summary where the words are not defamatory in their plain and ordinary meaning, but only by virtue of facts or circumstances attending the publication, the plaintiff must set out in his or her statement of claim the specific defamatory meaning which they conveyed to the persons to whom they were published. This meaning is known as the innuendo. It is trite law that the meaning of words in a libel suit is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention the publisher may colour the meaning. Thus it, was not what the defendant intended that mattered but what the words could reasonably be understood as conveying. In Owusu Domena (supra) the Supreme Court held 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. In determining the natural and ordinary meaning, the court takes into account not only the literal meaning of the words but also the inferences which a reasonable person would draw from them in their context – see Lewis vrs. Daily Telegraph Ltd [1964] AC 234 per Ld Devlin In the instant appeal, stating the facts briefly, the plaintiff resigned from the defendant’s employment voluntarily. He tendered his resignation letter, same was accepted and he duly paid all loans (debts) he owed the defendant. There was no misconduct nor malfeasance established against him while in the defendants employment. Seven months after his resignation, and for no cause established published a disclaimer on him with his pictures in the Daily Graphic and Ghanaian Times on 3rd March and 25th March 2013 respectively hence this suit for defamation. These two dailies are the biggest and widest circulated dailies in Ghana. They are also listed on the internet, online and other social media portals such as the World Wide Web (www). Their news coverage is therefore worldwide. The trial High Court after the trial held the plaintiff was defamed by the defendant. The defendant dissatisfied with that judgment launched this appeal. Defamation is mostly an issue of fact which has to be established by the plaintiff as stated earlier. For ease of reference, I shall reproduce the publication in the dailies:- THE AGRICULTURAL DEVELOPMENT BANK WISHEs TO ADVICE THE PUBLIC THAT MR. OSUMANU ALI AS PHOTOGRAPHED ABOVE IS NO LONGER IN THE EMPLOYMENT OF THE BANK. HE IS NO LONGER AUTHORIZED TO TRANSACT BUSINESS WITH CUSTOMERS OF THE BANK. ISSUED BY MANAGEMENT OF AGRICULTURAL DEVELOPMENT BANK. From the evidence on record, the plaintiff was the Treasury Officer of the defendant’s bank and from 3rd March, 2010 worked as a Senior Currency Trader (grade B10) and Head of the Forex Desk. Is the disclaimer above defamatory of the plaintiff? While the plaintiff asserts so, the defendant in their defence claim that what they published was a fact and also to protect their institution. On the face of the record is the disclaimer capable of a defamatory meaning or could the defamation complained of be established from the prevailing facts or circumstances or both? We are cautioned that the meaning of words in a libel suit is determined by the reaction of the ordinary readers and not by the intention of the publisher. Thus it is not what the publisher intended that mattered but what the words could reasonably be understood as conveying. The defendant’s assertion is that their intention by the disclaimer was to inform the public about the fact that the plaintiff had left the bank and so their customers should not deal with him. The question we ask is whether the ordinary reader could understand the disclaimer the same way that the defendant intended it or could read any other inferences, meaning or understanding into. The plaintiff is a banker working in the bank i.e. defendant bank and at the treasury, a Senior Treasury Officer. The treasury is the money warehouse of every bank. The treasury deals with Forex trading, determining interest rates and forex trading activities of the bank, especially interbank and other corporate entities and forex bureaux. It is a notorious fact in Ghana that once a financial organization like the bank publishes a disclaimer on a staff with his pictures, the first impression that comes to mind of the ordinary man is that the person must have misconducted himself in relation to money. It could be money belonging to the bank or a customer, client, etc. The ordinary reader could infer a secondary meaning to that publication, such as a misconduct and this is the innuendo that goes with defamatory publications. The defamatory meaning or innuendo herein as the plaintiff complained of in his statement of claim is that readers may think he misconducted himself in the bank when in fact he voluntarily resigned without blemish. In fact, from the evidence on record, the plaintiff had to resign because according to him the Managing Director of the defendant bank failed to keep to his word of remuneration he promised the plaintiff, upon which he vacated his job at the Cal Bank. In fact, from the evidence the plaintiff tendered, which was not denied, his remuneration at the Cal Bank was way higher than what the defendant paid him for the two years he worked with them. According to the plaintiff he resigned because the Managing Director failed to keep to his promise. It is thus obvious the plaintiff did not resign from the defendant bank on a happy note, only to have the shock of being slapped with a disclaimer on him after seven good months. We think the trial High Court Judge was right in holding that the publication was defamatory of the plaintiff. Even if the ordinary and natural meaning of the words in the disclaimer are not defamatory, there was that innuendo therein that injured the reputation of the plaintiff. How many readers care to find out the reason for the disclaimer or how the plaintiff exited the bank? The impression to be carried from the publication is that the plaintiff had misconducted himself at the bank and the most probable misconduct is to do with money. The publication could just have stopped at informing the public the plaintiff had resigned from the bank. Going further to say “He was no longer authorized to transact business with the customers of the bank” means a lot to the ordinary reader. That publication will definitely set tongues wagging. We believe the publication was defamatory of the plaintiff with the innuendo therein and we hold so. We also are of the view that the defendant, having no disclaimer policy, finding nothing against the plaintiff during his tenure there but to publish this disclaimer seven months after he resigned from the bank was purely actuated by malice. There is nothing on record to tell us why the need for that publication more so, where those found culpable after facing Committees of Enquiry established by the defendant and dismissed are not disclaimed leads to only one obvious conclusion, malice. This malicious publication definitely injured the reputation of the plaintiff and we hold so. There was no justification whatsoever for the publication by the defendant. Forex trading is between the bank and other banks (interbank) or between the bank and other corporate bodies, forex bureau or individuals. There is evidence by the plaintiff which was not controverted that his duty is to determine the forex rates, of course get business in forex for the bank but he does not pay or dole out the cash to the customers. That is done by the cashiers, a different department from his. He is therefore not an officer that deals with the customers on one-on-one basis over the counter. There was no need at all for the publication except for some other collateral reasons. The appellant alleged that the plaintiff’s evidence was full of inconsistencies and contradictions. This is mere assertion by the appellant which was not established. They did not lead any positive and cogent evidence in the trial to establish that assertion except to say so in their submission. That assertion is not established to our satisfaction and therefore dismissed. The plaintiff called PW4 to establish how he felt about the plaintiff after the publication. This satisfies the legal requirement that the plaintiff must lead evidence of injury to his reputation. These grounds of appeal by the appellant’s lacks merit and same are dismissed as unmeritorious. GROUNDS 1, 2 & 3 1. That the trial Judge erred in law in awarding Gh¢100,000 general damages against the defendant for defamation. 2. The learned Judge erred in law in awarding exemplary damages to libel in the sum Gh¢500,000 in favour of the plaintiff against the defendant. 3. That the general damaes of Gh¢100,000 and the exemplary damages of Gh¢500,000 awarded to the plaintiff against the defendant are excessive and unreasonable. Counsel for the appellant submits that words in the publication were in no way defamatory of the plaintiff and therefore a finding to the contrary and the consequential award of damages made in favour of the plaintiff were made in error. It is his case that the plaintiff led no evidence on any damages that he allegedly suffered as a result of the said publications, yet the trial court would decree hefty sums in damages in his favour. It is his contention that in the absence of the requisite evidence of any damages that the plaintiff must have suffered even if the publications complained about were defamatory, the plaintiff was only entitled to nominal damages. Counsel submits that the award of damages in favour of the plaintiff was not justified. Counsel for the respondent in answer submits that the damages were awarded after the trial High Court found the publication to be malicious and defamatory by innuendo. He said libel is actionable per se and so needs no proof of damage. Counsel submits that in cases of libel, injury to reputation is presumed to flow from the publication of defamatory material and the claimant is entitled to damages at large. This he said signifies that the assessment of damages depends almost entirely on the facts of the individual case. He opined that counsel for the appellant’s submission that the plaintiff was only entitled to nominal damages is contrary to the law. Counsel referred the court to Lunney & Oliphant’s Book on Tort Law Text and Materials, pg. 769, where the authors state what governs the award of damages in defamation actions as follows: “Every award should reflect the seriousness of the charge, the extent of the publication and the nature of the defendant’s conduct both in publishing the defamation and subsequently the defendant’s persistence in an unfounded defence of justification may serve to increase the distress suffered by the claimant as a result of the defamation and hence the size of the award.” On the exemplary damages awarded by the trial court, counsel said the defendant’s conduct in publishing the disclaimers were reprehensible and actuated by malice. Counsel for the plaintiff said the plaintiff is a young man, who was lured to leave his job with another bank to the defendant’s bank. He felt that he was deceived when he was promised a better remuneration. He resigned, took steps as an honourable man to pay his staff loans that he contracted as an employee. He was disclaimed with his pictures for no reason. The defendant’s decided to damage the plaintiff like “if they cannot have him, nobody else” attitude. The publications were in the Daily Graphic and Ghanaian Times, the two most read newspapers in Ghana. It is his contention that rather than agreeing to rescue the young plaintiff’s career and publishing a retraction and an apology as ordered by the High Court, the defendant rather launched this appeal to justify the publication, among others as prudent. Counsel submits further that the conduct of the defendant’s Management was oppressive on the plaintiff and their action was arbitrary based on their whims and caprice since they had no policy on disclaimers. Their action was therefore unconstitutional because the plaintiff was treated differently from his colleagues who exited the defendant’s employment contrary to Article 17 of the 1992 Constitution. Counsel again referred the court to Lunney & Oliphant (supra) at pg. 865, stating what governs award of exemplary damages in defamation action as follows, citing Rookes vs. Barnard [1964] AC 1129 HL. “Although the award of damages in the law of tort serves a primarily compensatory purpose, the court may exceptionally seek to punish (or make an example of) the defendant by the award of exemplary or punitive damages.” Counsel prayed for an enhancement of the exemplary damages awarded by the trial Judge because of the conduct of the defendants. The trial Judge on the award of damages and delivered herself thus: i. “It has been established that an untrue statement about the plaintiff was published by the publication of the disclaimer and this was read by third parties resulting in injury to the reputation of the plaintiff. In order to re-construct his dented reputation, Gh¢100,000 general damages is awarded in favour of the plaintiff” – [page 135 ROA]. ii. With respect to relief 9 Gh¢500,000 is hereby awarded for exemplary damages for libel. The plaintiff’s relief 4 & 9 are as follows:- Relief 4 – General damages against the defendant for malicious publications thereby denying the plaintiff the opportunity and or right to seek employment to practice his trade. Relief 9 – Exemplary damages for libel in the sum of Gh¢2,000,000.00 DAMAGES: Damages are compensation or indemnity for a loss suffered by a person following a tort or a breach of some statutory duty. Osborne Concise Law Dictionary, 8th Edition, pg. 105. Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong. Frank Graham (The Law of Damages) 1936. As to the allegation of damage, the distinction between special and general damages must be carefully observed. General damage such as the law will presume to be the natural or probable consequence of the defendant’s act need not be specifically pleaded. It arises by inference of law and need not, therefore, be proved by evidence and may be averred generally. Special damage is such pecuniary loss and can be precisely quantified and is such a loss as the law will not presume to be consequence of the defendant’s act, but which depends in part, at least, on the special circumstance of the case. It must therefore always be explicitly claimed on the pleadings, and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant’s conduct. No damage can be recovered for a loss actually sustained, unless it is either the natural or probable consequence of the defendant’s act, or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted. All other damage is held remote. – H. Parsons (livestock) Ltd. vs. Uttley Inghram & Co. Ltd. [1978] QB 791. We also have a kind of damage called the “exemplary damage.” Exemplary damages are awarded where the jury desire to mark their disapproval of the defendant’s conduct towards the plaintiff. They therefore punish him by awarding the plaintiff damages beyond the amount which would be adequate compensation for his actual loss or injury. The court is only allowed to give such damages in actions where there has been oppressive, arbitrary or unconstitutional conduct by a government official, or where the defendant has sought to achieve some financial or material gain for himself unless such damages are expressly authorized by statute. Everything which aggravates or mitigates the conduct of the defendant may be taken into consideration, including the means of the parties. But a claim for exemplary damages must be specifically pleaded together with the facts relied on. See Rooks vrs. Barnard (supra). PURPOSE OF EXEMPLARY DAMAGES Exemplary damages are awarded if the defendant acted in a wanton fraudulent, reckless, oppressive or malevolent manner against the plaintiff. This damage is punitive and is an additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant’s tortious act, and to punish the defendant. Punitive damages go beyond compensating the aggrieved party and are specifically designed to punish defendants whose conduct is considered grossly negligent or intentional. They are also called exemplary damages when they are intended to set an example to deter others from committing similar acts. Exemplary damages are assessed in the legal process to punish a defendant for negligence. The defendant is usually a company or other large entity. Punitive damages are awarded in addition to actual damages in certain circumstances. It is considered punishment and are typically awarded at the court’s discretion when the defendant’s behavior is found to be especially harmful. The courts may choose to award punitive damages only if the plaintiff can prove that the defendant engaged in an intentional tort and or engaged in wanton and wilful misconduct. Punitive damages requires evidence that the defendant proceeded intentionally with an unlawful action after knowing that the act was likely to cause injury. Some grounds for exemplary damages are the deprivation of economic compensation caused mental anguish, fright, serious anxiety, besmirched reputation, and wounded feelings. This award is called exemplary when they are intended to set an example to deter others from committing similar acts. Normally, the amount awarded must be large enough to prevent the defendant or others from committing similar offences in the future. This could be awarded in an action where the defendant has not only committed a legal wrong but also has behaved in an outrageous and insulting manner. In effect, exemplary damages in some circumstances can be awarded in addition to general damages as the court deems fit. It is trite law that an appellate court will generally only interfere with damages awarded by a trial court in the exercise of its discretion on the grounds that; i. The trial Judge acted on some wrong principles of law. ii. The amount awarded was so extremely high or so very small as to make it in the judgment of the appellate court an entirely erroneous estimate of the damages to which the plaintiff is entitled. See i. Societe General de Comp. vrs. Ackerman [1972] 1 GLR 32 ii. Bressaah vrs Asante & Anor. [1965] GLR 117. The well known and time honoured legal principle is that an appeal against a decision based on the exercise of a courts discretionary jurisdiction would succeed in only these clearly exceptional cases where in sum the Judge failed to act judicially. The applicable principles are an appellate court would interfere with the exercise of discretion where the court below applied wrong principles or conclusion reached would work injustice; or that the discretion was exercised on wrong or inadequate material, arbitrary, capricious, etc, uninformed conclusions stand in danger of being reversed. See – Sappor vrs Wigtap Ltd. [1007/8] SCGLR 676. An appeal against the exercise of the courts discretion as in the instant appeal may succeed only on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account. See- Owusu Ansah vrs Owusu Ansah [2007’8] 2 SCGLR 870 Again, to depart from or set aside the findings of fact made by a lower court, the following must exist:- i. That the finding was perverse ii. Unwarranted iii. Unsupported by the evidence on record - Georgina Amartey vrs Mrs. Winifred Iddrisu, Civil Appeal No. JA/26/07 dated 29th April, 2009, per Jones Dotse, JSC In the instant appeal, the trial High Court Judge awarded general damages of Gh¢100,000 to the plaintiff. In addition, she exercised her discretion in awarding additional damages as exemplary damages to the general damages awarded the plaintiff. She awarded Gh¢500,000. She made a finding a fact that the publication of the disclaimer by the defendant defamed the plaintiff and therefore awarded the general damages and in addition the exemplary damages. Both are discretionary depending on the circumstances of the case or tort by the defendant. We are faced with two issues, first whether the finding of fact made by the court was justified and secondly the question of the award. Was the courts finding of fact that the publication complained of defamed the plaintiff perverse? Was the finding contrary to the accepted or expected standard practice? We do not think so. She found as a fact that the publication injured the reputation of the plaintiff and which we affirm. This finding is supported by the evidence on record in our view and to perverse either. The plaintiff pleaded innuendo, that even if the words used in their natural and ordinary meanings as on the face of it do not suggest defamation, it carries on innuendo that defamed him. What is an innuendo? Quite apart from direct attacks on the claimant’s reputation, defamation must also include implied or veiled attacks, which are generally referred to as innuendo. Sometimes the claimant argues that the words bear an inner meaning which renders them defamatory, he says in other words, that even if they are not defamatory on this surface, they are so because of an innuendo. We do not think the trial court erred in making a finding of fact that the publication by the defendant defamed the plaintiff. We shall therefore not disturb that finding. Was the trial court right in awarding exemplary damages in addition to the general damages to the plaintiff? I discussed in details what exemplary damages are, its purposes and when it was appropriate to be awarded. It is also discretionary. The plaintiff pleaded this head of award as required by the law. We do not think the trial judge erred in exercising her discretion to award exemplary damages to the plaintiff. We do not have any grounds to disturb same. In fact the trial judge had the right to award exemplary damages in addition to general damages in the same suit. This right depends on the circumstances of each case. An appellate court can only interfere with the quantum of damages awarded by a lower court on the grounds listed earlier. We do not think the trial judge acted on any wrong principles of law in awarding the amounts awarded as damages under both heads. Both are discretionary. While the general damage flows from the act of the defendant as foreseen consequences of the act the latter is punitive to act as a determent to the defendant from repeating the tort and to others to refrain from repeating what the defend did. To act as deterrent, the amount must be big hence the Gh¢500,000. We do not think the trial court erred in awarding both heads of damages and so same well not be disturbed. In effect the appeal lacks merit and same is dismissed in its entirety. The plaintiff’s variations are all dismissed as unmeritorious sgd SENYO DZAMEFE (JUSTICE OF APPEAL) I AGREE sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) DISSENTING KOOMSON, JA I had the benefit of reading the judgment of the court, delivered by my brother Dzamefe, JA. I disagree with the opinion of the majority in respect of the appeal. My view is that, the publication of the truth is a good defence to a libel claim, because one of the elements that must be proven in a defamation suit is the falsity of the statement. If a statement is true, it cannot be defamatory. A brief background of the case is that the Defendant/Appellant (hereafter called the “Appellant”) employed the Plaintiff/Respondent, (also to be called the Respondent hereafter). The Respondent, tendered in his resignation after working with the Appellant for a period of two years and some months. Sometime after the resignation of the Respondent, the Appellant caused a disclaimer to be published in the Daily Graphic Newspaper and the Ghanaian Times Newspaper as follows: “THE AGRICULTURAL DEVELOPMENT BANK WISHED TO ADVICE THE PUBLIC THAT MR. OSUMANU ALI AS PHOTOGRAPHED ABOVE IS NO LONGER IN THE EMPLOYMENT OF THE BANK. HE IS NO LONGER AUTHORIZED TO TRANSACT BUSINESS WITH CUSTOMERS OF THE BANK”. It is this publication by Appellant that caused the Respondent to institute an action at the High Court, Accra and asked for the following reliefs: i) General damages against the Defendant for breach of contract and/or deceit from 1st March, 2010 to 31st August 2012; ii) Special damages of the sum of Gh¢200,885.10 against the Defendant being amount lost as result of the breach of contract from the period of 1st March 2010 to 31st August 2012 using Cal’s monthly income of February 2010 figures; iii) Interest on the sum of Gh¢200,885.10 from 1st September, 2012 to date of final payment; iv) General damages against the Defendant for malicious publications thereby denying the Plaintiff the opportunity and/or right to seek employment to practice his trade; v) Special damages for the lost opportunity to be employed for at least 20 years using the monthly income of the Plaintiff at Cal using the February 2010 figures which works out to be Gh¢2,612,025.60; vi) A further special damages of Gh¢165,000.00 being cost of the trucks invested by the Plaintiff as a result of the breach of contract and/or lost opportunity to work; vii) Interest on the amount of Gh¢165,000.00 from the 1st December, 2013 to date of final payment; viii) Damages for libel; ix) An exemplary damages for libel for the sum of Gh¢2,000,000.00; x) Perpetual injunction to restrain the Defendant, its agents, servants, or otherwise from further publishing or causing to be published the said publication or similar words defamatory of the Plaintiffs; xi) Cost. xii) Any other reliefs the Honourable Court may deem fit. The High Court, after the trial dismissed the reliefs i, ii, iii, v, vi and vii but granted the reliefs iv, viii, ix and x of the Respondent’s claim. Costs of Gh¢10,000.00 was also awarded against the Appellant. Dissatisfied with the decision of the trial Court, the Appellant appealed against same on the following grounds: (i) The learned trial judge erred in law in awarding Gh¢100,000.00 General Damages against the Defendant for defamation. (ii) The learned judge erred in law in awarding exemplary damages for libel the sum of Gh¢500,000.00 in favour of the Plaintiff against the Defendant. (iii) That the General Damages of Gh¢100,000.00 and exemplary damages of Gh¢500,000.00 awarded to the Plaintiff against the Defendant are excessive and unreasonable. (iv) The learned trial judge erred when she ordered that the Defendant should publish a retraction and apology. (v) The judgment of the Honourable Court that the Plaintiff was defamed by the Defendant is against the weight of evidence before the court. (vi) Additional grounds to be filed upon the receipt of the Record of Appeal. The Respondent, also dissatisfied with part of the judgment of the trial High Court, filed a Notice of Intention to Contend that Decision of Court below be varied as follows: (a) Reversing part of the judgment that refused to grant the following reliefs of the Plaintiff/Respondent: reliefs (i), (ii), (iii), (v), (vi) and granting those reliefs to the Plaintiff/Respondent. (b) Further on in the alternative an order awarding general damages for the plaintiff/Respondent against the Defendant/Appellant for malicious publication. (c) Further on in the alternative an order increasing the levels of the awards made against the Defendant/Appellant for malicious publication. (d) Any other order the Court may deem fit to make. It is noted that, the Appellant did not file any additional grounds of Appeal. Counsel for the Appellant argued the grounds (v) and (vi) together. It is to be noted that, the ground (vi) which Counsel for Appellant stated in his written submission is rather the ground (iv), which reads as “The learned trial judge erred when she ordered that the Defendant should publish a retraction and apology.” Clearly, the ground (vi) stated should read as ground (iv). As a matter of fact, the ground (vi) is stated on the Notice of Appeal as “Additional grounds to be filed upon the receipt of the Record of Appeal”. Since no additional ground of appeal was filed by the Appellant, it can be concluded that the ground (iv) whose wording is quoted as ground (vi) was an error or typographic mistake. The contention of Counsel for the Appellant on these two (2) grounds are that, the trial judge failed to give any comprehensive consideration or at all, of the case of the Appellant in its totality and therefore the trial court made its decision against the weight of evidence adduced at the trial. Counsel for Appellant further went on to argue that the words in Exhibits Y and Y1 found on pages 104-105 of volume 3 of the Record of Appeal are not defamatory even by the definitions of defamation relied on by the trial court and the said words are not untrue contrary to the trial court’s holding. Counsel for Appellant made reference to these cases to support his contention: SIM v STRETCH [1936] 2 A. E. R, 1237; OWUSU-DOMENA v AMOAH [2015-2016] 1 SCGLR 790 @ 801; MULLIGAN v COLE [1875] L. R. 10 QB 549. Respondent’s Counsel also argued in his written submissions that, nowhere in the judgment of the trial court did the trial judge held that “the ordinary meaning” of Exhibits Y and Y1 are defamatory. According to Counsel for Respondent, the Respondent pleaded innuendo. It was therefore contended by Counsel for Respondent that, the trial judge’s decision that the Plaintiff had been defamed by Exhibits Y and Y1 was based on innuendo. Counsel made reference to the case of Anthony v University of Cape Coast [1973] 1 GLR 299 to support his contention that the decision of the trial judge which was based on innuendo was properly made. It is to be observed that, it is the duty of a plaintiff to prove that a published statement is defamatory of him. Prima facie, the publication of a defamatory matter is a cause of action. The plaintiff must however in his pleading be able to set out with reasonable certainty the alleged defamatory words. He must also allege in his pleadings that the imputation published is false. Clerk & Lindsell on Torts, Sixteenth Edition, at page 1080 - 1081, the learned Authors state: ‘‘The right of each man, during his lifetime, to the unimpaired possession of his reputation and good name is recognized by the law. Reputation depends on opinion, and opinion in the main on the communication of thought and information from one man to another. He, therefore, who directly communicates to the mind of another matter untrue and likely in the natural course of things substantially to disparage the reputation of a third person is, on the face of it, guilty of a legal wrong.’’ (Emphasis mine) Again, in his book, The Law of Torts in Ghana, Text, Cases and Materials, 2014 Ed, the learned author Stephen Offei, states at pages 541,542: ‘‘Truth is not always a defence in customary law slander; but it is a solid defence at common law. Justification (or truth) provides a defence on questions of fact: i. If the statement made by the claimant is true, there can be no action for defamation. ii. It is a complete defence to an action for libel or slander that the words complained of were true in substance. iii. The defendant must prove that the statement is true in substance in each and every respect (Alexander v North Eastern Rly Co (1865) 6 B & S 350; 122 ER 1221) and fact. And if, an innuendo has been pleaded, the truth of that must also be proved. iv. It is for the defendant to prove on the balance of probabilities that the statement was true, and not for the claimant to show that the statement was false (or true). v. The fact that the defendant was inspired by malice is irrelevant if the statement is true. vi. Where the defendant repeats a defamatory statement he has heard from another source, he must prove that the statement is true and not simply that it is true that such a statement was made to him (Truth (NZ) LTD v Holloway [1960] 1 WLR 997. vii. The words used by the defendant may consist of two or more imputations against the claimant. What the defendant must prove in justification depends on whether those imputations are severable and distinct or whether they have a ‘common sting’. If the imputations are severable, and the claimant sues in respect of all of them, then at common law the defence of justification will succeed only if the defendant proves that all the imputations are true. If the defendant fails in that task, the claimant will be entitled to a verdict and costs, even though the imputation not proved to be true does not materially injure his reputation.’’ It is clear that for a publication to be libel, the words published must be false. A plaintiff must also allege in his pleading that the imputation published is false: see page 1082, Clerk & Lindsell on Torts, Sixteenth Edition. It is gainsaying that, no single satisfactory judicial definition exists at common law in respect of defamation. There is also no applicable statutory definition of defamation in Ghana. Reference will be made to some of the decided cases. Parke Baron, in Parmiter v Complands (1840) 6 M & W at 108; E. R. 340, defined defamation to be a false publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, ridicule or contempt, e.g. humorous caricature or cartoon, describing a person as hideously ugly, may be defamatory because it does not only suggest physical un-attractiveness but that the person’s appearance is repulsive. See also Thernton v Telegraph Media Group Ltd [2011] 1 W. L. L. 1985. Here the Plaintiff brought an action on the case for a series of libels published of the Plaintiff, the late Mayor of Winchester in the “Hamphshire Advertiser” newspaper imputing to him perfidious and corrupt conduct and ignorance of his duties as mayor and justice of the peace for the borough. It was held that, in a case of defamation, the judge’s duty is to tell the jury the law regarding defamation and leave it to them to decide whether the words were in fact defamatory. Similarly, in Villers v Monsley [1969] 2 Wils. 403, the Defendant wrote of the Plaintiff that he stunk of brimstone and that he had the itch. It was held for the Plaintiff, and Lord Wilmot said, “if any man deliberately or maliciously publishes anything in writing concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him, it is actionable. See also Byrne v Dean [1937 1 K. B. 818. Lord Atkin, in Tournier v Nat. Provincial Bank [1924] 1 K. B. 661, had occasion to state that words used which turned to damage a person in his profession, business, office or trade, is defamatory. In that case, the Plaintiff was a customer of the Defendant Bank. A cheque was drawn by another customer in favour of the Plaintiff who, instead of paying in into his account, endorsed it to a third person who had an account at another bank. On the return of the cheque to the Defendant, their manager inquired about the person to whom it had been paid and was told it was a bookmaker. This information the Defendant disclosed to third parties. The Plaintiff succeeded in defamation. There was however a distinction made between an attack which affects the person’s business, office, profession or trade and one which affects him personally: See also Jones v Jones [1933] Ch. D 842. Lord Atkin restated the law and provided another dimension in the case of Sim v Stretch [1936]2 All E. R. 1237. In that case, the Plaintiff’s housemaid was enticed away by the Defendant, who sent a telegram to the Plaintiff that, “Edith has resumed her service with us today. Please send her possessions and the money you borrowed, also her wages…….”. In an action for damages for libel, the Plaintiff argued that the words of the telegram were defamatory, that they suggested that, out of necessity, he had borrowed money from his housemaid and that he had failed to pay her wages. It was held that the action must fail as the words of the telegram were not capable of a defamatory meaning. Lord Atkin stated the test for whether a publication is defamatory to be “would the words tend to lower the Plaintiff in the estimation of the right-thinking members of the society generally?” The next element in the common law of defamation is the interpretation of the words used, to determine whether they are actually defamatory. These words must be construed in their fair and natural meaning as reasonable, ordinary people will understand except where innuendo is pleaded (as in the instant case). Further, in a defamation matter there should be a reference to the Plaintiff i.e. there must be something in the defamatory statement pointing to the Plaintiff. To be actionable, the defamatory words must be understood to be published of and concerning the Plaintiff. This does not mean that the Plaintiff must be specifically mentioned by name; but there should be evidence connecting the Plaintiff to the statement: See Le Famu v Malcomson [1940] 2 K. B. 507, where the Appellant wrote an article alleging cruelty in the Respondent’s factory. Although the letter, in the course of denouncing the cruelty did not specifically refer to the Respondent, it was held that, even though defamatory matter might appear to refer to only a class, a person can by innuendo, show that it referred to him and such a person may maintain an action in respect of such defamation. It is further noted that, publication libel protects reputation. Therefore, unless the defamatory matter is published, a person’s reputation suffers nothing. If a defamatory matter is therefore published to the person of whom it was written only, there is no publication. In Huth v Huth (1915) 3 K. B. 32, the Defendant posted a statement to the Plaintiff in a sealed envelope, which they alleged was defamatory. In breach of his duty and out of curiosity, the statement was taken and read by a butler. The Plaintiff claimed that this constituted a publication of the libel for which the Defendant was responsible. It was held that the statement was not published in law and the Plaintiff’s action failed. It must be noted however, that, as a rule of thumb, a Defendant is deemed to know or anticipate, because it is reasonable, that a spouse might, in some circumstances, open the other’s letters. Similarly, a businessman’s secretary is likely to open letters addressed to him and even if marked as confidential, the confidential secretary. Lord Justice Harman summed it up in the case of Theaker vrs Richardson [1962] 1 W. L. R. 151 at 157-1 at 157- 158 thus: “the question of a libel contained in a letter will depend on the state of the Defendant’s knowledge, either proved or inferred, of the conditions likely to prevail in the place to which the libel is destined”. It is to be observed that, an innuendo is a defamatory imputation whereby extrinsic facts, known to the reader or listener, import into the words spoken or the statement, some secondary meaning, in addition to or alteration of their ordinary meaning. In his book, The Law of Torts in Ghana, Text, Cases and Materials, 2014 edition, the Author, Stephen Offei, at page 534, states: “Quite apart from direct attacks on the claimant’s reputation, defamation must also include implied or veiled attacks, which are generally referred to as innuendo. Sometimes the claimant argues that the words bear an inner meaning, which renders them defamatory; he says in other words, that even if they are not defamatory on the surface, they are so because of an innuendo. This depends on factors known to the recipient of the statement at the time of publication………” The question that needs to be resolved at this stage in the instant appeal, is as to whether the Respondent successfully established that the publication was defamatory. In doing this, the Respondent had a duty to plead and establish by evidence that: (a) there was a publication by the Appellant; (b) that the publication was false and concerned him ; (c) that the publication was capable of a defamatory meaning in its ordinary and natural sense; (d) that the facts and circumstances surrounding the publication was defamatory of him; and (e) If the Defendant seeks the defence of qualified privilege or fair comment, that the Defendant was actuated by malice; See Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790 @ 802. Now, in the instant case, the respondent pleaded in his Statement of Claim as follows: “42. The publications were maliciously published by the defendant. 43. In their natural and ordinary meaning the said words published and quoted in paragraph 35 above meant and were understood to mean that the plaintiff defrauded or attempted to defraud or had the mind to defraud the members of the public by transacting business or attempted to transact business or contemplated to transact business with members of the public on behalf of the defendant after he ceased to be in the employment of the defendant and was accordingly guilty of attempted defrauding by false pretences or defrauding by false pretences or had a criminal mind. 42. Further or in the alternative to paragraph 40 above the words complained of meant and were understood to mean that the plaintiff was dismissed by the defendant from the employ of the defendant for a dishonest wrong or otherwise. 43. Further or in the alternative to paragraphs 40 and 41 above by way of innuendo the words complained of in paragraph 35 above meant and were understood to mean that the plaintiff was a dishonest and/or a fraudster an accordingly dismissed by the defendant. Particulars a) Dismissed for fraud or related wrong; b) Dismissed for dishonest breach f trust or related wrong” There is no dispute that there was a publication made by the Appellant about the Respondent. The publication is contained in Exhibit Y and Y1. The question that requires resolution is as to whether or not the words are false and defamatory and if so whether the Appellant had a valid defence. In their paragraphs 11 and 12 of their statement of defence (page 29 of Record of Appeal) the Appellant pleaded thus: “11. The Defendant in answer to paragraphs 38, 39,40 and 41 of the plaintiff’s Statement of Claim that the publication was only an information to the pubic of the true state of affairs. 12. The Defendant denies paragraphs 42, 43, 44, 45, 46 and 47 of the Plaintiff’s Statement of Claim and will put the Plaintiff to strict proof of the averments therein”. My understanding of the pleadings contained in the paragraph 11 of the Appellant’s Statement of Defence is that, the Appellant relies on a defence of publication of the truth which amounts to a plea of justification. It is to be noted that the Respondent relied, not on the ordinary and natural meaning of the words in the publication but on innuendo. From his pleadings, especially paragraph 42 and 45 of the statement of claim, the Respondent pleaded innuendo. By his paragraph 42 of his statement of claim, the respondent pleaded that, “The publications were maliciously published by the defendant.” The word, “malicious” is used in a technical sense as referring to a wrongful intention which is presumed by the law, from the fact of publication. This presumption may be rebutted by the defendant showing some just cause or excuse for the publication, as for instance, that the occasion was one of qualified privilege. In the instant appeal, the Appellant pleaded justification or the publication of the truth: see the paragraph 11 of the statement of defence. An examination of the pleadings of the Respondent does not disclose the fact that what was published of him by Appellant was false. The Appellant haven pleaded a just cause, the onus then was on the plaintiff to prove the existence of malice or of some improper motive or indirect motive under the influence of which the Appellant abused the privileged occasion. The evidence on record show that the Respondent was no longer in the employment of the Appellant having resigned and therefore had no authorization to transact business or enter into any contract on behalf of the Appellant. It is however the case of the Respondent that the said publication was made maliciously: see paragraph 42 of the statement of claim. It is for the Respondent to prove that the Appellant was actuated by malice. It is observed that, malice means that the Defendant (Appellant) has no honest belief in the truth of the statement: see Horrocks v Lowe [1975] AC 135; [1974] 2 WLR 282 (HL). In Tackyie v Kabbah [1956]1 WALR 213, the Plaintiff was the regent and chairman of the financial committee of a local traditional council. The Defendant wrote several letters to the Police in which he alleged the Plaintiff to be fraudulently diverting the traditional council’s money for his personal use. The Police after satisfying themselves that the allegations were baseless informed the Defendant accordingly. In spite of this, the Defendant subsequently wrote another letter containing the same allegations to the Local Government authority and copied it to other persons including the Local Government Minister. In an action for defamation, it was held that the fact that the Defendant persisted in uttering defamatory remarks about the Plaintiff after the Police inquiries and considering the extent of publicity given to the defamatory matter, his actions had not only gone beyond what would have been appropriate in the circumstances, but had become malicious and therefore any privilege he might have had was defeated. As stated earlier, the duty to establish malice rests on the Respondent. Section 10 of the Evidence Act, 1975 (NRCD 323) provides: “10. Burden of persuasion defined. (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. (2) The burden of persuasion may require a party (a) To raise a reasonable doubt concerning the existence, or non- existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.”. The Section 12 then provides for the meaning of “preponderance of probabilities” as that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. One way of proving malice is for the Plaintiff to show that, the Defendant made the statement to serve a purpose other than justice or that the Plaintiff exceeded the privilege and went into excesses: See Tackyie v Kabbah (supra) and also Adam v Ward [1917] AC 309. In the instant case, it is true that the Respondent was not in the employment of the Appellant at the time of the publication in Exhibits Y and Y1. It is also true that having left the employment of the Appellant, the Respondent had no authorization to enter into any transaction with any person on behalf of the Appellant. I am of the opinion that, this information is an accurate and truthful information which the Appellant gave to the general public. The Appellant owed a duty to themselves and the general public regarding the fact that the Respondent was no longer in its employment. The question is, does the timing of the publication smacks of malice? The evidence on record show that the Respondent resigned his position from the Appellant Bank effective the 31st August, 2012. The publication was made by the Appellant on the 25th March, 2013 and 3rd April, 2013. This is about 7 months after the resignation of the Respondent. Can a period of 7 months after the resignation of the Respondent be said to be too long and unreasonable for the Appellant to inform the public about the fact that the Respondent no longer works with Appellant and had no authorization to act on its behalf? I do not think so: see Asante v Maersk [2003-2005 2 GLR 43. The fact is that, from the evidence on record, the Appellant had no laid down policy regarding publication of such matters to dictate or suggest when the Appellant should have published such a statement, which they had the right to publish, in any case. As at February 2013, the Respondent had outstanding matters to clear with the Appellant. At page 49 is a letter written by Akwelley A. Bulley as follows: ‘‘RE: SETTLEMENT OF CAR LOAN Please find attached a statement of your account with the Bank as at January 31st 2013. We wish to remind you that having failed to comply with the deadline of November 1st, 2012, the balance continues to accrue interest and will continue to do so until the amount is fully paid off. Yours faithfully, Akwelley A. Bulley Executive Head- HR. This is a clear demonstration that, between the parties there were some outstanding issues that needed to be sorted out. The fact of this is further revealed at page 173 of the ROA during the cross examination of the Respondent by counsel for Appellant: Q. You made payment of GH¢15,000.00 on the 07/02/2013. A. My lord I remember making GH¢15,000.00 as part of the payment. Q. You also had series of correspondence with the Defendant over your indebtedness. A. Yes my lord. Q. Throughout all the discussion from your resignation through to the first quarter 2013 you never raised any issue of breach of contract with the Defendant. A. My lord the correspondence that took place was mainly about the loan indebtedness. All my part was in response to theirs in relation to the debt.’’ From the above evidence, it is abundantly clear that, there were outstanding matters to be cleared by the parties. If the trial Judge had taken these into consideration, she would have not come to the conclusion that it took the Appellant 10 months before making the publication: see page 133 of the ROA. In any case, Management of Appellant had the discretion to determine when the publication should be done. In all fairness, it is my considered opinion that the period of almost 7 months, interspersed with correspondence between the parties in an attempt to resolve the outstanding issue of the Respondent’s indebtedness, that lapsed before the publication of the truthful statement (which the Appellant had a duty to publish so as to protect its interest) is a reasonable period of time. This does not amount to a dishonesty on the part of the Appellant. The contents of the publications are true and the Appellant, it cannot be said that, had no belief in the truth of the publication. The trial judge erroneously stated that the Appellant made the publication 10 months after the Respondent had resigned: See page 133 of Record of Appeal. The Respondent tendered in the resignation in July 2012 and it was to take effect in August 2012. The publications were made on 25th March 2013 and 3rd April 2013 respectively. The period between August 2012 and March 2013 cannot be 10 months. This is a clear error of calculation. Then at page 134 of the Record of Appeal, the trial judge states: “The last line of the publication stated that the plaintiff is no longer authorized to transact business on behalf of the bank. This information is a fact but it sends other connotation, and since the Defendant bank has stated that the Plaintiff did not commit any crime whilst at work, one will question on what basis this publication was made”. With all due respect to the learned trial judge, having stated that the “information is a fact”, she ought to have known that a publication of the truth cannot be defamatory. In any case, the Respondent could not adduce any credible evidence to establish the malice he is required to prove. The resort to the time of publication and the fact that the Appellant had no laid down policy regarding employees who had resigned does not in any way constitute malice. As I have stated earlier on, the fact that the defendant was inspired by malice is irrelevant if the statement is true. The truth of the statement that the Appellant published, was not challenged by the Respondent. As a matter of fact, the Respondent himself stated that he resigned from Appellant bank. The question is, having resigned, did the Respondent have the authorization of the Appellant to represent its interest? Certainly not. To my mind, this is the plain truth. In whatever way the publication made by the Appellant is looked at, though unpleasant to the cause of the Respondent, in so far as it is the truth that was published, one cannot use time and circumstances to defeat the truth. Publication of the truth can never be defamatory and ‘‘the truth’’ will always be a complete defence to an action in libel or slander. In my considered opinion, the publication seeks to protect the business interest of the Appellant by advising the people not to transact business or enter into contract with the Respondent on behalf of the Appellant Bank; the said publication is not defamatory of the Respondent, and I so hold. The appeal on these grounds, that is, grounds (iv) and (v) succeeds. This leads to grounds (i) (ii) and (iii). These are that: i) The learned trial judge erred in law in awarding Gh¢100,000.00 general damages against the Defendant for defamation. ii) The learned judge erred in law in awarding exemplary damages for libel in the sum of Gh¢500,000.00 in favour of the Plaintiff against the Defendant. (iii) That the General damages of Gh¢100,000.00 and exemplary damages of Gh¢500,000.00 awarded to the Plaintiff against the Defendant are excessive and unreasonable. As a corollary from the above discussion; and having held that the appeal succeeds on the reliefs (iv) and (v), I am of the opinion that, the award of damages, be it general damages or exemplary damages must automatically be set aside. Damages is intended to compensate the person whose reputation had been disparaged or damaged by the defamatory matter. Where it is found that, the said statement is not defamatory of the claimant, he should not be entitled to any compensation. In the circumstance, the award of general damages of Gh¢100,000.00 and exemplary damages of Gh¢500,000.00, granted to the Respondent by the trial Judge, be and is hereby set aside. The grounds (i) and (ii) of the notice of appeal therefore succeed. The ground (iii) becomes moot. I will allow the appeal for the foregoing reasons in its entirety. Turning to the notice by the Respondent of intention to contend that the decision of the court below be varied, I hereby set out the reliefs and grounds as follows: (a) Reversing part of the judgment that refused to grant the following reliefs to the Plaintiff: reliefs (i), (ii), (iii), (v), (vi) and (vii) and granting those reliefs to the Plaintiff; (b) Further or in the alternative an order increasing the levels of the awards made against the Defendant by the trial judge. (c) Any other order the Court may deem fit to make. The grounds relied on by the Respondent for the variation are as follows: (i) The learned trial judge erred in holding that the plaintiff was not head-hunted. (ii) The learned trial judge erred in holding that the Defendant did not breach a collateral contract between the parties. (iii) The learned trial judge erred in holding that parole-evidence rule was applicable in the circumstances of the parties. (iv) The learned trial judge erred when she failed to award general damages for malicious publication. (v) The learned trial judge erred in not rejecting the entire or portions of the testimony of the witness of the Defendant/Appellant. (vi) The learned trial judge erred in not awarding higher levels of damages against Defendant/Appellant. It is to be noted that, having upheld the grounds (iv) and (v) of the Appellant’s grounds of appeal, the relief (b) and the corresponding grounds (iv) and (vi) of the Respondent’s notice of intention to contend that the decision of the Court below be varied, are now effete, in other words, otiose. Counsel for the Respondent, in arguing the first ground faulted the trial judge’s finding at page 120 to 121 Vol. 2 of Record of Appeal where she stated thus: “In the case of the Plaintiff, management did not particularly advertise the vacancy, but the head of department of the treasury, PW1, approached the Plaintiff and suggested to management to employ the plaintiff because of his working experience with the plaintiff in Stanbic Ghana. In recommending the plaintiff to the defendant’s bank, I would not conclude that the plaintiff was head-hunted”. Counsel for Respondent stated that the PW2 was the person who was wrongly referred to as PW1 in the judgment. Be it as it may, it is the contention of Counsel for the Respondent that PW2 in convincing the Respondent to leave his previous work to join the Appellant Bank, acted as the agent of the Appellant and for that matter the Respondent was head- hunted. I find this analysis as very dis-ingenious. The fact is, at the time PW2 was trying to convince the Respondent to leave his previous work to join the Appellant Bank, the Appellant had not even advertised any vacancy and did not even know of the existence of Respondent and his qualities as trumpeted by Respondent. The evidence on record, rather suggest that it was PW2 who, having worked with the Respondent, tried very hard to persuade the Respondent to join him at Appellant bank. This is what PW2 stated in his evidence at the court below: page 252- 253A of ROA; Q. Do you know how the plt [sic] was recruited at ADB. A. Yes. And I will like to give a background to it. Sometime in Sep 2004, the plt [sic] Mr Osumanu Ali worked under my direct supervision. He as a national service person in the treasury department of Stanbic Bank, Ghana. And the plt [sic] demonstrated huge potential in treasury management to the extent that based on my recommendation to the then treasurer of Stanbic bank Mr Kwasi Tumi; that the rotation that was originally designed for national service persons had to be halted with regards to the plt [sic]. Further, after the national service ended, a further recommendation was made to engage the plt [sic] in the treasury department of Stanbi Bank Ghana which role he played exceedingly well. Early 2005, the plt [sic] resigned from Stanbic Bank Ghana upon the engagement of him [sic] by Cal Bank Ltd. [W]here he worked as the head of the forex trading unit or department. The reports and market sentiments received on the performance of the plt [sic] was very positive in his role at the said bank. Sometime in January 2010, when I had an offer and appointment as the treasurer of the def bank ADB ltd I had discussions with the MD of the def bank with regards to the role and the strategic intent underlying my role and treasury in general. I needed to concentrate on strategic initiatives to creat synergy among the various functions within the bank. This required that to be able to achieve the performance that was expected of treasury, experience hands needed to be engaged………. On this basis I mentioned Mr Osumanu Ali, the plt [sic] to the MD Mr Stephen Kpordzi that the plt [sic] was capable of working in that regard……I indicated further that I had worked with the plaintiff and based on performance and skills he gathered through coaching by my humble self and others within Stanbic Ghana and the standard bank group in general, he had progressed so quickly and had been able to manage a forex dealing unit or department at Cal Bank…….. In the course of the meeting, the meeting amongst the three of us, I introduced the plaintiff to the MD who after the meeting and within the meeting expressed positive view on the plaintiff with the regards to the role we intended…’’ Then at page 124 of ROA, the Respondent also testified thus; ‘‘Q. While you were with Cal Bank around the beginning of 1010 [sic] what happened. A. While I was working at the Cal Bank the treasure [sic] by name Mr Baah Dankwa who happen to be my senior far back at Cal bank was made treasurer for the defendant bank so this Mr Baah Dankwa approach me and was impress by my previous job so he needed me to join him at Agricultural Development Bank and upon several meetings to discuss his proposal to join him at Agricultural Development Bank.’’ The evidence of both PW2 and the Respondent shows that, the Respondent had become the protégé of PW2. The evidence of the two, had no semblance of a head hunt but rather, PW2 was fond of promoting the Respondent. It is my view that, the trial judge got it right when she stated that: ‘‘In the case of the Plaintiff, management did not particularly advertise the vacancy, but the head of department of the treasury, PW1, approached the Plaintiff and suggested to management to employ the plaintiff because of his working experience with the plaintiff in Stanbic Ghana. In recommending the plaintiff to the defendant’s bank [sic], I would not conclude that the plaintiff was head-hunted.’’ As I stated earlier on, this was a case of PW2 promoting the Respondent but not head hunting. The decision of the trial judge in respect to this issue cannot be faulted. Respondent’s Counsel further argued that the trial judge erred in holding that the Defendant did not breach a collateral contract between the parties. At page 120 of the Record of Appeal Vol. 2, this is what the trial judge stated: “The evidence indicated that the MD alone could not have taken that decision to pay remuneration higher than that which pertains to the level offered him in his appointment letter, however, the Plaintiff tendered two appointment letters of same content: a first one which he refused to sign and a second one he signed after the oral promise by the MD of the Defendant Bank. It is the evidence of the Plaintiff that he only signed the second appointment letter based on the promise of an increment in remuneration. If that promise was so important for the Plaintiff he would have insisted that it should be incorporated in his written terms of employment. The appointment letter of the Plaintiff captured the terms of his employment and other oral terms could not have been seriously considered by the employer so the decision of the Plaintiff to accept the employment based on that oral promise was at his own risk. The Plaintiff’s supervisor Mr. Baah-Danquah and the MD could not have increased the remuneration of the Plaintiff without the final decision of management, and that fact should have been known to the Plaintiff. It was clear from the evidence that the parties did not reach any agreement on the terms of engagement outside those stated in the appointment letter. The Plaintiff therefore signed his acceptance letter, accepted the appointment and commenced working under the terms of Exhibit H1.” It is noted that the parole evidence rule or the rule on extrinsic evidence, in simple terms, is that, a party to a written document is not permitted to adduce evidence to vary or contradict the terms of the document. Lord Morris in the Privy Council case of Bank of Australasia v Palmer (1897) AC 540 at page 455 stated: “That parole testimony cannot be received to contradict, vary, add to or subtract from the terms of a written contract or the terms in which the parties have deliberately agreed to record any part of their contract.” This dictum of Lord Moris was approved in the case of Mouganie v Yemoh [1977] 1 GLR 163, CA in which the Court held that: “The rule that oral evidence could be accepted to contradict a written document was usually stated in connection with contracts but it was equally applicable to documents such as judicial records, transactions required by law to be in writing or other documents constituting a valid and effective transaction between parties.” Where a Court is faced with documentary evidence and oral or parole evidence, the documentary evidence should prevail over the oral or parole evidence. This court, in the case of Duah v Yorkwa [1993-94] GLR 217, held that: “Whenever there was a written document and oral evidence in respect of a transaction, the Court would consider both the oral and documentary evidence and often lean favorably towards the documentary evidence, especially where the documentary evidence was found to be authentic and the oral evidence conflicting.” It is further to be noted that, if the oral evidence is admitted (as in the instant case) and it turns out to be conflicting to the documentary evidence, it has been held that the oral evidence is inadmissible: see Peters v Peters [1963] 2 GLR 182. The parole evidence rule has been codified in the Evidence Act, 1975 (NRCD 323), section 177 (1) as follows: “177. (1) Except as otherwise provided by the rules of equity, terms set forth in writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to such terms as are included in the writing may not be contradicted by evidence of any prior declaration of intention, or any prior agreement or of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented - by evidence of consistent additional terms unless the Court finds the writing to have been intended also as a complete and exclusive statement of the terms of the intention or agreement, provided that a will and a registered writing conveying immovable property shall be deemed to be complete and exclusive statement of the terms of the intention or agreement; and by a course of dealing or usage of trade or by course of performance.” Section 177 (1) of NRCD 323, therefore, is to the effect that, subject to rules of equity, the document that embodies the terms constituting the intentions of the parties is binding on them as concluded and that extrinsic or parole evidence will not be admitted to vary or contradict those terms. The parole evidence rule is further given enforcement in Section 25(1) of the Evidence Act, 1975 (NRCD 323) as follows: “25(1) Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument, or their successors in interest”. This is a conclusive presumption which cannot be rebutted by any form of evidence except; where after an agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing either altogether to waive, dissolve, or annul the former agreement or in any manner to add to or subtract from , or vary or qualify the terms of it and thus to make a new contract which is to be proved, partly by the written agreement and partly by the subsequent verbal terms engrafted upon what will thus be left of the written agreement: see Goss v Nugent (1833) 2 LJKB 127. Or the exception provided by section 177 of the Evidence ACT, 1975, or a trade usage or course of dealing as illustrated by Coleridge J in Brown v Byrne (1854) 23 LJQB 313, thus: ‘‘Mercantile contracts are very commonly framed in a language perculiar to merchants; the intention of the parties, though perfectly well known to themselves, would be defeated if this language were to be strictly construed according to the ordinary import of the world at large; evidence therefore of mercantile custom and usage is admitted in order to expound it and arrive at its true meaning.’’ Or the application of the rules of equity; see section 177 of the Evidence Act, 1975. In the instant appeal, the records show that the matters which the Respondent testified on as remuneration that were not captured in the terms of employment were matters that, were discussed between Mr. Baah-Danquah and the MD on one part and the Respondent of the other part. These discussions took place before the Respondent signed or executed the acceptance letter, indicating his acceptance of employment on the terms contained in the contract of employment. Nowhere in the evidence on record is it stated that, the Respondent was coerced or threatened to accept and sign the document of employment. In refusing the Respondent’s case in respect of collateral contract, the trial judge made an extensive evaluation of the evidence adduced and the exhibits tendered and held that, “the parties did not reach any agreement on the terms of engagement outside those stated in the appointment letter. The Plaintiff therefore signed the acceptance letter, accepted the appointment and commenced working under the terms of Exhibit H1.” Taking the Respondent on his own evidence, he declined to sign Exhibit H because he wanted the other remuneration to be included. Having signed Exhibit H1, whose content is the same as Exhibit H, it does not lie in the mouth of the Respondent to say that, other terms should be imported into the agreement though parties have not agreed to those terms. If there was an agreement between the parties before the execution of Exhibit H1, the evidence does not support it. One interesting question is, why should the Respondent work for the Appellant over a period of two years and never took action until a disclaimer was published about him after his resignation? If the disclaimer had not been published 7 months after he resigned, the Respondent had not found it necessary to sue the Appellant in respect of any such collateral contract. In my judgment, the trial judge’s findings and conclusions cannot be faulted. On the ground (v) of the notice of intention to contend that the decision of the Court below be varied, which states: “The learned trial judge erred in not rejecting the entire or portions of the testimony of the witness of the Defendant/Appellant.” Respondent’s Counsel argued that the said witness of the Appellant was not in the employment of the Appellant when the Respondent was employed by the Appellant. According to Counsel, the said witness did not testify as an employee of the Defendant but he was subpoenaed ostensibly to testify on matters he had personal knowledge of when he was an employee of the Appellant. Counsel refers to Section 60(1) of the Evidence Act, 1975 (NRCD 323) and submits that a witness must have a personal knowledge over matters he will testify on. According to Counsel for Respondent, the said witness was incompetent to testify on the matters relating to the appointment of the Respondent because he had no personal knowledge. I find these submissions made by Counsel for Respondent quite interesting. In the first place, Counsel for the Respondent has not pointed to this Court the specific evidence of the Appellant’s witness that the trial court ought not to have admitted. Second, Counsel for Respondent, it appears to me, has not considered the effect of Section 6(1) of the Evidence Act, 1975 (NRCD 323) which emphasizes that, an objection should be raised timeously and specifically. In Aryeh and Kakpo v Ayaa Iddrisu [2010] SCGLR 891, the apex Court stated thus: “If a party looked on and allowed the inadmissible evidence to pass without objecting, it would form part of the Court record and the trial judge would be entitled to consider it in evaluating the evidence on record for what it is worth”. An examination of the Record of Appeal does not show that the Respondent raised any objection to any witness of the Appellant because the said witness was not competent to testify in the matter. Again, Counsel has also failed to pinpoint the exact testimony of the said witness which in the view of Counsel, ought not to have been admitted by the trial Court. There is no indication on the Record of Appeal that the Respondent objected to the calling of the said witness of Appellant on the grounds of incompetency. I find no merit in this ground being canvassed by the Respondent’s Counsel. Same is accordingly rejected as being frivolous and an unwarranted attack on the trial judge’s decision. For these reasons I find no merit in the contention for the variation of the judgment of the trial court. In conclusion, having examined the evidence on record and the submissions made by both Counsel, the findings and conclusions of the trial Court that, the statement published in Exhibits Y and Y1 by the Appellant, was defamatory and the award of general and exemplary damages against the Appellant, were done in error. The statement which the Appellant published was a qualified privilege and also the truth. No malice was established. There was also no basis for the award of the General and Exemplary damages. Consequently, the appeal is allowed in its entirety and the judgment of the trial court against the Appellant in respect of the reliefs (iii), (iv), (v), (ix) and (x) of the Respondent’s claim are accordingly set aside. The decision of the trial judge relating to the reliefs (i), (ii), (iii), (vi), and (vii) of the writ of summons which is the subject of the notice by Respondent of intention to contend that the decision of the Court below be varied, is hereby affirmed. There will be no variation of the decision of the trial judge. The notice of intention by Respondent to contend that the decision of the Court below be varied has no merit and accordingly dismissed. sgd GEORGE K. KOOMSON (JUSTICE OF APPEAL) COUNSEL ALI GOMDA SAMAD FOR PLAINTIFF/RESPONDENT AKWELEY GABOR FOR THE DEFENDANT/APPELLANT 65