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Libel –
Defamation - Damage to
reputation - Malicious and
reckless publication –
Retraction of the offending
publication with an apology -
Order 57 rule 2, , Order 81 -
High Court (Civil Procedure)
Rules, 2004, C.I. 47- Whether
plaintiff is required to give
the particulars of the libelous
publication complained of in the
indorsement to the writ –
Whether or not the defendant was
to raise any objection in the
proceedings.- Whether or not
plaintiff has been involved in
any wrong doing whilst in the
employment of the defendant -
Whether or not at any material
time, plaintiff described
himself as BENOD.- Whether or
not plaintiff has acquired any
worldwide reputation
HEADNOTES
The
defendant, caused a publication
to be made in the Daily Graphic.
A passport sized photograph of
the
plaintiff/appellant/respondent,
hereinafter called the
plaintiff, was attached thereto
and the publication concerned
the plaintiff and it was a
discliarmer that the piaintiff
former Manager of the shop of
the defendant longer works with
the shop and any transaction on
behalf of the defendants shop
with institutions, companies,
shops, and individuals by Mr
Eric Kwame Amoah is null and
void. Any company which goes
into contract with him do so at
their own risk. The above
publication was repeated in the
November 12, 2009 edition of the
Daily Graphic. It is this
publication that gave rise to
the action before the High Court
that has resulted in the appeal
before this court. The plaintiff
complains that the said
publication has damaged his
reputation and has also
diminished his chances of
finding employment on the job
market. Hence the reliefs
endorsed on the writ of summons,
namely: The facts of the case
which are largely not in dispute
are the following. The defendant
is the owner of a business that
operates under the business name
BENOD Machine Shop. The
defendant ordinarily resides in
Germany. Sometime in the year
1990, the defendant employed the
services of the plaintiff in his
Accra residence and in January
1997 the defendant entrusted the
management of this business,
Benod Machine Shop, to the
plaintiff. From all accounts the
plaintiff performed to the
satisfaction of the defendant.
During the night of November 17,
2007 an unfortunate incident
occurred at the business
premises: there was fire
outbreak which completely
destroyed the business
premises. The defendant was
then out of the country but he
returned home so soon
thereafter. Upon his return the
defendant suspected arson and
decided to get the perpetrator/s
of the act. He resorted to all
means possible principally by
consulting spiritualists but no
name of any perpetrator came up.
He returned to Germany with
intent to rebuild his lost
business from scratch. It was
about a year later the defendant
is alleged to have accused the
plaintiff of embezzling funds
due to the business and then
setting the business premises
ablaze. Consequently, the
defendant proceeded to dismiss
the plaintiff instantly and also
ejected him forthwith from the
residence given to him to occupy
as part of his service
conditions. It was about a year
after the defendant had
dismissed the plaintiff from the
employment and ejected him from
the residence he was occupying
that the defendant caused the
two publications in the Daily
Graphic The trial High Court
dismissed the plaintiff’s claim
on ground that the publication
was justified in the sense that
the defendant just sought to
protect his business interest.
The plaintiff appealed to the
Court of Appeal, which allowed
the appeal,and the Court of
Appeal found evidence of malice
and recklessness in the
publication and evidence on
record and concluded the
publication was defamatory of
the plaintiff. The court awarded
general damages in the sum of GH₵50,000.00
in favour of the plaintiff plus
costs Being dissatisfied with
the judgment of the Court of
Appeal, the defendant appealed
to this court on
HELD
Thus the
establishment of principles of
law and equity are the bedrock
of judicial precedent. Hence
there is the need for a superior
court to state the principles
clearly and back them up
appropriately. This is enough
for this point which from the
foregoing discussions has had no
effect on our decision in this
case. It is for the foregoing
reasons that we conclude the
Court of Appeal erred in setting
aside the judgment of the High
Court. We uphold the appeal and
set aside the judgment of the
Court of Appeal and all the
orders made therein.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules, 2004,
C.I. 47.
Evidence
Decree, 1975 N.R.C.D 323.
CASES
REFERRED TO IN JUDGMENT
Tuakwa v.
Bosom (2001-2002) SCGLR 61
Attorney-General v. Faroe
Atlantic Co. Ltd. (2005-2006)
SCGLR 271
Turner v.
Metro-Goldwyn-Meyer Pictures,
Limited (1950) 1 All ER 449.
Jones v.
Skelton (1963) 1 W.L.R. 1362
Angel v. HH
Bushell & Co. Ltd. (1968) 1 Q.B.
813; (1967) 1 All ER 1018
Daily
Telegraph v. Associated
Newspapers Ltd. (1964) AC 234 at
p. 280.
Osborne to
Rowlett (1880) 13 Ch. D. 774; 49
L.J. Ch. 310; 42 L.T. 650; 28
W.R. 365
G. & C.
Kreglinger v. New Patagonia Meat
& Cold Storage Co. Ltd. (1914)
A.C 25; 83 L.J.Ch. 79; 30 T.L.R.
114 where
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England, 4th
edn. (reissue) vol. 28, para. 10
Winfield and
Jolowicz on Tort 18th
edn.
DELIVERING
THE LEADING JUDGMENT
BENIN,JSC:-
COUNSEL
AYIKOI OTOO
ESQ. FOR THE
DEFENDANT/RESPONDENT/ APPELLANT.
FELIX
QUARTEY ESQ. FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
JUDGMENT
BENIN,JSC:-
On October
19, 2009, the
defendant/respondent/appellant,
hereinafter called the
defendant, caused a publication
to be made in the Daily Graphic.
A passport sized photograph of
the
plaintiff/appellant/respondent,
hereinafter called the
plaintiff, was attached thereto
and the publication concerned
the plaintiff. It read:
‘DISCLAIMER
BENOD MACHINE
SHOP
MR ERIC KWAME
AMOAH, former Manager of the
above named shop no longer works
with the shop.
Any
transaction on behalf of the
above named shop with
institutions, companies, shops,
and individuals by Mr Eric Kwame
Amoah is null and void.
Any company
which goes into contract with
him do(sic) so at their own
risk.
By: Managing
Director
BENOD Machine
Shop
Ben
Owusu-Domena’
The above
publication was repeated in the
November 12, 2009 edition of the
Daily Graphic. It is this
publication that gave rise to
the action before the High Court
that has resulted in the appeal
before this court. The plaintiff
complains that the said
publication has damaged his
reputation and has also
diminished his chances of
finding employment on the job
market. Hence the reliefs
endorsed on the writ of summons,
namely:
1.
Declaration that the publication
caused by the defendant in the
Daily Graphic concerning the
plaintiff is malicious and
reckless.
2.
Punitive and exemplary damages
against the defendant for the
malicious and reckless
publication.
3.
An
order directed at the defendant
to retract the offending
publication in the same medium
over the same number of times of
the publication together with an
apology.
The
indorsement raised no claim
known in tort. Though the
category of torts is not closed,
yet malice or recklessness is
not a tortuous liability per se,
it must be pleaded in relation
to a specific tort. Thus the
plaintiff is required to give
the particulars of the libelous
publication complained of in the
indorsement to the writ as
required by Order 57 rule 2 of
the High Court (Civil Procedure)
Rules, 2004, C.I. 47. And if he
desires to do so in the
statement of claim he must seek
to amend the indorsement on the
writ. The plaintiff did not
comply with this provision in
the rules and yet the defendant
did not raise any objection in
the proceedings. However, Order
81 of C.I. 47 has taken care of
such non compliance especially
where the defendant did not
complain and participated fully
in the proceedings. Therefore
the particulars of the
publication which were detailed
in the statement of claim would
be deemed to have cured the
defect in the indorsement.
The facts of
the case which are largely not
in dispute are the following.
The defendant is the owner of a
business that operates under the
business name BENOD Machine
Shop. The defendant ordinarily
resides in Germany. Sometime in
the year 1990, the defendant
employed the services of the
plaintiff in his Accra residence
and in January 1997 the
defendant entrusted the
management of this business,
Benod Machine Shop, to the
plaintiff. From all accounts the
plaintiff performed to the
satisfaction of the defendant.
During the night of November 17,
2007 an unfortunate incident
occurred at the business
premises: there was fire
outbreak which completely
destroyed the business
premises. The defendant was
then out of the country but he
returned home so soon
thereafter. Upon his return the
defendant suspected arson and
decided to get the perpetrator/s
of the act. He resorted to all
means possible principally by
consulting spiritualists but no
name of any perpetrator came up.
He returned to Germany with
intent to rebuild his lost
business from scratch. It was
about a year later the defendant
is alleged to have accused the
plaintiff of embezzling funds
due to the business and then
setting the business premises
ablaze. Consequently, the
defendant proceeded to dismiss
the plaintiff instantly and also
ejected him forthwith from the
residence given to him to occupy
as part of his service
conditions.
It was about
a year after the defendant had
dismissed the plaintiff from the
employment and ejected him from
the residence he was occupying
that the defendant caused the
two publications in the Daily
Graphic. The plaintiff claimed
that the offending publication
was maliciously and recklessly
made and calculated to tarnish
his hard won reputation in the
eyes of Civil Society and their
industry players. The last part
of the publication was intended
to cripple his ability to engage
in any gainful employment or
contract to earn a living, as
per paragraphs 16 and 17 of the
statement of claim. The
plaintiff listed a number of
companies and public
institutions both local and
international, with which he had
had interactions in the course
of doing business with them on
behalf of Benod Machine Shop.
Hence the publication had
damaged his reputation
worldwide, plaintiff averred.
The plaintiff averred also that
the defendant caused
Melcom/Century Stores to photo
frame and hang the offending
publication in their factory
thereby giving it wider local
circulation. The defendant also
went to KGM industries and gave
the staff copies of the
publication, telling them the
plaintiff had stolen his money
and built houses and bought cars
with it.
In his
statement of defence, the
defendant denied the charges of
malice and recklessness
attributed to him by the
plaintiff. He rejected the
plaintiff’s claims and pleaded
justification instead. The
material averments are contained
in paragraphs 15 to 18 of the
statement of defence. They
provide:
15.
…….defendant states that he made
the publication in the Daily
Graphic because he went to
solicit for jobs at Melcom and
KGM and found out that the
plaintiff was known and referred
to by the said companies as
BENOD.
16. The
defendant contends further that
he has to convince the staff of
the said companies that he is
the owner of the BENOD Machine
Shop and that BENOD is the
acronym for BEN OWUSU DOMENA.
17. Defendant
contends further that since the
plaintiff was no longer in his
employment, he had to give
public notice in the media to
prevent any of his customers
from dealing with the plaintiff
hence the publication is neither
reckless nor malicious.
18. Defendant
states further that he also made
the publication to protect his
company from individuals,
institutions and companies who
will deal with the plaintiff in
the honest belief that they are
dealing with BENOD Machine Shop
more especially when his shop is
a sole proprietorship.
At the
summons for directions, all the
core issues were identified by
the parties. The plaintiff filed
eight issues and the defendant
added three. The issues put
together are:
1.
Whether or not plaintiff has
been involved in any wrong doing
whilst in the employment of the
defendant.
2.
Whether or not the publication
caused by the defendant in the
Daily Graphic was malicious and
reckless.
3.
Whether or not the last
paragraph of
the…..publication…will deny the
plaintiff the opportunity to be
engaged by an employer or enter
into a contract with any firm to
earn a living.
4.
Whether or not at any material
time, plaintiff described
himself as BENOD.
5.
Whether or not the defendant
accused plaintiff of having
embezzled money and arson.
6.
Whether or not in spite of the
publication defendant has
personally continually made
representations of malice
against the plaintiff to some of
the companies.
7.
Whether or not the publication
has injured the reputation of
the plaintiff.
8.
Whether or not the plaintiff is
entitled to the reliefs sought.
9.
Whether or not plaintiff has
acquired any worldwide
reputation.
10.
Whether or not plaintiff acted
on behalf of BENOD in his
dealings with companies
mentioned in the statement of
claim.
11.
Any
other issues arising out of the
pleadings.
The plaintiff
testified by himself and called
a witness, one S. K. Owusu who
is his brother. The defendant
testified by himself but called
no witness. The trial High Court
dismissed the plaintiff’s claim
on ground that the publication
was justified in the sense that
the defendant just sought to
protect his business interest.
The court held that the third
paragraph of the publication
which the plaintiff dwelt upon
did not on its own create any
wrong impression about the
plaintiff. No malice or
recklessness could be imputed
from that, the trial court
concluded.
The plaintiff
appealed to the Court of Appeal,
which allowed the appeal, on 31st
July 2012. Among others, the
Court of Appeal found evidence
of malice and recklessness in
the publication and evidence on
record and concluded the
publication was defamatory of
the plaintiff. The court awarded
general damages in the sum of
GH₵50,000.00 in favour of the
plaintiff plus costs.
Being
dissatisfied with the judgment
of the Court of Appeal, the
defendant appealed to this court
on only one ground that the
judgment is against the weight
of evidence. The sole ground of
appeal throws up the case for a
fresh consideration of all the
facts and law by the appellate
court. We are aware of this
court’s decision in Tuakwa v.
Bosom (2001-2002) SCGLR 61 on
what the court is expected to do
when the ground of appeal is
that the judgment is against the
weight of evidence. it has
erroneously been cited as laying
down the law that when an appeal
is based on the ground that the
judgment is against the weight
of evidence then only matters of
fact may be addressed upon.
Sometimes a decision on facts
depends on what the law is on
the point or issue. And even the
process of finding out whether a
party has discharged the burden
of persuasion or producing
evidence is a matter of law.
Thus when the appeal is based on
the omnibus ground that the
judgment is against the weight
of evidence, both factual and
legal arguments could be made
where the legal arguments would
help advance or facilitate a
determination of the factual
matters. This court’s decision
in Attorney-General v. Faroe
Atlantic Co. Ltd. (2005-2006)
SCGLR 271 at p. 306 per Wood JSC
(as she then was) cited by
Counsel for the respondent is
apt on this point.
Arguments by
Counsel for the
defendant/respondent/appellant
Counsel for
the defendant faulted the Court
of Appeal for not citing any
authority for all the principles
they applied to the facts. He
argued that in the absence of
any local authorities the court
should have considered common
law and text writers as helpful
and better guide than merely
stating legal principles without
citing any authority to back
them.
Counsel also
faulted the Court of Appeal
holding at page 148 that “the
trial court erred seriously when
it took the position that the
Plaintiff had abandoned the
first two paragraphs and was
relying solely on the third
paragraph to make his case.”
Counsel said the High Court did
not do what was attributed to it
because it held that “………taken
in isolation, the paragraph
complained of by the plaintiff
is totally meaningless……….one
cannot look at only paragraph 3
of the said publication and
derive any meaningful
understanding of that
publication. To be meaningful,
paragraph 3 must be read
together with the first and the
second paragraphs of the
publication.”
Arguments by
Counsel for the
plaintiff/appellant/respondent
Counsel
agreed that the publication must
be considered as a whole in
accord with the basic and
fundamental principle of
construing documents. Counsel
referred to the fact that in
this case the plaintiff relied
upon actual malice against the
defendant and submitted it would
suffice if the party alleging
malice is able to prove spite or
ill will or indirect motive on
the part of the other party in
the publication. He cited the
case of Turner v.
Metro-Goldwyn-Meyer Pictures,
Limited (1950) 1 All ER 449.
Counsel submitted also that the
publication must be considered
in the light of the prevailing
circumstances both before and
after the publication, and when
this is done the court would
come to the conclusion that the
appellant was influenced by
malice and acted recklessly. In
this regard Counsel recounted
the facts in evidence in
arriving at his conclusions.
What
constitutes defamation has been
the subject of several
interpretations by Judges,
Academics and Commentators
alike. It is an endless exercise
to attempt a single definition
that will capture all facets of
the tort. For the present case
the definition proffered by the
editors of Halsbury’s Laws of
England, 4th edn.
(reissue) vol. 28, para. 10 is
appropriate. It provides: ‘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.’
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
edn. at page 584, para. 12-15
described as the ‘natural and
ordinary meaning’ of the words
published. The learned authors
cited the case of Jones v.
Skelton (1963) 1 W.L.R. 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.”
Next, the
defamation complained of may be
established from the prevailing
facts and/or circumstances.
Proof of either of these will
suffice for the plaintiff.
For his part
the defendant could raise in his
defence priviledge, whether
absolute or qualified, and/or
fair comment. But these defences
of qualified priviledge and fair
comment will be defeated if
actual malice is established.
Malice in such matters will be
said to exist if there is spite
or ill will on the part of the
defendant or if the court finds
indirect and improper motive
against the defendant in
publishing the words complained
of. Thus in Angel v. HH Bushell
& Co. Ltd. (1968) 1 Q.B. 813;
(1967) 1 All ER 1018 a
defamatory letter was found to
have been motivated by anger,
not by duty or any interest, so
a defence of qualified
priviledge failed.
Thus 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
and/or circumstances surrounding
the publication, it was
defamatory of him, the
plaintiff;
v.
If the
defendant seeks qualified
priviledge or fair comment, that
the defendant was actuated by
malice. Absolute priviledge does
not apply here since that deals
largely with matters in the
public interest and those
provided by statute.
There is no
dispute there was publication in
the Daily Graphic. There is also
no dispute the publication
concerned the plaintiff whose
name was mentioned and so too
was his picture affixed to the
publication. Was the said
publication when read as a whole
capable of a defamatory meaning,
in other words, when taken in
its natural and ordinary sense?
The
defendant’s position was that
the publication was justified in
the sense that it was necessary
to protect the business.
Following the rehabilitation of
the factory after the fire
outbreak, the defendant began to
source for business. But
according to him wherever he
went people only knew the
plaintiff who had become
synonymous with BENOD. It was
with intent to correct this
false impression that he caused
the publications.
It must be
pointed out from the onset that
it is not what the defendant
intended that matters but what
the words can reasonably be
understood as conveying. As
stated in Halsbury’s Laws of
England, 4th edn.
(Reissue) vol. 28 page 23, para.
44 ‘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.’ On
the same point Lord Devlin
stated that “the other
respect is that the natural and
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 innuendoes as
could reasonably be read into
them by the ordinary
man.” That was in the case
of Daily Telegraph v. Associated
Newspapers Ltd. (1964) AC 234 at
p. 280.
We thus have
to look at the ordinary and
natural meaning of the words
contained in the publication to
start with. When read as a
whole, the only inference that
could be drawn from the
publication was that the
defendant was advising all
persons, both corporate and
human, from transacting any
business or contract with the
plaintiff on behalf of Benod
Machine Shop, as same would be
null, void and risky. Paragraph
3 cannot be considered in
isolation as the plaintiff
wanted the court to do, as it
flows directly from the
preceding paragraphs.
Secondly, it
is observed that the plaintiff’s
main case was focused on the
fact that the defendant’s act
was actuated by malice and
recklessness, which the
defendant vehemently denied. The
facts pleaded by the plaintiff
were that the defendant accused
him of having embezzled funds
and setting the factory ablaze.
The defendant proceeded to
terminate his appointment and
eject him from the official
accommodation. All these
material averments were denied
by the defendant in his
statement of defence. Thus the
plaintiff assumed the burden of
producing evidence as well as
the burden of persuasion by
virtue of sections 10 11(1)(4)
and 14 of the Evidence Decree,
1975 N.R.C.D 323. The Court of
Appeal reviewed the evidence and
concluded that the plaintiff had
discharged the evidential burden
on him.
The plaintiff
is required by the provisions of
Order 57 rule 3 of C.I. 47 to
give particulars of the facts
and matters on which he relies
in support of the sense in which
he understood the publication.
Thus a plaintiff must plead what
meaning he attributes to the
statement in order that the
defendant may know what case he
has to meet.
After setting
out the publication in paragraph
14 of the statement of claim,
the plaintiff pleaded material
facts in paragraphs 16 and 17 to
underscore what he understood
the publication to mean. They
provide:
16. The
plaintiff contends….that the
offending publication is
malicious and reckless and
calculated to tarnish the hard
won reputation of the plaintiff
in the eyes of Civil Society and
their industry players.
17. The
plaintiff will contend that the
last paragraph of the
publication was calculated to
cripple his ability to engage in
any gainful employment or
contract to earn a living.
It is clear
the plaintiff was relying on
facts and circumstances of the
case to establish the libel
especially in the light of his
plea that the defendant had
accused him of embezzlement and
arson prior to the publication.
This is what the law recognizes
as innuendo. In the legal sense
innuendo will arise only where
the alleged defamatory matter
depends upon facts and/or
circumstances that are not
within general knowledge but are
known to the persons to whom the
words were published.
The
plaintiff’s case devolved around
three matters, namely, that the
plaintiff dismissed him from the
employment and then ejected him
from the duty post residence and
finally and most serious of all
that the defendant accused him
of embezzlement and arson. His
view was that the publication
was reckless and actuated by
malice.
Let us start
with a consideration of the
plaintiff’s claim that the
defendant accused him of
embezzlement and arson; in the
sense that having embezzled the
funds belonging to the business
the plaintiff burnt down the
factory. Thus it was with this
state of malice that the
defendant dismissed him from the
employment and ejected him from
the official residence and
caused the publication to be
made.
We would then
have to consider whether the
persons to whom the publication
was made understand it the way
the plaintiff claimed. This is a
matter of fact which thus called
for evidence to prove on a
balance of probabilities. There
were two issues raised, first
the effect on his worldwide
reputation, and second, the
effect on his ability to secure
a job or contract. All these
facts are interwoven and will
thus be considered together.
The sole
witness called by the plaintiff
was his own brother S. K. Owusu
who testified as PW 1. Counsel
for the defendant sought to make
capital out of the fact that PW1
is the blood brother of the
plaintiff and said “no other
witness was called so there is
no proper corroboration of the
plaintiff’s case.” At the
hearing counsel was asked
whether corroboration was
required in a civil trial and he
answered that what he meant was
that the plaintiff’s case was
not supported. So be it. The
position of the law makes PW1 a
competent witness within the
meaning of sections 58 and 60(1)
of the Evidence Decree, 1975
(N.R.C.D. 323). These provisions
state:
58. Except as
otherwise provided by this
Decree, every person is
competent to be a witness and no
person is disqualified from
testifying to any matter.
60(1). A
witness may not testify to a
matter unless sufficient
evidence is introduced to
support a finding that he has
personal knowledge of the
matter.
A witness’s
close affinity to a party does
not disqualify him as a witness,
see section 61 of N.R.C.D. 323
nor does that fact render his
testimony any less credible than
that of any other witness. In
this case the relevant evidence
that is required is whether the
witness read the publication and
whether he was privy to facts
which led him to believe that
the publication was defamatory
of the plaintiff and was indeed
defamatory.
On the issue
of loss of reputation, the
plaintiff testified that during
the course of doing business for
the defendant he had come into
contact with several companies
both local and international so
the publication had affected his
worldwide reputation. The issue
of reputation is one of fact. It
is the summation of facts, acts,
events, conduct etc from which
the esteem in which a person is
held by other persons is
adjudged. Thus unless the facts
speak for themselves from which
a negative effect on a person’s
reputation may be inferred, the
plaintiff must lead evidence to
prove the nature or kind of
reputation he had prior to the
publication and in what way it
has been affected by the
publication. Is it in relation
to his character, trade,
profession or what have you? For
instance when a person is said
to have visited a certain house
in a residential area several
times, it is not defamatory per
se, but to those who know the
house to be a brothel and is in
fact a brothel, the obvious
inference is that the visitor
has depraved morality which no
doubt casts a slur on a person’s
reputation. But where, as in
this case, the inference is not
so obvious, there must be
evidence by or on behalf of the
claimant to establish the
alleged defamation.
In the
pleadings the plaintiff listed a
large number of companies and
institutions, both local and
international that he claimed
had worked for on behalf of
BENOD. He claimed the defendant
had visited some of these
companies and disparaged him
there. But in evidence none of
the staff of these organisations
was called to testify.
It has been
observed that this is not a case
where the publication carries a
defamatory meaning per se. That
explains why the plaintiff tried
to establish his claim by facts
and/or circumstances surrounding
the events. This depends on
others who perceived or
understood the words to be
defamatory. As stated earlier
reputation is a matter of fact,
thus barely repeating the
averments will not suffice. At
page 61 of the record PW1 said
the publication was made by the
defendant to tarnish the image
of the plaintiff which the
defendant rejected. In what
sense did it injure the
plaintiff’s reputation? From the
evidence on record the best
inference that might be drawn in
respect of the plaintiff’s
reputation is his skill in
sourcing business from the
organizations listed in the
pleadings and his managerial
skills which he applied on his
job. Nobody came forward to say
that his reputation as a skilful
manager was impaired. Even the
Managing Director of Pepsi Cola
who the plaintiff said called
him about the publication was
not said to have been privy to
anything wrong between the
plaintiff and the defendant;
rather he enquired from the
plaintiff what was happening
between them. He only said he
had seen a disclaimer in the
Daily Graphic but he did not
make any adverse comment about
it. See page 23 of the record.
There was no
question about character either;
the closest to that was the
alleged accusation by the
defendant that the plaintiff
burnt down the factory and was
thus an arsonist. This is linked
to the issue of malice and
recklessness. The trial Judge
did not accept this. The trial
court could not be faulted
because if indeed the plaintiff
believed the plaintiff had
caused the incendiary at the
factory, it would be hard to
believe he would still keep him
at the factory for a year and
even involve him in the
reconstruction, as testified to
by the plaintiff himself and
also accommodate him for that
period after the arson. What the
defendant said was more probable
that they resorted to spiritual
help to find the culprit, if
any, a fact the plaintiff
himself admitted. And it is
significant to note that it was
even the plaintiff who knew the
persons who led them to the
various spiritualists near
Akwamufie and in the Volta
Region. The first person, a co
worker, was from the same town
as the plaintiff. Daniel who
took them to the Volta Region
was the plaintiff’s friend. It
is clear that despite the arson
the defendant still had faith in
the plaintiff and that is the
only explanation for allowing
the plaintiff to lead the way to
the spiritualists, to remain in
the business and assist in the
reconstruction and remain in the
official residence.
Besides, the
inference to be drawn from the
totality of the plaintiff’s
contradictory and inconsistent
evidence was that it was
unreliable and the court would
attach little or no weight to
it. In his evidence in chief the
plaintiff asserted positively
that the defendant accused him
of embezzlement and arson and
that same day 16th
November 2008 dismissed him and
ejected him forthwith from the
residence, on the instructions
of the defendant’s wife and that
the defendant refused to allow
him a few days to vacate.
However, in cross examination he
admitted that he did not leave
the house that same day but some
four days later. But
significantly he admitted that
he left the house on his own
volition in order to join his
family who were living
elsewhere. The following are
extracts from the cross
examination at pages 44, 45 and
46 of the record:
“Q-I am
putting it to you that it is not
true when you said the
defendant’s wife instructed him
to sack you from his house.
A-He told me
his wife was giving him pressure
because he had told him they are
bringing somebody from their
village so he needed to paint my
room so I should move out of the
room because that boy from the
village is also calling him and
asking him when he’s coming to
Accra.
Q-Did you
remember telling the defendant
that you need to go and spend
time with your children?
A-Yes. I told
him because his wife wouldn’t
want my family to live in their
house and I had lived in the
house for 18 years without my
wife and children. I always have
to visit them after work and go
to the house alone. So I told
him it is about time I move and
stay together with my family.
Q-Were you
married when you moved into the
house?
A-I
wasn’t…………..
Q-Do you
remember after you have told the
defendant that you intend to go
and stay with your family that
…the defendant came down to
Ghana?
A-Yes he was
in Germany when he called me and
I told him I want to move and
live with my family because I
have lived in the house for so
many years and he said that is
fine and he agreed to that.
Q-And for a
period of about one and half
months when he was in Ghana you
hadn’t made any attempt to move
from the house. Not so?
A-When I told
him this in Germany and he came
down to Ghana actually I had not
worked for one year so I wasn’t
having any money so I was even
expecting him to have told me
that since you’ve stayed with me
for 18 years I have this small
amount of money for you to rent
a place but nothing was coming
and I was also quite expecting
something from him but he never
did.
Q-And he told
you that it was better that you
move when I am around than for
you to move when I leave to
Germany, not so?
A-Yes, he
told me to wait till he comes
and he came and eventually I
moved in his presence.
Q-I am
telling you that the decision
for you to leave the house was
not at the instance of the
defendant or his wife. It was at
your own volition.
A-Yes. I have
told him this whilst he was in
Germany that when he comes I
would like to move and he said
fine so that I can have control
over my family.”
We have taken
pains to quote extensively from
the cross examination in respect
of the defendant’s departure
from the house. First he was
ejected forcibly when he was
summarily dismissed from the
employment. Next he was asked to
quit in order to make way for a
member of the defendant’s wife’s
family who was coming from the
village to occupy same. Lastly
he quit voluntarily in order to
be together with his family.
Which of these three
inconsistent and indeed
contradictory statements
represents the plaintiff’s
position as to why he left the
house? The last bit supports the
case of the defendant. Where a
party’s testimony is
inconsistent whilst that of his
opponent is consistent and finds
support from even that of his
opponent, the court must accept
the consistent story unless
there is very strong reason,
appearing on the record, to
decide otherwise. In this case
the cross examination clearly
supports the defendant’s case
that the plaintiff left the
house voluntarily when he left
the employment. Indeed it is
more probable than plaintiff’s
inconsistent story and it
accords more with reality that
since he was receiving no
payment for one year following
the fire outbreak the plaintiff
would move on with his life.
Thus even whilst the defendant
was still in Germany the
plaintiff told him he would want
to leave the house and expected
the defendant to give him some
money before leaving but the
defendant gave him nothing. Who
would fault the plaintiff for
not staying at post without pay
for one year, and with the
residence being duty post he
would have to vacate once he was
no longer in the employment.
That is the more probable
scenario. The defendant’s story
was thus acceptable on the
evidence and the trial court
could not be faulted. The
defendant left the employment
and the residence on his own
accord. He was not forced out so
the claim that he was dismissed
and forced out of the house
following allegation of
embezzlement and arson could not
be supported. The basis for his
claim of malice and recklessness
is thus unfounded.
There was
also no evidence from which to
draw a conclusion that the
publication had affected the
plaintiff in the job market.
Once again no other person
testified to that. This is one
of those cases which called for
evidence from person/s other
than the claimant, preferably by
their direct testimony or
indirectly through what such
other persons have said or
written about their perception
of the publication, subject to
the rules on hearsay. The
plaintiff named some companies
which framed and posted the
publication on their premises.
At best it amounted to further
publicity of the publication, as
rightly pleaded by the plaintiff
himself; this has its own legal
consequences, not necessary to
recall for this case. It cannot
be construed as affecting the
plaintiff’s ability to work for
or secure contract from those
companies or other persons. He
had not made any such attempt at
all so he could not draw any
negative conclusions.
Finally the
plaintiff made a rather feeble
attempt to make a case that his
own friends shunned him as a
result of the publication,
regarding him as an arsonist. If
this allegation is found true,
it would have afforded the
plaintiff a genuine case of
defamation since by being
considered an arsonist it has a
dent on his character and
reputation. For in law the true
test is not what the writer
meant but what the reader
understood by the words.
However, apart from a bare
assertion the plaintiff made no
attempt to develop this claim.
None of the unnamed and
unidentified friends was called;
indeed the record does not
indicate that he even made any
attempt to call any of them but
failed. And even assuming for
the sake of argument that they
were unwilling to come having
shunned his company, or were
simply unavailable, yet the
plaintiff could have called
another person who was aware
that his friends had shunned him
following the publication by way
of exception to the hearsay
rules. This is a matter of fact
so failure to produce evidence
is fatal to the plaintiff’s
case. Be that as it may it was
not pleaded and was thus not one
of the triable issues agreed
upon so this evidence should not
have been allowed to go in at
all. And having been let in,
albeit, inadvertently it was the
duty of the trial court to
expunge it from the record.
Let us sign
off by addressing a point raised
by counsel for the defendant in
his address. It was this that
the Court of Appeal ought not to
have relied upon principles of
law without citing any
references or authorities for
them. Counsel said a lot about
this but the totality of his
argument was that without any
references to support the
principles relied upon, the
court’s position could not be
supported especially when there
are other principles applicable
to the same case which are well
supported by text writers and
decided authorities. It is a
good point that Counsel raised,
but we must state that failure
to cite references by way of
authorities per se would not
warrant a decision of a court to
be set aside, if those
principles indeed exist in law
or equity. However, it is highly
desirable that every court, more
particularly superior courts,
must endeavour to support the
principles or doctrines upon
which their decisions on
questions of law rest. The
superior courts being courts
of record give decisions which
form part of the law of the land
for the time being until they
have been set aside by decisions
of other higher superior courts
in the hierarchy or by
legislation. Whilst it is the
primary duty of the courts to
dispense justice to litigants,
it is equally the traditional
function of the court to
dispense justice by an
exposition of the law. Well
reasoned and supported decisions
evoke public confidence in the
decisions of the court. The use
of authorities and decided cases
is the establishment of some
principle which the judge can
follow in deciding a case before
him. Thus the importance of
supporting the principles or
doctrines upon which a decision
is given cannot be over
emphasized. Jessel M.R. for
instance in the case of Osborne
to Rowlett (1880) 13 Ch. D. 774;
49 L.J. Ch. 310; 42 L.T. 650; 28
W.R. 365 took the position that
the only thing in a judge’s
decision that is binding as an
authority is the principle upon
which the case was decided. Lord
Haldane C. expressed similar
views in the case of G. & C.
Kreglinger v. New Patagonia Meat
& Cold Storage Co. Ltd. (1914)
A.C 25; 83 L.J.Ch. 79; 30 T.L.R.
114 where he said forcefully
that following previous
decisions which have laid down
clear principles is essential if
the law is to be preserved from
becoming unsettled and vague. He
went on to say that to look for
anything except the principle
established or recognized by
previous decisions is to weaken
and not to strengthen the
importance of judicial
precedent.
Thus the
establishment of principles of
law and equity are the bedrock
of judicial precedent. Hence
there is the need for a superior
court to state the principles
clearly and back them up
appropriately. This is enough
for this point which from the
foregoing discussions has had no
effect on our decision in this
case.
It is for the
foregoing reasons that we
conclude the Court of Appeal
erred in setting aside the
judgment of the High Court. We
uphold the appeal and set aside
the judgment of the Court of
Appeal and all the orders made
therein.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A.
ADINYIRA(MRS)
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO
BAMFO (MRS)
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