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SUIT NO. HRC 5/10

OHENEBA NTIM BARIMAH                                                                     - PLAINTIFF

VRS.

1. ADAKABRE FRIMPONG MANSO

2. JEFF KISSIEDU NYANTE

3. OHENENANA KWAME AMO

4. FRANK ABOAGYE JACKSON                                                            - DEFENDANTS

5. HOT 93.9 FM

6. FP COMMUNICATIONS

ALL OF H/NO. 40 FARRAR

AVENUE OPPOSITE STRAWBERRY, ACCRA

On 27-10-2009, the plaintiff, Oheneba Ntim Barimah, caused a writ to be issued in this court against the defendants herein, that is Adakabre Frimpong Manso and 5 Others, in which he claims the following:

(i)           General damages for defamation and violation of his fundamental human rights by the failure to protect the reputation, rights and freedoms of the plaintiff.

(ii)          Costs occasioned by this action.

(iii)        Such further equitable and just reliefs as the court may deem just.

The relevant facts which prompted the instant action are not so much in dispute. On 19-10-2009, the 1^st defendant, Adakabre Frimpong Manso, who was by then the host of HOT 93.9 FM radio station (the 5^th defendant) Morning Show programme between 7:00 a.m. and 9:00 a.m., held the programme. In the said programme, there was a review of a story carried out by the Informer Newspaper.

It is the case of the plaintiff that the 1^st defendant informed his listeners that he (the plaintiff) has impregnated a seventeen year old girl by name Beatrice Ofeibea when he knew or ought to have known that the story was false. This publication was repeated on HOT 93.9 FM’s mid-day news bulletin by the 3^rd defendant, Ohenenana Kwame Amo, who is the newscaster of the radio station. These publications about the plaintiff to him are libelous and untrue for they sought to question his moral character and professional competence and lowered his reputation in the estimation of right thinking members of the society generally.

According to the plaintiff, the next day after the publications, that is 20-10-2009, he brought the mother of the girl and the girl herself to the studio of HOT FM and there the girl denied that she knew the plaintiff whereupon the mother apologised to him and pleaded with the radio station listeners and Ghanaians to apologise to him on her behalf. In spite of this apology, the 1^st defendant, urged on by all the defendants, failed and refused to retract the libelous publication.

The plaintiff, therefore, instituted this action against the 1^st defendant as the host of the Morning Show programme, the 2^nd defendant, Jeff Kissiedu Nyante, as the producer of the said programme, the 3^rd defendant as the newscaster of the radio station, the 4^th defendant, Frank Aboagye Jackson, as the news editor of the radio station, the 5^th defendant as the employer of the 1^st to 4^th defendants and the 6^th defendant, FP Communications, as the owners of the 5^th defendant.

The defendants admit holding the Morning Show programme on 19-10-2009 in which they reviewed the Informer Newspaper which stated among other alleged facts that an NPP lawyer has impregnated a seventeen year old girl and impersonated the plaintiff in the process. The defendants deny publishing that the plaintiff indeed impregnated a seventeen year old girl.

The defendants further state that they gave the plaintiff all the time and opportunity to clear his name and to expose the perpetrator by interviewing the editor of the newspaper, the mother of/and the girl at the centre of the story. All the mentioned actors of the story were interviewed and some eventually apologized to the plaintiff on air through the medium provided by the defendants. In spite of this, the plaintiff thereafter came to the studios of the 5^th defendant and went on an insulting spree uttering defamatory words against especially the 1^st defendant.

The defendants, therefore, contend that the newspaper review, commentaries and news on the subject under reference were not defamatory of the plaintiff’s character and could not have injured his reputation under any circumstance.

At the application for directions, the following issues were set down for trial:

a.    Whether or not the words/statements complained of caused injury to the reputation of the plaintiff.

b.    Whether or not the 1^st, 2^nd, 3^rd and 4^th defendants authored the words/statements complained of.

c.    Whether or not there was publication of the said words/statements complained of by the 1^st, 2^nd, 3^rd and 4^th defendants.

d.    Whether or not the review of the story carried by the Informer Newspaper constituted re-publication of the words/statements complained of.

e.    Whether or not the 5^th and 6^th defendants are vicariously liable for the actions of the 1^st, 2^nd, 3^rd and 4^th defendants.

Before I proceed to deal with the above issues, I would want to comment on the procedure the plaintiff adopted in instituting this action. The procedure for instituting defamation actions is provided in Order 57 of the High Court (Civil Procedure) Rules 2004 (C.I. 47). Rule 2 of the said order states as follows:

“Before a writ is issued in an action for libel it shall be indorsed with a statement giving sufficient particulars of the publication in respect of which the action is brought to enable them to be identified.”

As it is obvious in the endorsement on the plaintiff’s writ of summons, the plaintiff has not given any particulars of the publication in respect of which the action is brought to enable them to be identified. This offends against the procedure stipulated in Order 57 of C.I. 47.

What appears to be a statement of the particulars can be found in paragraph 10 of the statement of claim and partly in paragraph 2 of the reply. In paragraph 10 of the statement of claim the plaintiff avers as follows:

“The Plaintiff contends that in its edition of Monday 19^th day of October 2009 between the hours of 7 am and 9 am, the 1^st defendant, as host of the said Morning Show programme informed his listeners on the HOT 93.9 FM network that the Plaintiff has impregnated a seventeen year old girl, to wit one Beatrice Ofeibea …”

In paragraph 2 of the reply, the plaintiff also avers as follows:

“The plaintiff insists that paragraph 10 … of the Plaintiff’s Statement of Claim are true as contained in the news item read by the 3^rd Defendant which reads as follows: ‘… a seventeen year old girl drank love-water, enjoyed sexual wriggling of a man’s waist on the bed and became pregnant ... her parents called her, sat her down and questioned her to mention the man who impregnated her … this seventeen year old girl opened her mouth and said that the name the man who impregnated her mentioned to her is OHENEBA NTIM-BARIMAH, Ei! Is it the Oheneba Ntim-Barimah who is the Executive Director of Newstart For Health and works with Oman FM or another Oheneba Ntim-Barimah?

It is true that ‘Ketepo’ and ‘Odabo’ have semblance in their names but they don’t resemble each other in skin, and we have mouse and we have holy mouse, but when the allegation whirled like the pieces of the traditional ‘Nte Game’ on board, all eyes and hands turned and pointed Oheneba Ntim-Barimah, the Executive Director of Newstart For Health, as the one responsible for the pregnancy. … When the matter came before Oheneba Ntim Barimah, he tried and had time and took steps on the matter in the steps that he took, and because of evil deeds that every individual has a name that identifies him or her, another person’s name and face appeared in this matter that someone had gone to ‘launch’ his waist and coitally wriggled and vibrated his waist and buttocks on the girl and used Oheneba Ntim-Barimah’s face as cover-up and the steps that Oheneba Ntim-Barimah took in this pregnancy and revealed the truth that he was not the one who impregnated the girl but someone rather impregnated the girl.’ ” (Exhibit A).

It can be seen from the above that the plaintiff’s own averments are contradictory. In paragraph 10 of the statement of clam, the plaintiff averred positively that the 1^st defendant published in the Morning Show programme that he (the plaintiff) has impregnated Beatrice Ofeibea, a seventeen year old girl. The plaintiff averred further in paragraph 11 of the statement of claim that what the 1^st defendant published was repeated on HOT FM’s mid-day news bulletin by the 3^rd defendant. Then the plaintiff gave details of the said publication by the 1^st and 3^rd defendants in paragraph 2 of the reply, the relevant portions of which are quoted above. It can be seen from the details published that the 1^st and 3^rd defendants never published that the plaintiff impregnated a seventeen year old girl. Rather they published that somebody impregnated a seventeen year old girl and used the plaintiff’s name as a cover up and the plaintiff followed the story and confirmed that it was somebody else and not him who impregnated the girl.

So, the words/statements complained of by the plaintiff from his own showing is that the 1^st and 3^rd defendants published on 19-10-2009 that someone had impregnated one Beatrice Ofeibea, a seventeen years old girl and used the plaintiff as a cover up.

Furthermore, both parties admit in their pleadings and evidence that the 1^st defendant reviewed the Informer Newspaper on the Morning Show programme on 19-10-2009. The said Newspaper, Issue No. 73 of Monday 19-20 October, 2009 (Exhibit 1) had as its front page caption thus:

            “After Using ‘Oheneba Ntim Barimah’ Cover-up Name

            NPP LAWYER IMPREGNATES GIRL 17”

Then at page 6 of Exhibit 1 the reporters of the Newspaper, Andy Kankam and Benjamin Essuman stated among others thus:

“There comes a member of the over-sexually active men group, who desires the seventeen year-old girls in town. The self-acclaimed New Patriotic Party Lawyer (NPP) cum Social Commentator, Mr. Yaw Adomako Baafi, stands tall among them. He has today been caught to have not only bonked a 17 year old girl: he has perfectly done so and succeeded in impregnating the teenager.

…

Poor Beatrice Offiebea, a beautiful 17 year-old girl from Larteh, in the Eastern Region, has been impregnated by Mr. Adomako Baafi, a Politician cum Social Commentator, who describes himself as NPP-Lawyer.

…

The Informer found out that in order to outwit the parents and young Beatrice, Mr. Adomako Baafi usurped the name and credibility of the popular health crusader and radio personality, Mr. Ohene Ntim Barima. Mr. Baafi now turned ‘Oheneba Ntim Barimah’ then deceived everybody including the girl he professed to love.”

So, obviously the Informer Newspaper which the defendants reviewed on 19-10-2009 carried the story of how Mr. Adomako Baafi, a so-called NPP lawyer impregnated a seventeen year old girl and used the plaintiff’s name as a cover up. The defendants from the pleadings and evidence never at any point abandoned the story as carried by the Informer Newspaper and published that the plaintiff had impregnated a seventeen year old girl.

Now the first issue is whether or not the words/statements complained of caused injury to the reputation of the plaintiff. In other words, whether the publication, that is Exhibit A, as confirmed by Exhibit 1 is defamatory of the plaintiff.

Authorities on what constitutes defamation abound. I would hereunder state a few of them by adopting what has been ably provided me by counsel for both parties.

In SIM v. STRETCH [1936] 52 T.V.R. 669, Lord Atkin stated the law thus:

“Would the words tend to lower Mr. Sim in the estimation of right thinking members of the public generally? To allege defamation by libel … is to claim that there has been an invasion of plaintiff’s reputation by writing, printing, picture or other form of permanent publication (recording) resulting in the victim being exposed to hatred, contempt, ridicule, disgrace or damage to one or one’s business.”

Earlier on in PARMITER v. COUPLANDS [1840] 6 M. & W. at 108; 151 E.R. 340 defamation was defined by Baron Parke as a publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, ridicule or contempt.

In TOURNIER v. NATIONAL PROVINCIAL BANK [1924] 1 K.B. 461, Lord Atkin, again, defined defamation as any publication which damages or injures a person in his profession or business or office or trade.

What the defendants published as evidenced in Exhibits A and 1 is that someone impregnated a seventeen year old girl and used the plaintiff’s name as a cover up. Obviously, any person listening to or reading such a publication would know or understand that the plaintiff did not impregnate the seventeen year old girl. It was somebody who did that and that person from Exhibit 1 is Mr. Adomako Baafi. So, the publications by the defendants could not by any stretch of imagination have caused injury to the reputation of the plaintiff.

Following from the above, no useful purpose would be served in determining the other issues as the answers are obvious.

Accordingly, the plaintiff’s action is highly vexatious and same is hereby dismissed.

The 1^st defendant who contested the case throughout is awarded cost of GH¢3,000.00. Each of the other defendants is awarded cost of GH¢500.00.

COUNSEL:

1. Mr. Kwabena Konadu Yiadom for Plaintiff.

2. Mr. Eddie Roc for 1^st, 2^nd, 3^rd and 4^th Defendants.

3. Mr. David Boafo for the 5^th & 6^th Defendants.

(SGD.) UUTER PAUL DERY

JUSTICE OF THE HIGH COURT