Hodogbe Vrs Nframa [2022] GHADC 254 (28 November 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT NEW ABIREM IN THE EASTERN REGION, ON MONDAY 28TH DAY OF NOVEMBER, 2022. BEFORE H/W BENJAMIN B. ATTABRA. TIME; 09: 00AM SUIT NO. A5/16/22 VICTORIA AMA HODOGBE VRS. KWABENA NFRAMA Plaintiff …………………… Present Defendant …………………. Present By Court; JUDGMENT Plaintiff sued the defendant for damages of a sum of GH₵30.000.00 for spreading malicious and defamatory information about plaintiff to wit: Plaintiff is the cause of the death of her daughter’s father Attah Akande as well as her legitimate husband Kofi Appiah. And an order of the court to compel the defendant to desist from further spreading the said malicious and defamatory information about her. The case for the plaintiff was that she is a widow resident at Akyem Ntronang whilst the defendant is a pensioner (former employee of Newmont) also resident of the same community. Plaintiff contended about 22 years ago she was in a relationship with one Attah Akande, their relationship resulted in the birth of their daughter Bridget Tutuwaa. But they did not tie nuptial knot where the said relationship was brought to an abrupt end. Plaintiff asserts following the death of Attah Akande a year ago, defendant went to the relatives never to give portion of the deceased’s property to plaintiff’s daughter because she is the cause of Attah Akande’s death. Defendant further threatened to kill her if she should pursue the matter in court. Plaintiff further stated unfortunately, her husband also died on the 23rd day of November, 2021. The following day, defendant went to a relative of the deceased husband that she is the one who cursed their deceased relative to death. In view of that the relatives suspended the supposed one-week celebration until they were convinced by the outcome from a spiritualist they consulted that she was does not have a hand in the death of her husband. Plaintiff intimates one of the relatives of the deceased husband hinted her about the effect of the defendant’s conduct hence she summoned the defendant before the chief and elders of Ntronang but defendant failed to attend the chief’s call. She subsequently summoned defendant before Abiremhene yet the defendant refused to attend, hence the suit. The defense of the defendant was that in the year 2017, the plaintiff’s late concubine called Attah Akande joined him at Newmont Golden Ridge as a co-worker. Since he was superior to him the deceased, he took him as his junior brother. One day Attah Akande confided in him that he has a daughter with the plaintiff at Akyem Ntronang. Then and there, Atta Akande called the plaintiff on phone and introduced him to her as his superior. Since then plaintiff took him as her father and played the role as a conduit between plaintiff and Attah Akande. Thereafter, whatever the plaintiff required of Attah Akande he relayed that to him and vice versa. Defendant argued one day the deceased sent him to the defendant for her daughter’s terminal report but the plaintiff did not give it to him. When he reported the conduct of the plaintiff to the deceased, the deceased told him plaintiff called to inform him he is not the father of the child Akua (Bridget) so he was worried over it. Defendant asserts upon hearing this he advised the deceased not to bother but to move on in life. Following the death of Attah Akande, he was sitting with one Joe a brother to Attah Akande and the said daughter passed by and Joe remarked “this is the biological daughter of the deceased” Although their brother was dead, they will accept the child. Defendant asserts there was a time officers of Newmont Ghana in their bid reach the dependants of the deceased for his benefits he linked the officials to the plaintiff and the daughter. And that he knows nothing about the death of Attah Akande. Regarding the death of Kofi Appiah, defendant asserts he was going to the house to commiserate with the family of the deceased when Kofi Kena called to speak with one Simon which he did. He was not privy to whatever deliberation they had on the phone. But what he can add is that Kofi Kena spoke to these family members; Simon, Kwabena Appiah,Kofi Djumah and Nortey. Issues to be determined are; whether or not plaintiff was able to prove on preponderance of probabilities that defendant did spread false allegation against her with the intention of denying her daughter part of the estate of Attah Akande? Whether or not the plaintiff was able to prove on preponderance of probabilities that defendant dented her image before the good people of Nkwarteng that she is responsible of the death of her husband? In the course of the trial, plaintiff testified and called her sole witness Abena Ataa Akande in support of her stance. Defendant upon opening his defense also called two witnesses Kwabena Appiah and Kena K. Da-Costa Aggrey. The court found as a fact that defendant had prior engagements with the plaintiff not less than twenty times before the death of Atta Akandey. Again, Attah Akandey requested for the terminal report from the plaintiff without success an assertion that was not rebutted. The court wonders why the plaintiff refused to release the daughter’s report to the deceased and did not also assign any reason for her refusal. Regarding the assertion that Plaintiff alluded to the fact that defendant discussed her at a Tuo Zaafi base however during the hearing the plaintiff did not produce evidence or substantiate that claim. Whether or not the plaintiff’s assertion that the defendant told Attaa Akandey not to give part of deceased brother’s estate to her daughter the reason being that she disturbed the brother to die, That the defendant pretended he was speaking on phone and walked passed his store and said “wodi nii wo eku wokun” and because of that she has stopped operating her store. THE LAW OF PROOF IN CIVIL PROCEEDINGS The suit before this Court is a civil one. The Plaintiff’s contention is that he has been defamed which the Defendant disputed and raised the defences under the law of defamation. To prove a case in civil proceedings the Plaintiff who summoned the Defendant to Court has a burden to lead credible and admissible evidence to establish every issue raised by him. In the case of ACKAH vs PERGAH TRANSPORT LTD & OTHERS (2010) SCGLR 728 at 736 Adinyira JSC stated; “ It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. Section 10 (1) (2) and 11 (1) (4) of the Evidence Act, 1975 NRCD 323.” See also the case of Adwubeng vs Domfeh (1996-97) SCGLR 660. There is also the Standard of Proof and in civil matters same is on the preponderance of the probabilities which is defined at Section 12 (1) of the Evidence Act, 1975 NRCD 323 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. In his book Essentials of the Ghana Law of Evidence 2014 Edition, His Lordship S. A. Brobbey reproduced the position on preponderance of probabilities contained in the Bench Book for U. S. District Court Judges published by the Federal Judicial Centre (March 2000 Ed) as follows; “ The plaintiff has the burden of proving his/her case by what is called preponderance of the evidence which considered in the light of all that facts leads you to believe that what the Plaintiff claims is more likely to be true than not. To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his ( or her) side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.” The burden of proof does not lie on the plaintiff alone. Where the defendant raises an issue in his or her pleadings the defendant carries the burden to establish same. What this means is that the issues raised in the defence would have to be proved by the Defendant. See Section 14 of the Evidence Act,1975 NRCD 323 which states; “ Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” So in short the burden is not static but shifted from party to party depending on what is to be proved at every point in time in the proceedings. See the cases of In RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & Others vs KOTEY & OTHERS (2003-2004) SCGLR 420 and TOTAL GHANA LIMITED vs THOMPSON (2011) SCGLR 458. ELEMENTS OF DEFAMATION, THE LAW AND ITS PROOF. The Court now looks at the law on what constitutes defamation. In the case of OWUSU- DOMENA vs AMOAH (2015-2016) 1 SCGLR 790 cited by learned Counsel for both parties the Supreme Court quoted the definition of defamation as contained in the Halsbury’s Laws of England, 4th Edition Volume 28 paragraph 10 as follows; “ 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 disparage him in his office, profession, calling, trade or business.” In going further to establish what then should be proved for a claim of defamation the Supreme Court stated; “There are two steps involved in establishing that the publication was defamatory; first, whether the publication was capable of a defamatory meaning. If a defamatory meaning is found to exist the plaintiff will have established his claim. This is what the authors Winfield and Jolowicz on Tort 18th Edition at page 584 paragraph 12-15 described as the ‘natural and ordinary meaning’ of the words published. The Learned Authors cited the case of JONES vs SKELTON (1963) 1 WLR 1362 at p. 1370-1371, where Lord Morris said 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.” See also the case of ABU vs BPI BANK (2014) 68 GMJ 115 where the Court of Appeal also made the following pronouncement; “ ..... Words are capable of being defamatory of a plaintiff if they tend to hold him up to contempt, scorn or ridicule or if they turned to lower him in the estimation of right thinking members of society generally, or if they caused him to be shunned or avoided.” The authorities abound both in Foreign and Ghanaian case law. It must be noted that there is no statutory definition of defamation and the courts have over the years tried and succeeded in defining defamation. In the case of YOUSSOUPOFF vs M. G. M. PICTURES LTD (1934) 50 TLR 581 defamation was defined as: “If a 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.” The words claimed to be defamatory must be interpreted in their normal or natural meaning and so in the case of PROFESSOR E. O. ADEKOLU JOHN vs UNIVERSITY FOR DEVELOPMENT STUDIES & ANOTHER Civil Appeal No. J4 /59/2013 dated 19th March, 2014 the Supreme Court defined what constitute defamatory statements and gave three other elements of defamation as; “A second element in the law of defamation under the common law is the interpretation of the words whether they are actually defamatory? The words must be interpreted in their fair and natural meaning as reasonable, ordinary people will understand unless an innuendo is pleaded. In the meanings ordinarily ascribed to the words used, it is clear they are defamatory especially as no innuendos have been used. To be defamatory, there must be something in the defamatory statement referable to the plaintiff.... Finally, to constitute defamatory material, the words complained of must have been published.” In summary, for the plaintiff to be successful in a defamatory suit he must plead and lead credible and admissible evidence to establish the following; 1. 2. 3. That it was the defendant who made the publication; That the publication concerned the plaintiff. That the publication was capable of a defamatory meaning in its natural and ordinary sense; In the alternative to the third element that from the facts and or circumstances surrounding the publication, it was defamatory of the plaintiff. In the Court of Appeal case of BENJAMIN DUFFFOUR vs BANK OF GHANA, Civil Appeal No. H1/67/2018 dated 30th May,2019 reported in DLCA 7756 cited by learned Counsel for the Defendant, Her Ladyship Ackah-Yensu JA stated the elements that have to be proved in defamation cases by a plaintiff in order to be successful at the trial are as follows; “In order to prove defamation, five key elements must be prevalent with no exception: 1. A statement of fact To be considered defamatory, the statement must concern a matter of fact, not simply an opinion. 2. A published statement To be published, the statement need not necessarily be published in print, such as a newspaper or book. For the purposes of defamation, the statement is considered published if a third party sees, reads or hears it. 3. The statement caused injury An injury is considered to have occurred if the plaintiff's reputation was harmed by the statement. 4. The statement must be false It is not enough to show that a published statement simply does injury to the Plaintiff; rather, for it to be determined to be “defamatory”, it must also be shown that the statement is false. 5. The statement is not privileged.” What the above pronouncement meant is that all the elements without an exception will have to be proved by the Plaintiff. This may be difficult in certain situations but same is not insurmountable. The Plaintiff is in Court because he claimed he is in a position to prove all the elements of defamation against the Defendant. The Defendant’s position is that based on the evidence on record the Plaintiff failed or could not establish all the elements of defamation as laid down by the legal authorities. The Defendant as already stated pleaded the defence of fair comment and justification. EVIDENCE OF THE PARTIES WITNESSES Abena Ataa Akendey testified to the effect that Victoria has a daughter with his twin brother about 22 years ago. On the 30th June 2021, her twin brother died and the family organized the one week celebration two weeks following the passing of her brother. On the said day, defendant sent her brother by name Joe to call her. Defendant enquired from her whether she knew him. And that her deceased brother’s excessive intake of alcohol was as a result of what plaintiff told him. That plaintiff made him aware that he was not the father of her daughter but the father of her daughter is at Kade. She made the defendant understand that she is even confused. But she said it was her brother who gave birth to the girl and she left. During the cross examination of the PW1 Q= I want to let you understand that Plaintiff says I told you she disturbed your brother to die? A= it was as a result of the excess alcohol intake by my brother following the assertion that he was not the father of the girl (plaintiff’s daughter). Testimony of Kwabena Appiah the first witness for the defendant (DW1). “I live at Ntronang. I am a farmer. I know the parties. My younger brother died and the son also died. Family, friends and sympathizers met at their house to plan for the one week celebration. Then and there his brother called him that he was needed outside. Defendant handed over a phone to him that somebody would like to speak with him. As I spoke with the person I got to know his name. There was one Kinnah. He said we should not celebrate the one week but should consult the spirit first to ascertain the cause of my brother’s death before the celebration because it was a curse “Duabo”. So I came to inform the family and the people gathered there and dispersed the gathering. I did not know that my brother’s son’s concubine is the plaintiff. But I told everybody present that I was going for consultation. And that my deceased brother’s wife and the plaintiff could do likewise. The family gave him two people to accompany him to the spiritualist. Upon their return he told the gathering that it was a natural death. He/I told the plaintiff and my in-law that if they are not satisfied about the outcome they can also go and consult. Both of them never came to me again. After the funeral, I learnt Plaintiff had sued the defendant Abirem Chief’s palace, so I went to Nana Adonteng and met at the palace. That the defendant is alleging that plaintiff killed the concubine. I told the gathering I have not informed anybody about a negative outcome. I was to attempt settlement. They refused. Not knowing the two had another issue. I told the chief I cannot combine the two issues. Plaintiff even insulted and returned the money to me. And I took it back. Plaintiff is still in my brother’s family house”. Testimony of the Second Witness for the Defendant (DW2). My name is Kinnah K. Da Costa. I live at Akyem kyem Yaayaaso. I work at Newmont. I know the plaintiff and Defendant. Plaintiff’s husband was my friend. We were there and he fell sick. I have a drinking bar and he was a patron. After the close of work, he passed by to take a bottle or two before he goes home. When he fell sick following a motor accident I went to pay him a visit. One day I heard that he was dead. So, I called the defendant to confirm whether he was indeed dead. When I went to work too I was told he had died. So, I requested the phone number of Simeon. I was there when defendant called not knowing the phone was on speaker mode. I told Simeon Kofi to inform him there was a confrontation between plaintiff and his girlfriend at Adausena and there was a curse hence they should go for consultation before a day is fixed for burial. Later plaintiff called me. During the Cross Examination. This was the question posed by the plaintiff as the witness responded. Q= when I called you, you said Kofi told you I cursed him? A= that is not correct, I rather told Simeon that there was a curse. Whether or not plaintiff was able to prove that defendant influenced the sister of the deceased (Attah Akande) and Newmont to deny plaintiff daughter a reasonable of the deceased’s estate? The court found as a fact that defendant was the senior officer to the deceased Attah Akande and interacted or found the need to know some of the challenges the deceased was facing in life when the deceased was not in the best frame of mind. Defendant gave an instance where the deceased requested for the terminal report from the plaintiff but the plaintiff refused. This assertion was not rebutted. Plaintiff further stated defendant’s motive of enquiring from the sister of the deceased whether she was aware Bridget Tutuwaa is the daughter of the deceased brother was to deny her daughter part of his estate, but the first witness for the plaintiff (PW1) did not mention anything of the sort in her testimony. Plaintiff did not provide the exact words or conduct of the defendant that suggests her daughter should be denied a stake in her father’s estate. On the contrary, the court observed defendant rather facilitated the process for the officials of Newmont Golden Ridge, Akyem Mines to reach plaintiff’s daughter for deliberation towards payment of benefit. Plaintiff confirmed at one time she enquired from the defendant whether she will be needed. Whether or not the plaintiff was able to prove on preponderance of probabilities that indeed defendant tarnished her image about the death of Attah Akande and Kofi …. Q=Do you remember I was sitting in front of my store and you put your phone at your ear as if you were making a call and stated “ wudi nii a wo ware a na wo eku wo kun no” for that reason I do not operate the store or business again. A= that is not correct. Plaintiff alluded to the fact that defendant was saying everywhere that she killed or caused the death of both men. Plaintiff is expected to prove her case based on evidence. In the course of the trial, plaintiff mentioned it was Attaa Akandey who briefed her defendant was peddling that message. In the testimony of PW1 Ataa Akandey, the court observed that though defendant engaged witness in a conversation there was no direct act by the defendant suggesting or connecting plaintiff to the death of her brother. What is painful as lovers parting ways or breaking up their relationship? For over eleven years Attah Akandey was able to survive or move on in life after breaking up his relationship with the plaintiff hence do not see why plaintiff should blame the defendant. About the death of the plaintiff’s husband, Plaintiff intimated it was the defendant who was peddling rumour in town linking her to the death of her husband. The plaintiff stated defendant informed the relatives and a friend as well as casting insinuation that she was the cause of death of her late husband. From the evidence before the court, it was observed the defendant served as a conduit for second witness for the defendant (DW2) and the deceased family by conveying a message to them. According to the first witness for the defendant (DW1) upon receiving the message he told the family as well as the plaintiff to consult an oracle to find out the cause of death of the late husband/concubine before a day is fixed for burial and final funeral rites. DW1 stated upon consultation, it came to light that their relative died of a natural course. Till date neither plaintiff nor anybody has approached the family with a contrary view. DW2 in his testimony made it clear that there was a scuffle between plaintiff and the deceased’s concubine and that resulted in the plaintiff cursing the husband in his presence. So he thought it wise to alert the family to take steps to find out the cause of his death to avert future calamity. This he did by speaking directly to the deceased family member DW1. This will lead us to the issue whether or not defendant’s conduct has caused injury to the plaintiff? In the instant suit, following the death of the two men, plaintiff being a former concubine and wife to the deceased husband, what is the role to be played by the plaintiff in the conduct of the funeral? We have to look at the relationship between the two men and the demands of the society regarding customary rites she has to observe leading to the burial of the two men. For the first death, the court observed it was the daughter’s father who has passed on to eternity hence much will not be expected of her. Or she will not be expected customarily to perform any role towards the conduct of the funeral. But for the husband, there are certain rites plaintiff ought to go through before, during and after the burial of the husband per the Akan custom. In some communities plaintiff being a trader (shop keeper) will not be expected to operate her store some days preceding the funeral of the deceased, wear dark/black cloths from the day the husband died, during the funeral and “Kuna”. In some communities plaintiff’s hair will be shaved during the period and other rituals undergone to signify that she has lost the husband. Plaintiff further asserted that at a “Tuo Zaafi joint in the community defendant discussed her about supposed misdeed with some people there but could not prove or adduce enough evidence as to what exactly went on there. . A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally and to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business. Defamation is about the publication of statements deliberately and maliciously about a person where it is meant to ridicule, or hinder other persons in society from associating or having intercourse with such a person. It is not the case that people will approach the defamed to express their disapproval to him as a result of the publication but the opinion they form about such a person after the publication of the defamatory statements is what matters. To establish or to prove defamation the Plaintiff as already stated must prove that the statement must concern a matter of fact and not an opinion, must prove that same was a published statement, that the statement must cause injury to the Plaintiff, for which in the instant case the plaintiff failed to prove. I am inclined to believe the story of the defendant than that of the plaintiff. In view of that I hereby enter judgment in favour of the defendant against the plaintiff. In awarding the costs, defendant raised his hands to catch the attention of the Magistrate and stated costs should be waived hence there is not order as to costs. SIGN; HW. BENJAMIN B. ATTABRA DISTRICT MAGISTRATE 28 – 11 – 2022