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The plaintiffs in this case,
numbering six, by their writ of
summons, claim from the
defendants herein, the Inspector
General of Police and T.V. 3
Networks Limited, the following
reliefs:
i)
General and special damages for
assault and battery;
ii)
General damages for false
imprisonment; and
iii)
Damages for defamation.
The averments of the plaintiffs
in support of their case are as
follows:
On or about 08-08-2005, one
Benjy, who is a friend of the
plaintiffs, informed them that
one Richard had absconded with
his twenty-seven thousand Ghana
cedis (GH¢27,000.00) under the
pretext of supplying him with
voatanga seeds. Benjy then asked
the plaintiffs to accompany him
to Agona Swedru where he heard
Richard was. When they got to
Swedru, they were informed that
Richard was at Breman Nwomasu,
near Breman Asikuma, buying
coffee. They, therefore,
continued to Breman Nwomasu
where they saw an articulator
tipper truck loading voatanga
seeds. They approached the
workers who were Richard’s
workers and asked of the
whereabouts of Richard but the
workers told them Richard was
not available but gave his
deputy, Ernest’s, telephone
number to the plaintiffs. When
they got in touch with Ernest,
he asked them to meet him at
Mankessim. Some of the
plaintiffs and Benjy went to
Mankessim and met Ernest and the
latter went with them to lodge a
complaint against Richard at the
Mankessim police station.
Thereafter, they were
accompanied by the Mankessim
police officer back to Breman
Nwomasu where the articulator
truck loading the voatanga seeds
was. However, before going back
there, Benjy telephoned those
plaintiffs at Breman Nwomasu of
their decision to return there
and instructed them not to leave
the truck as Ernest said he did
not know the whereabouts of
Richard.
Daniel Acquah, (the 1st
plaintiff) who was among those
at Breman Nwomasu overheard the
articulator truck driver
informing Richard on his cell
phone that some people were
looking for him and he suspected
there was a problem. The 1st
plaintiff, therefore, asked the
driver of the articulator truck
to move the vehicle to the
police station. Unknown to the
plaintiffs, however, one of
Richard’s workers had called the
police to report that armed
robbers had intercepted and
attacked them.
On realizing that the truck had
been moved to another place, the
1st plaintiff
instructed the 6th
plaintiff to use his tico taxi
cab to block the truck. The 1st,
3rd and 5th
plaintiffs were then standing at
the junction when an Opel taxi
cab passed on top speed with
four armed policemen on board.
The 1st plaintiff
stopped the said Opel taxi cab
and one of the policemen
alighted holding an A.K. 47 and
shouted “where are the armed
robbers?” Richard’s workers
pointed at those plaintiffs
there and responded in Twi
“there they are”. The 1st
plaintiff moved towards the
policeman and said he wanted
their assistance but the
policeman cocked his gun and
asked the 1st
plaintiff not to approach him or
else he would shoot.
The 3rd and 5th
plaintiffs joined the 1st
plaintiff then all the policemen
alighted from the taxi cab,
stood about 10 meters away from
them, cocked their guns and
asked them to lie on the ground
and release their phones. As the
1st plaintiff was
lying down, one of the policemen
shot straight at him but luckily
the bullet passed through the
front part of his shirt and
landed on the ground near the 3rd
plaintiff’s left rib. As all the
three plaintiffs were on the
ground, the four policemen were
shooting to the ground in front
of them. The shooting went on
for fifteen minutes before a
chief inspector from Breman
Asikuma police station arrived
and ordered cease fire. The
inspector also asked of the
armed robbers and the four
policemen pointed at them and
responded “there they are”.
Upon the instructions of the
inspector, the three plaintiffs
were handcuffed, put in the
inspector’s vehicle, and,
together with the articulator
truck and the plaintiff’s tico
taxi cab, they were escorted to
the police station. Meanwhile, a
big crowd followed the three
plaintiffs to the police
station. A police man there,
after looking at the three
plaintiffs, told the other
policemen that they were not
armed robbers.
Later, the three plaintiffs were
sent to the D.S.P.’s office
nearby while the crowd followed
and were beating, slapping and
hooting at them that they were
armed robbers. The D.S.P. was
interrogating them when
Richard’s truck driver came in
with four other people to
complain that the three
plaintiffs had pulled his
genital organ. The D.S.P.
instructed the policemen to send
the three plaintiffs back to the
cells. While they were being
escorted to the cells, the
beating and slapping continued
amid shouts of “armed robbers”.
When the three plaintiffs were
being escorted to the police
cell, they met the 2nd
and 4th plaintiffs
and Benjy. On seeing them talk
to the 2nd and 4th
plaintiffs while Benjy left to
see the D.S.P., the crowd
pounced on the 2nd
and 4th plaintiffs
shouting “there are two armed
robbers still in the car”. The
crowd attempted to lynch the 2nd
and 4th plaintiffs
but they were saved by warning
shots fired by the policemen.
Later in the day, a certain man
who alleged he was a pastor and
a business partner of Richard
based in Kumasi came to the
police station and later left
with the articulator truck, the
goods, workers and Richard’s
driver.
Around 7:00 p.m. that same day,
the 2nd defendant
crew came to the police station
and started filming the
plaintiffs. The next day, they
were released on bail after
their statements were taken. And
out of five cell phones the
policemen took from them, they
returned four and kept a
motorola phone belonging to the
1st plaintiff.
On 10-08-2005, the 2nd
defendant, in its late news
telecast showed pictures of the
plaintiffs on the screen with
the newscaster mentioning that
they were armed robbers who had
been arrested at Breman Asikuma.
As a result of the broadcast by
the 2nd defendant,
the 1st plaintiff
says he was ejected by his
landlord at Bubuashie as the
latter claims he cannot stay in
the same house with an armed
robber. And any time he visits
his mother at Atico Junction,
people around call him ‘Ataa
Ayee’.
For the 3rd
plaintiff, his wife has left him
and has gone back to her parents
since, according to her, she
cannot stay married to an armed
robber. He has also been stopped
from holding himself out as a
G.P.R.T.U. executive.
With respect to the 2nd
and 4th plaintiffs
who are footballers, no team
wants to engage them since
people call them armed robbers.
The 5th plaintiff who
is a student has been given a
nickname ‘armed robber’ at
school, while the 6th
plaintiff’s car owner has taken
his car away from him and he is
now a shoe shine boy at Accra
Central.
All the plaintiffs say that they
have, as a result of this
incident, suffered severe
physical, mental and emotional
agony. Thus, their action.
The defence of the 1st
defendant is that one of the
workers of Richard called the
police to report that they had
been intercepted by armed
robbers and police moved in and
arrested the suspects, the
plaintiffs, but later noticed
that they were not armed
robbers.
The 1st defendant
denies inviting the 2nd
defendant’s crew to film the
plaintiffs. The 1st
defendant contends that the
police have powers and one of
such is the power of arrest upon
suspicion that a crime has been
committed.
The 1st defendant is,
therefore, of the view that the
plaintiffs have no case against
the police.
The case of the 2nd
defendant is that it did
telecast on its late news of a
story about six alleged armed
robbers who had been arrested at
Breman Asikuma. And the comments
it made on the said news were
not defamatory, or in the
alternative, the comments were
published on an occasion of
qualified privilege.
The 2nd defendant
gives the particulars of the
qualified privilege thus:
“1. The 2nd defendant
is a news network company that
disseminates news by the medium
of television.
2. The 2nd defendant
was invited to cover the matter
the plaintiffs complained of.
3. The 2nd defendant
broadcast the matters complained
of because it addressed an issue
of public interest, specially
armed robbery.
4. Throughout the broadcast the
reporter described the
plaintiffs as ‘suspects’.
5. The reporter also reported
that ‘the timely arrival of the
police prevented the suspects
from being lynched’.”
Furthermore, the 2nd
defendant says that the
statement made on their telecast
was a view a responsible person
could have held regarding the
state of facts which existed.
The 2nd defendant
says, therefore, that the
plaintiffs are not entitled to
the reliefs they seek against
it.
Numerous issues were set down at
the application for directions.
However, the relevant issues,
the determination of which would
dispose of this matter, are the
following:
a)
Whether or not the arrest and
incarceration of the plaintiffs
by the 1st defendant
was lawful.
b)
Whether or not it was the 1st
defendant who called or asked
the 2nd defendant to
film the plaintiffs in police
custody or the 2nd
defendant on its own volition
filmed the plaintiffs.
c)
Whether or not the filming and
subsequent broadcast of the
plaintiffs by the 2nd
defendant is lawful.
d)
Whether or not the plaintiffs
are entitled to their claims.
I would take the issues in the
order in which they have been
set down above.
a)
Whether or not the arrest and
incarceration of the plaintiffs
by the 1st defendant
was lawful.
There is not much dispute in the
evidence of this case. One
Benjamin Bedford @ Benjy gave
the sum of GH¢2,700.00 to one
Richard Aboya Dana in 2003 to
supply him with “voatanga seeds”
(a medicinal plant) but the
latter absconded with the money.
So, on 08-08-2005, Benjy had
information that Richard Aboya
Dana was purchasing some of the
voatanga seeds at Agona Swedru.
Benjy, therefore, hired the
services of the 1st,
2nd, 3rd,
4th and 5th
plaintiffs from Accra and Kasoa
and they boarded a taxi-cab No.
GW 8503 P belonging to Benjy and
they proceeded to Agona Swedru
to demand the money from
Richard. When they got there,
they did not see Richard but had
information that he was at
Breman Nwomaso. They then hired
a tico taxi cab number GR 7673 W
being driven by the 6th
plaintiff and they proceeded to
Nwomaso.
At Breman Nwomaso, they did not
see Richard but were informed
that he was at Mankessim. Benjy
and the 2nd and 4th
plaintiffs, therefore, proceeded
to Mankessim in the company of
one Ernest, Richard’s deputy.
They left behind the 1st,
3rd, 5th
and 6th plaintiffs to
guard a tipper truck which had
been loaded with the seeds.
While guarding the truck, some
of Ernest’s workers approached
them as to why they were there.
A misunderstanding arose between
them. One of the workers sneaked
out and lodged a complaint with
the Breman Asikuma police that
armed robbers had attacked them.
The police responded immediately
and went to the scene and
arrested the 1st, 3rd,
5th and 6th
plaintiffs and impounded the
tico taxi cab. They were,
however, not armed.
They were, therefore, arraigned
before the District Commander,
D.S.P. Fuseini Mahama, who
interrogated them and was
convinced that they were not
armed robbers. The police later
escorted the tipper truck loaded
with the voatanga seeds to the
police station for safe keeping.
Later on the 2nd and
4th plaintiffs and
Benjy came to the police station
and they were also arrested and
detained. On 09-08-2005, they
were all released on police
enquiry bail. One William Owusu
Ampoma, a worker of Richard who
reported that the plaintiffs had
assaulted him in the course of
the misunderstanding and who was
issued with a police medical
report form to attend hospital
returned same duly endorsed as
follows:
“… left wrist joint, painful
left elbow with abrasion,
painful right costal margin,
painful swollen forehead. HPC Pt
alleged sustained above after
being assaulted by two people
yesterday. O/E GC satisfactory,
tender forehead abrasion both
knee joints and 1t elbow. Pt was
seen and treated.”
After police investigations, the
six plaintiffs and Benjy were
charged and arraigned before the
Agona Swedru Circuit Court on
19-08-2005 with assault among
others. They pleaded not guilty
to the charges and were each
granted bail. On 20-09-2005, the
case was settled out of court
and the defendants were
discharged.
By section 1(1) of the Police
Service Act, 1970 (Act 350), the
police have a duty to “prevent
and detect crime, apprehend
offenders, and maintain public
order and the safety of person
and property.” To perform this
onerous duty, one of the
important steps includes arrest.
By section 10(2) of the Criminal
and Other offences (Procedure)
Act, 1960, (Act 30), the police
are entitled to arrest any
person, without warrant, whom
they suspect upon reasonable
grounds of having committed an
offence or being about to commit
an offence.
In the instant case, a report
was made to the Breman Asikuma
police that suspected armed
robbers had attacked people at
Breman Nwomaso. The police, in
accordance with their statutory
duty, moved in with dispatch and
arrested the suspects. It is
true they used weapons. But it
would be fool hardy to go for
the arrest of a suspected robber
without being armed. The
evidence of the plaintiffs that
the police gave warning shots
although partly exaggerated is
not unreasonable. They did what
they were expected to do in the
circumstances.
From the facts of the case,
therefore, the arrest and
incarceration of the plaintiffs
by the police on suspicion that
they were armed robbers was done
in accordance with their lawful
duties.
b)
Whether or not it was the 1st
defendant who called or asked
the 2nd defendant to
film the plaintiffs in police
custody or the 2nd
defendant on its own volition
filmed the plaintiffs.
In paragraph 49 of the Statement
of Claim, the plaintiffs aver as
follows:
“Around 7:00 p.m. a T.V. 3 crew
came to the police station and
started filming plaintiffs.”
The 1st defendant
reacted to the plaintiff’s
averment in paragraph 12 of its
statement of defence as follows:
“The 1st defendant
denies paragraph 49 and states
that it did not invite the crew
of T.V. 3 Network Limited to
film the plaintiffs.”
The 2nd defendant in
its statement of defence however
stated in paragraph 6(2) thus:
“The 2nd
defendant was invited to cover
the matter the plaintiffs
complained?’”
So, the issue is narrowed down
to who invited the 2nd
defendant to film the plaintiffs
who were in police custody. The
answer is not difficult to find.
In Exhibit 3, it is obvious that
it was the police who either
invited or allowed the 2nd
defendant to cover the incident.
The District Commander then
granted the 2nd
defendant an interview as to
what happened. The 2nd
defendant thereafter broadcast
the incident with the interview
the District Commander of
Police, D.S.P. Mahama, gave.
Furthermore, the evidence of the
1st, 2nd
and 6th plaintiffs is
to the effect that it was the
police who invited the 2nd
defendant to film them in the
police cells.
The 2nd defendant
witness, Emma Morrison, the
general manager of News and
Sports, also testified that its
news crew was on its usual
rounds in Breman Asikuma when
they were attracted to the
police station by the sight of a
large crowd. When they went to
find out, the police informed
them that they had arrested
suspects in connection with
armed robbery and the police
gave them the permission to film
the plaintiffs.
So, there is abundant evidence
that the police permitted the 2nd
defendant to film the plaintiffs
and even granted the 2nd
defendant interview in respect
of the incident. The 2nd
defendant did not film the
plaintiffs on its own volition
and it would even have been
impossible to do so without the
permission of the police for the
plaintiffs were in police
custody.
c)
Whether or not the filming and
subsequent broadcast of the
plaintiffs by the 2nd
defendant is lawful.
It is an indisputable fact that
the 2nd defendant did
telecast on its late news of a
story about the plaintiffs. The
defence of the 2nd
defendant is that its
publication referred to the
plaintiffs as alleged armed
robbers who had been arrested at
Breman Asikuma and the comments
it made on the said late news
were not defamatory or in the
alternative they were published
on an occasion of qualified
privilege.
The 2nd defendant
also relies on a defence of fair
comments on a matter of public
interest.
Obviously, to say of a person
that he is an armed robber if it
is untrue is defamatory. The
evidence shows clearly that the
plaintiffs were not armed
robbers. But the question is
whether the 2nd
defendant referred to the
plaintiffs in their late news
broadcast as armed robbers. I
would hereunder reproduce the
transcript of the said news
broadcast (Exhibit 3) which is
not long. It states thus:
“NEWSREADER: … The
… six men attempted to seize an
articulator truck heading
towards Accra on the Asikuma
Mankessim Road.
REPORTER:
The suspects (mentioned names of
plaintiffs) are in police
custody at Breman Asikuma in the
Central Region. (At this point
showed the suspects).
The suspects were in a Nissan
Taxi Cab with a private vehicle
registration No. GW 8503 P (At
this point showed the vehicle),
when they were arrested.
According to the police, an
articulator truck with
registration No. GR 9214 V (At
this point showed the
articulator truck) carrying some
quantities of local herbs were
nearly seized by the robbers.
(showed the suspects). Four of
them, were picked up at Nwomasu
when the police got wind of the
attempted seizure of the truck.
The timely arrival of the police
prevented the suspects from
being lynched. (This was written
on the screen).
D.S.P. Mahama said it was while
investigating the matter that
the two others were brought from
Mankesim.
D.S.P. Mahama:
“Just about 2:05 p.m. this
afternoon, we had information
that people suspected to be
armed robbers had landed at a
village called Nwomasu and had
started harassing people there.
But the behavior of the suspects
is so … strange that we have to
do some sort of investigation.”
REPORTER:
A large crowd of people had
gathered at the precincts of the
police station requesting that
the suspects should be brought
out. (Showing large crown
outside police station.) The
Breman Asikuma police
authorities however said no
robbery has occurred in the
district and no one has reported
any case of armed robbery before
the incident. DSP Mahama
confirmed security in the
District has been excellent and
mentioned stealing was a
headache yet to be dealt with.
The police is investigating the
arrest.”
In the instant case, the
plaintiffs were reported to the
police as armed robbers who had
attacked an articulator truck.
The plaintiffs were arrested
based on that report. The 2nd
defendant visited the police
station and was briefed about
the report. 2nd
defendant filmed the plaintiffs
and broadcast them as suspects
in an armed robbery.
The defence put up is one of
fair comment and qualified
privilege. This defence had been
held by the Supreme Court to be
obsolete in the light of Order
57 of the High Court (Civil
Procedure) Rules, 2004 (C.I. 47)
in Daily Dispatch & Others
v. Osei Bonsu II [2010] SCGLR
452. At page 457, the
Supreme Court held as follows:
“In the form in which the plea
of fair comment existed before
the coming into force of the
High Court (Civil Procedure)
Rules, 2004 (C.I. 47) it did not
require the defendants to give
any particulars of the facts
relied upon in support of the
plea of fair comment. Today,
however, by virtue of Order 57,
r 3 of C. I. 47, the defendant
is required to give particulars
of the facts relied upon in
support of the plea of fair
comment. We think that with the
new rule in Order 57, r 3, the
defendant has simply to plead
the plea of fair comment. It
appears that with this new rule,
the ‘rolled up plea’, i.e. the
plea of qualified privilege and
fair comment has become
obsolete, there being nothing to
be gained by it.”
On the defence of fair comment,
the Supreme Court held, relying
on Benneh v. New Times
Corporation [1982-83] GLR 302
that where the words complained
of by the plaintiff as having
been published of and concerning
him are defamatory, a successful
plea of fair comment relieves
the publisher of liability. To
succeed, a party who raises the
said defence of fair comment
must show that the publication
was just an expression by him of
a mere opinion and not
assertions of fact. Whether the
words complained of were
reasonably understood as a
comment or a statement of fact
is determinable from the context
of the publication.
Additionally, he must show that
the publication was on a matter
of public interest based on
facts that were in existence
before the publication was made.
In Exhibit 3, I do not find any
comments made therein.
Everything that was in Exhibit 3
which has been reproduced supra
are statements of fact to the
effect that the plaintiffs were
arrested on suspicion of
robbery. The 2nd
defendant did not comment on the
story. It only reported what
happened. So, this is not a case
where the defence of fair
comment would arise.
I would now proceed to consider
the defence of qualified
privilege.
In Mosi v. Mobil Oil Ghana
Ltd, Kumasi [1964] GLR 23,
Djabanor J cited with approval a
number of cases in which this
defence was discussed. The cases
include the following:
In Toogood v. Spyring
[1834] 149 E.R. 1044. At
page 1050 Parke B said of
privileged communications thus:
“if fairly warranted by any
reasonable occasion or existing,
and honestly made, such
communications are protected for
the common convenience and
welfare of society.”
In Whiteley v. Adams
[1863] 143 E.R. 838,
Erle C. J. at p. 846-847 laid
down the tests thus:
“… if the circumstances bring
the judge to the opinion that
the communication was made in
the discharge of some social or
moral duty, or on the ground of
an interest in the party making
or receiving it, then, if the
words pass in the honest belief
on the part of the person
writing or uttering them, he is
bound to hold that the action
fails.”
Blackburn J in Davies v.
Snead [1870] L.R. 5 Q.B. 608
also said
“… where a person is so situated
that it becomes a right in the
interest of society that he
should tell a third person
certain facts, then if he bona
fide and without malice does
tell them it is privileged
communication.”
In the particular circumstances
of this case, the 2nd
defendant who published the
plaintiffs is a renowned
television station. So, it would
also be useful to refer to the
case of Reynolds v. Times
Newspapers [1993] 3 W.L.R. 1010
as it enlightens us on the scope
of qualified privilege at common
law with respect to newspaper
publications as it is within a
similar domain as television
broadcast. The scope was stated
thus:
“qualified privilege would be
available if in all the
circumstances of the particular
publication there was a social
duty to publish the material to
the public at large so that the
public would be said to be
entitled to the information.”
As indicated earlier, the 2nd
defendant is a well known
television station that
disseminates news by the medium
of television. The 2nd
defendant, therefore, has an
interest and duty to broadcast
the incident involving the
plaintiffs to the listening
public for armed robbery is a
matter of serious public
concern. The defence of
qualified privilege is,
therefore, maintainable unless
the plaintiff can prove malice
on the part of the 2nd
defendant.
What constitutes malice was
stated in Clark v.
Molyneux [1877] 3QB.237
where it was held that
statements made on a privileged
occasion will be protected,
provided it does not appear that
the defendant acted from any
indirect motive.
As said earlier on, the onus
lies with the plaintiff to prove
malice. Thus, in Stuart v.
Bell [1891] 2QB 341,
Lindley J. stated thus:
“I apprehend the moment the
judge rules that the occasion is
privileged, the burden of
showing that the defendant did
not act in respect of the reason
of the privilege, but for some
other and indirect reason, is
thrown on the plaintiff.”
The plaintiffs in this case have
not attempted to prove malice on
the part of the 2nd
defendant in broadcasting the
incident.
In conclusion, I would state
that the 2nd
defendant made the broadcast on
a privileged occasion. Also,
what they broadcast, that is
that the plaintiffs were
arrested on suspicion of
robbery, was also true for
Richard’s workers reported to
the police that they were
attacked by armed robbers and
based on which the plaintiffs
were arrested for
investigations.
Accordingly, the plaintiffs’
entire action lacks merit and
same is hereby dismissed.
COUNSEL:
1. Mrs. Ewurasi Jeffrey Amoako
for the Plaintiffs.
2. Clarence Kuwornu (Chief State
Attorney) for the 1st
Defendant.
3. Ms. Margaret Owusu for the 2nd
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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