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On 04-02-2010, the plaintiff,
Desmond Adu, caused a writ to be
issued in this court in which he
claims against the defendants,
namely, Ghana Commercial Bank
Ltd., Ms. Joyce Atta Krah and
Mr. Kodua, the following reliefs:
1.
General damages for unlawful
arrest, detention and violation
of the plaintiff’s human rights.
2.
General and punitive damages for
defamation.
In the accompanying statement of
claim, the plaintiff avers that
during the 2008/2009 National
Service year he, as a graduate,
was posted to the Legon branch
of Ghana Commercial Bank Ltd.
(the 1st defendant)
where he was put on the
Automated Teller Machine (ATM)
duties. Sometime around June
2008, the Legon Branch Manager
informed him that a customer had
reported that somebody had
withdrawn money from her account
and she suspected him (the
plaintiff). He denied the
allegation. Subsequently, he was
transferred to the Tema Area
Office of the bank.
The plaintiff avers further
that, whilst at the Tema Area
office, the Area Manager, on
26-09-2008, gave him a letter to
take to the General Manager,
Retail Banking, Ms. Joyce Atta
Krah (the 2nd
defendant) at her office at the
Headquarters of the Bank in
Accra. He obliged and brought
the letter to the 2nd
defendant. At the office of the
2nd defendant, he met
her with the Security
Co-ordinator, Mr. Kodua (the 3rd
defendant), one Mr. Donkor and
another officer. These officers
then interrogated him about the
allegation of stealing money
from the accounts of the
customer at the Legon branch of
the bank with her ATM card. The
plaintiff informed them that,
even though he knew the said
customer who had once approached
him for assistance when she had
a problem with her ATM card, he
had never withdrawn any money
from the said customer’s
account.
The plaintiff asserts that after
his denial of stealing money
from the customer, he was
detained and the customer was
invited to the office and she
came and repeated the allegation
of theft of her money which he
again denied. The 2nd
defendant then asked the 3rd
defendant to take him away
whereupon the latter escorted
him to his office, detained him
and gave him a paper to write a
statement. After he wrote the
statement, the 3rd
defendant directed him to add
some statements which would
incriminate himself but he
refused despite threats of
assault.
The plaintiff alleges that,
after taking his statement, the
defendants unlawfully arrested
him, put him into a vehicle
together with the customer who
made the allegation, put two
security guards and Mr. Donkor
around him and drove him
straight to the police
headquarters around 12:30 p.m.
where they got him further
detained and the police took
further statements from him. It
was not until 6:30 p.m. that he
was able to secure a bail after
his mother had engaged lawyers
to intervene.
The plaintiff alleges further
that, as a condition of bail, he
was made to report to the police
three times a week for three
weeks, then twice a week and
then once a week for several
weeks until the police, one day,
informed him that there had been
new developments so he should
stop reporting and that he would
be called if the need arose. He
later caused his lawyers to
write to the police for a report
on their investigations. The
police report exonerated him
from the allegations leveled
against him.
The plaintiff further alleges
that, for the period that the
defendants arrested and
unlawfully detained him, they
denied him food, water and even
prevented him from talking on
his mobile phone.
The plaintiff, therefore,
contends that the defendants
grossly violated and abused his
human rights as enshrined in the
1992 Constitution of Ghana. He
also contends that, by their
unlawful actions, the defendants
succeeded in seriously damaging
the image and reputation of the
plaintiff as news quickly spread
that the plaintiff was a thief
who had stolen monies from a
customer’s account. He further
contends that by their unlawful
conduct, the defendants
succeeded in painting the
plaintiff in the eyes of the
public, particularly in the
banking industry, as a dishonest
person, not trustworthy and as
such not fit for employment
particularly in the financial
sector. This has so seriously
affected his employment
opportunities that he has so far
been unable to secure employment
after several efforts.
The defendants, in their
defence, deny detaining the
plaintiff. They state that the
plaintiff was under the
supervision of the 2nd
defendant and as such he was
under a duty as an employee to
assist in the investigation and
resolution of the complaint the
customer lodged against him. The
defendants state that at no time
did the plaintiff express his
intention to leave the meeting
nor was he restrained.
In the course of the meeting,
the defendants allege that they
realized that the plaintiff had
previously been queried in
connection with an attempted use
of a customer’s ATM card at the
Madina branch of the bank on
16-05-2008 between 9:00 a.m. and
10:00 a.m. The plaintiff was
observed using the ATM by the
ATM custodian who offered to
assist him after the card was
captured by the ATM. When the
card was retrieved by the ATM
custodian, it was detected to
belong to a customer and not the
plaintiff, who by then had left
without waiting for the card.
When later he was confronted, he
denied using a customer’s ATM
card and insisted that he used
his own card which he claimed he
had since misplaced. However,
the journal of the Madina
branch’s ATM terminal for
16-05-2008 has no record of the
plaintiff’s ATM card being used
but show that the customer’s
card had been unsuccessfully
used at the terminal at the
exact time the plaintiff was
using the ATM.
The defendants, further, allege
that the customer whose card was
used at the Madina branch
reported that her ATM card had
been used by persons unknown to
her to withdraw money from her
account and the case was
reported to the 3rd
defendant. So, when the
defendants realized that the
plaintiff was involved in a
similar previous allegation of
the use of a customer’s ATM
card, the 3rd
defendant invited him to his
office for further investigation
in respect of both incidents. It
is the duty of the 3rd
defendant to investigate alleged
fraud, stealing and misconduct
by staff of the bank and advise
management. In the course of the
investigation, the 3rd
defendant may request staff to
write statements in connection
with the case under
investigation and that was what
he did. The 3rd
defendant denies threatening the
plaintiff to write any self
incriminating statement.
The defendants deny arresting
the plaintiff after he gave his
statement to the 3rd
defendant and state that in view
of their inability to resolve
the matter within its office,
all the parties, particularly
the customer whose ATM card was
used in June 2008, and the
plaintiff agreed that the matter
be referred to the police. The
plaintiff, therefore, willingly
went to the police headquarters
with the customer, together with
the security co-ordinator, where
the customer lodged her
complaint and the police took a
statement from the plaintiff.
The defendants thus say that
they only transported the
customer and the plaintiff to
the police headquarters and left
soon after an investigator had
been assigned to the case.
The defendants aver that the
customer, who is the complainant
in the case, later caused it to
be withdrawn after she claimed
that her money had been
anonymously returned to her and
as such she was no longer
interested in the case. It is
not the case that the police
report exonerated the plaintiff
from any of the allegations
leveled against him. The
defendants deny refusing to give
food and water to the plaintiff.
They also deny preventing him
from talking on his mobile
phone.
The defendants, therefore, say
that they did not violate the
plaintiff’s fundamental human
rights as enshrined in the 1992
Constitution. They also deny
defaming the plaintiff so the
plaintiff is not entitled to his
claims.
In reply, the plaintiff denies
following the customer
voluntarily to the police
headquarters and states that he
was arrested and put into a
vehicle with the customer, with
two security guards and Mr.
Donkor around him.
At the application for
directions, the following issues
were set down for trial:
1.
Whether or not the plaintiff was
unlawfully arrested and detained
by the defendants.
2.
Whether or not the defendants
violated the plaintiff’s human
rights.
3.
Whether or not the police
investigations exonerated the
plaintiff from the allegations
leveled against him.
4.
Whether or not the defendants’
actions damages the plaintiff’s
image and reputation.
5.
Whether or not the plaintiff is
entitled to his claims.
6.
Any other issues arising from
the pleadings.
I would determine these issues
in the order in which they are
set out above.
1. Whether or not the
plaintiff was unlawfully
arrested and detained by the
defendants.
It would be important in
deciding this issue to find out
at what stage of the meeting, on
26-09-2008, the plaintiff was
arrested. From the facts, the
plaintiff went to the head
office of the defendants
ostensibly to present a letter
to the 2nd defendant
but, as a matter of fact, the
defendants only teased him there
to interrogate him over a
complaint by a customer, Diana
Opoku Agyeman, that somebody had
stolen money from her account at
Legon branch of the defendant
bank in which she mentioned the
plaintiff as a suspect (Exhibit
8). The defendants interrogated
the plaintiff and in the process
invited the customer in to
confirm the complaint. The
plaintiff denied the offence.
The defendants, especially the 3rd
defendant, then took a written
statement from the plaintiff.
The above undisputed facts show
that the defendants did not
arrest the plaintiff at the time
he was invited to meet the 2nd
defendant. The defendants only
carried out internal
investigations with the view to
determining whether indeed it
was the plaintiff who stole the
customer’s money from her
account. It is perfectly
legitimate for an employer and a
bank as such to carry out
internal investigations into
allegations of misconduct
involving its employees such as
the plaintiff. The defendants
cannot be faulted for that
internal investigations.
However, the matter did not end
with the defendants
investigations in the 2nd
defendant’s office. The
plaintiff alleges that the
defendants arrested him and
handed him over to the police
after the internal
investigations. The defendant
deny this and alleges on the
contrary that the plaintiff and
the customer voluntarily handed
themselves over to the police to
enable the latter investigate
the theft case.
Both parties gave evidence in
respect of this issue. The
plaintiff’s evidence is that the
3rd defendant, after
he wrote his statement amidst
threats, escorted him, in the
company of two security
personnel and Mr. Donkor, to the
police headquarters. The
customer also joined the car. At
the police headquarters, he
delivered a letter to one of the
policemen after which he was
sent to one of the offices and
the police gave him paper to
write a statement. He was later
granted bail and made to report,
occasionally.
The above evidence of the
plaintiff shows that he was
arrested by the 3rd
defendant and sent to the police
headquarters. It is not the case
that he voluntarily went there.
The plaintiff’s evidence is
corroborated by the police
investigator in the case at the
police headquarters, Richard
Boakye (P.W. 2). In his
evidence, P.W. 2 said that the
police received a petition on
26-09-2008 from the 1st
defendant to the effect that the
plaintiff manipulated some
accounts of some customers
through the ATM. P.W. 2 further
testified that it was the 3rd
defendant who brought the
plaintiff to the police.
The plaintiff’s evidence to the
effect that he was arrested by
the 3rd defendant is
even corroborated by the 2nd
defendant who testified as D. W.
1. During cross-examination of
D.W. 1, this was what
transpired.
“Q: Now, from what you
have said, when the plaintiff
came to you, you and others
interrogated him in your office
for about 2 hours?
A: Yes.
Q: After that you made
the security co-ordinator take
him away?
A: Yes.
…
Q: Did you care to know
about that?
A: Yes, because later on the
security co-ordinator called me
and said he has taken him
to the police station …
.” (my emphasis).
Further still, the 3rd
defendant who testified as D.W.
4 even corroborated the
plaintiff’s evidence that he was
arrested by the 3rd
defendant when the latter
testified in his
evidence-in-chief as follows:
“My Lord, the General Manager
upon insistence of the lady that
it is Adu who has taken the
money … I was instructed
by the General Manager to take
the parties to the police to
continue investigations.”
(my emphasis).
Q: Did you do that?
A: Yes, My Lord.”
So, the evidence is indisputable
that the defendants, through the
3rd defendant,
arrested the plaintiff and sent
him to the police headquarters.
The question then is whether the
said arrest is lawful.
The Criminal and Other Offences
Procedure Act, 1960, Act 30,
states the law on arrest.
Section 12 of Act 30 regulates
arrest by a private person such
as the defendants. It states
that a private person may
arrest without warrant any
person who, in his presence,
commits the following offences,
namely:
1.
any offence involving the use of
force, or violence;
2.
any offence whereby bodily harm
is caused to any person;
3.
any offence in the nature of
stealing or fraud;
4.
any offence involving injury to
public property;
5.
any offence involving injury to
property owned by, or in the
lawful care or custody of, that
private person.”
Furthermore, the private person
may arrest without warrant any
person whom he reasonably
suspects of having committed any
of the offences mentioned above,
provided that an offence of that
nature has in fact been
committed.
From the facts of this case, the
offence was allegedly committed
in June, 2008. However, the
defendants arrested the
plaintiff on 26-09-2009. So,
obviously, this arrest fails to
meet the first litmus test of “arrest
of a person who in his presence,
commits an offence”.
The second litmus test is
whether the defendants arrested
the plaintiff on
reasonable suspicion that he
committed the offence.
The evidence on record from the
defendants in relation to the
suspicion that the plaintiff
stole money from the customer’s
account is that he assisted the
customer with an identification
number to withdraw money from
her account when she lost her
number. However, the defendants
falsified their own evidence
when their Legon Branch Manager
testified that it is not
possible to use an
identification number without
the ATM card and vice versa to
withdraw money from the ATM.
With this evidence, the
defendants cannot be heard to
say that they reasonably
suspected the plaintiff to have
withdrawn money from the
customer’s account. So, the
defendant again failed this
litmus test.
Following from the above, it is
clear that, in fact and in
law, the defendants unlawfully
arrested the plaintiff on
26-09-2008 in their
premises and then handed him
over to the police.
2. Whether or not the
defendants violated the
plaintiff’s human rights.
Article 14(1) of the 1992
Constitution of Ghana guarantees
the right to personal liberty to
everybody in Ghana and a person
could only be deprived of his
personal liberty in the
following instances:
(a)
in execution of a sentence or
order of a court in respect of a
criminal offence of which he has
been convicted;
(b)
in execution of an order of a
court punishing him for contempt
of court;
(c)
for the purpose of bringing him
before a court in execution of
an order of a court;
(d)
in the case of a person
suffering from an infectious
contagious disease, a person of
unsound mind, a person addicted
to drugs or alcohol or a
vagrant, for the purpose of his
care or treatment or the
protection of the community;
(e)
for the purpose of the education
or welfare of a person who has
not attained the age of eighteen
years;
(f)
for the purpose of preventing
the unlawful entry of that
person into Ghana, or effecting
the expulsion, extradition or
other lawful removal of that
person from Ghana or for the
purpose of restricting that
person while he is being
conveyed through Ghana in the
course of his extradition or
removal from one country to
another;
(g)
upon reasonable suspicion of his
having committed or being about
to commit a criminal offence
under the laws of Ghana.
From the facts of this case,
none of the above instances
exists to warrant the defendants
depriving the plaintiff of his
right to personal liberty. The
defendants by their arrest of
the plaintiff, have violated his
fundamental human rights to
personal liberty as guaranteed
by article 14 (1) of the
Constitution.
3. Whether or not the
police investigations exonerated
the plaintiff from the
allegations leveled against him.
The allegations leveled against
the plaintiff are contained in
the letter the defendants wrote
to the police C.I.D.
headquarters dated 28-09-2008
(Exhibit D). The allegations
contained in Exhibit D are that
the plaintiff is suspected to
have manipulated some customers’
accounts through the ATM.
The police after their
investigations issued a report
(Exhibit C). The police report
concluded as follows:
“Evidence gathered in the
case did not suggest any
complicity on the part of
Desmond Adu.”
It is obvious that this
conclusive report of the police
exonerated the plaintiff of the
accusations leveled against him.
4. Whether or not the
defendants’ actions damages the
plaintiff’s image and reputation.
This issue is about whether the
plaintiff has a cause of action
in defamation. In Parmiter
v. Couplands [1840] 6 M. & W.
108; 151 E. R. 340,
Baron Parke defined defamation
as a publication without
justification or lawful excuse,
calculated to injure the
reputation of another by
exposing him to hatred, ridicule
or attempt.
In Youssoupoff v. M. G. M.
Pictures [1934] 50 T. L. R. 581,
defamation was defined to
include words that may cause a
person to be shunned by others.
Furthermore, Lord Atkin, in
Tournier v. National
Provincial Bank [1924] 1. K. B.
461, also added that
defamation is constituted in a
situation in which words used
damage a person in his
profession or business or office
or trade.
Another test as to what could
constitute defamation is stated
by Lord Atkin again in Sim
v. Stretch [1936] 2 ALL E. R.
1237 where he stated
that a defamatory publication is
one in which words are used
which tend to lower the
plaintiff in the estimation of
right-thinking members of
society.
It is the case of the plaintiff
that the defendants called him a
thief for he stole a customer’s
money from her ATM. Certainly
nobody would want to associate
himself with a thief. So, to
call somebody a thief would let
people shun his company, he
would be exposed to hatred,
ridicule or contempt and his
image and reputation would be
negatively affected. This would
be defamatory if it is
published.
A matter is said to be published
if it is made known to someone
other than the person of whom it
is written or said. The
defendants, apart from
confronting the plaintiff with
the allegation of theft in which
case it is no publication, wrote
to the police informing them of
the allegation. The letter to
the police amounts to
publication of the defamatory
statement that the plaintiff is
a thief. However, this
publication was only to the
police. The claim by the
plaintiff that his colleague
service personnel and church
members heard of it could not
arise out of the publication to
the police. The only way they
could have heard it was through
eavesdropping for which the
defendants are not responsible –
See Huth v. Huth [1915] 3
K.B 32.
So, there is publication to the
police of the defamatory
allegation that the plaintiff
stole the money from a
customer’s account which, as the
police investigations reveal,
was false. But would that make
the defendants liable?
The publication of the
defamatory words, in the instant
case, is justifiable in the
sense that it is published in
circumstances of qualified
privilege. Qualified privilege
is defined by Baron Parke in
Too Good v. Spyring 149 E. R.
1044 thus:
“(the defendant is liable for a
defamatory publication) unless
it is fairly made by a person in
the discharge of some public or
private duty, whether legal or
moral, or in the conduct of his
own affairs, in matters where
his interest is concerned. If
fairly warranted by any
reasonable occasion or exigency,
and honestly made, such
communications are protected for
the common convenience and
welfare of society and the law
has not restricted the right to
make them within any narrow
limits.”
The above general statement of
the law has a number of
ramifications some of which are
words relating to matters of
common interest; words
protecting the interests of the
publisher; and public interest.
The plaintiff was in the service
of the 1st defendant
bank. The complainant is a
customer of the bank. The
allegation was one of theft
which is an offence. These facts
show that the allegations relate
to matters of common interest,
they also protect the interests
of the 1st defendant
bank and since an offence is
alleged to have been committed
it is of public interest that it
should be published to assist in
the apprehension and prosecution
of the plaintiff.
The publication by the
defendants of the allegation of
theft to the police is
privileged.
5.
Whether or not the
plaintiff is entitled to his
claims.
From the above, the plaintiff is
entitled to damages for his
unlawful arrest which
constitutes a violation of his
fundamental human right to
personal liberty. The
plaintiff’s claim for damages
for defamation lacks merit and
is hereby dismissed.
By way of damages for his
unlawful arrest, I take into
consideration that the
defendants acted to protect the
interest of their customer
although they acted wrongfully.
The defendants handed over the
plaintiff to the police soon
after his arrest to conduct
their own investigations. The
plaintiff was released on bail
the same day. The plaintiff is,
therefore, not entitled to any
punitive or aggravated damages.
Accordingly, I award the
plaintiff GH¢10,000.00 as
damages. He is also awarded cost
of GH¢2,000.00.
COUNSEL:
1. Mr. L. N. S. Akuetteh for
Plaintiff.
2. Mr. A. T. Tamakloe for
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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