Agyeiwaa Vrs Kwabena [2022] GHADC 213 (20 October 2022)

IN THE DISTRICT COURT KIBI, EASTERN REGION, HELD ON THURSDAY 20TH OCTOBER 2022, BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING AS A MAGISTRATE SUIT NUMBER: A5/05/22 NANA YAA AGYEIWAA PLAINTIFF VRS KWABENA (OPPONGAS) DEFENDANT JUDGMENT Plaintiff herein, on the 7th April, 2022, instituted this defamation action against the defendant in this case, claiming as follows; “a. Plaintiff’s claim from the defendant is for general damages of five thousand Ghana Cedis (5,000.00), for the defamation of her character on the 12th December 2021, between 9am and 10am without the least provocation before a crowd the defendant did say to wit, ‘Kronfo a wawia me motor, wo ye opoo bonii, wo ye kronfo a wawia borode’, literally in English means; ‘You are a thief who has stolen my motor bike, a fraudster, a thief, you have stolen plantain.’ b. Costs.” The facts of the case as set out in plaintiff’s statement of claim are that, plaintiff and defendant live in the same house, number; D28, Asiakwa. On the 12th December, 2021, defendant without any provocation published the defamatory words stated above about her. These words have affected plaintiff’s work as a priestess, negatively and rendered her a laughing stock in the community. Defendant who vehemently denies these facts, filed his statement on defence on the 9th May 2022, alleging that he only complained of his missing motorbike but never accused plaintiff of stealing same. The standard of proof in civil cases as in the instant case is proof on the preponderance or balance of probabilities as set out in the Evidence Act 1975 (NRCD) section 11 (4). Again, in the case of Zabrama V Segbedzi [1991] 221, CA, the court held that a person who makes an averment or assertion which is denied by his opponent is under the burden to establish that his averment or assertion is true. And he does not discharge the burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely 2 be inferred. In furtherance, the civil proof was explained by the Supreme Court in the case of Bonsu V Kusi [2010] 16 GMJ 20 SC @ page 70, as the conviction that evidence of certain facts carries in the mind of the judge or jury. It is not pre – ordained and has no objective existence, capable of discovery either by logic or analysis. What suffices in each case vary depending on the nature of the case and the person to whom the evidence is addressed. Hence, in the instant case, it is pertinent for plaintiff to lead credible and admissible evidence establishing that defendant indeed spoke or published the words she alleges in the light of his stout denial. It should be noted here that, this being an action for slander, the setting under which the alleged defamatory matter was published is very crucial. In the case of, Bonsu V Forson [1964] GLR 45, the court after referring to the Halsbury's Laws of England (3rd ed.), Vol. 24, p. 107, para. 198, and Lord Dunedin’s principle stated in, Adam v. Ward [1917] AC 309, said inter alia that, emphasis should be laid on the words "in the circumstances of the particular case" in Halsbury’s quotation, “because words prima facie innocent, may, when spoken under certain circumstances, or in a certain setting, be defamatory; on the other hand, words which in their ordinary and natural meaning are defamatory may, nevertheless, when uttered in certain circumstances, not be understood by people who bear them to be defamatory of anybody. Again, in the case of slander, words which prima facie impute a crime or other defamatory matters will not be actionable per se if it is clear from the circumstances in which they were uttered that they could only be mere general vituperation or vulgar abuse, which could be so understood by hearers.” In the present case also, the words complained of by the plaintiff, ‘you are a thief and a fraudster', impute crime and according to plaintiff, they were published by defendant without any provocation whatsoever. Meaning, the words were spoken in a calm atmosphere. That being the case, those words, if indeed spoken by the defendant, are actionable per se. This is because, in the circumstances of this case, there were no heated exchanges between the parties in an incensed atmosphere, as such, the words cannot be considered as words of heat and vulgar abuse which are not actionable. 3 Both parties testified and also called a witness each at the trail. Upon the pleadings of the parties and their evidence; the only issue joined is: Whether or not the defendant spoke and published the words complained of. According to plaintiff’s testimony on the day of the incident, between 9am and 10am, she saw defendant depositing some sand on a pipe she uses as an outlet for her waste water. This deposit impeded the free flow of the waste water so she confronted defendant about it. Defendant said the waste water would sink into the ground. It was in the process of their interaction that defendant’s girlfriend and DW1 in this case came out of defendant’s room and accused her of stealing GHC 50.00 from their room. Defendant then joined in and rained down insults in the words; ‘you are a thief; you have stolen my motorbike. You are a fraudster who uses her position as a priestess to defraud people.’ This evidence is supported to the hilt by plaintiff’s witness, (PW1), and her linguist as well. Per PW1’S testimony this incident happened in the house of the parties when they (plaintiff and himself) were preparing for work that morning. It is defendant’s defence that, he never published any of the defamatory statement plaintiff is alleging. On the day and time of the incident, he was using the sand to cover the algae which had developed on the compound of their house because of the discharge of the waste water from plaintiff’s bathroom. Plaintiff confronted him as to whether he intended to block her waste water outlet, to which he answered in the negative. She then confronted him further, for circulating rumours that, she has stolen his motorbike to which he denied. Plaintiff thereafter, said that even if she has taken the motorbike what could defendant do since when he damaged the windscreen of her vehicle, he did not pay for same. Once again, defendant’s testimony was materially supported by his witness. Defendant’s evidence that plaintiff herself said she stole the motorbike was not challenged by plaintiff in anyway. In actual fact, plaintiff in cross – examining the defendant appeared to have admitted this assertion. This is how plaintiff concluded her cross – examination. Q. You claim I have stolen your motorbike so, where you saw me taking the said bike to, say it before the court so that I can retrieve it for you. A. I never said that; you said you have stolen it because I failed to pay for your windscreen I damaged. Plaintiff – No further question. 4 Similarly, there appears to be some controversy surrounding the exact words defendant is alleged to have spoken. According to plaintiff’s particulars of claim endorsed on her writ and referred to in her statement of claim the alleged words are; ‘Kronfo a wawia me motor, wo ye opoo bonii, wo ye kronfo a wawia borode’, literally in English means; ‘You are a thief who has stolen my motor bike, a fraudster, a thief, you have stolen plantain. In plaintiff’s evidence before this court however, these words changed to, ‘You are a thief, you have stolen my motorbike. You are a fraudster you have used your priesthood to defraud people.’ Thus, in plaintiff’s testimony, she was not branded as a plantain thief. What is intriguing about this fact again is that, though PW1 testified in his evidence –in – chief that defendant called plaintiff a plantain thief; this is what he said in cross – examination; Q. When the incident happened at the compound of the house where were you? A. I was at the compound. Q. And you heard me saying that plaintiff has stolen my plantain? A. Yes, but you didn’t say that plaintiff has stolen your plantain, but that all the theft of plantain and other items that occur in the community, you hear about them. Thus, per PW1’S answer, defendant never alluded the stealing of the plantain to the plaintiff herein, thereby partially corroborating defendant’s story of complete denial of the whole publication. Could it then be that defendant indeed never published those words after all? What exactly did defendant say on that occasion? Plaintiff and her only linguist witness who claims to be present during the alleged publication fail to agree on this. I therefore prefer defendant’s story to that of the plaintiff. It is my considered view in the light of the above that, the onus which lay on the plaintiff to prove that the words were spoken by the defendant has not been discharged. In addition to the above, it is plaintiff’s testimony that the defamatory matter was published in public and this has negatively affected her work as a fetish priestess and subjected her to public ridicule, hence her claim for the GHC 5,000. 00, general damages. In the case of, Amoako V Takoradi Timber Ltd. [1982 – 83] GLR 69, the defendants wrote to the Principal Technical Officer (PTO) of the Forestry Department, Takoradi, requesting that the plaintiff should not be granted authority for shipment of the logs until investigations had been made to find out the source of the logs because they had reason to believe that the logs came from 5 one JBS’S and not the plaintiff's concession. The plaintiff therefore sued defendants for defamation. The court held that; in an action for damages for defamation it was not sufficient for the plaintiff to say that in his self-estimation the words alleged conveyed some obnoxious meaning to him. He must go further to prove that the obnoxious meaning was conveyed to persons other than himself and the words had lowered him in the estimation of those persons; in other words, no civil action for libel or slander could be maintained unless the plaintiff had established that the words complained of had been published to persons other than himself and those persons had understood the words in the defamatory sense attributed to them by the plaintiff. In the instant case, the PTO alone could not constitute the public or a section of the public. In the absence of evidence that the matter was published to other timbermen or members of the public or a section of it, it could not be said that the words exposed the plaintiff to public hatred, ridicule or contempt or in any way injured him in his trade. Applying this to the instant case, since the only witness called by plaintiff was her linguist, he alone cannot constitute the public or a section of the public or the community, to use plaintiff’s exact word. In the absence of evidence that the matter was published to other fetish priest or members of the public or a section of it, it cannot be said that the words exposed the plaintiff to public ridicule or in any way injured her in her trade. For all the foregoing reasons, and on the balance of probabilities, plaintiff herein has failed to convince the court that, defendant indeed published the defamatory matter in question and that same has exposed her to public ridicule and injured her trade for which she should be awarded damages. Plaintiff’s case fails accordingly. I sum, I enter judgment in defendant’s favour. There will however, be no order as to costs so as not to further widen the rift the present action has already created between the parties who are related by reason of plaintiff’s marriage to defendant’s elder brother. SGD H/W MRS JULIET OSEI – DUEDU ESQ DISTRICT MAGISTRATE 20/10/2022