2

Defamation - Slander - Publication - Repetition or republication of defamatory matter by plaintiff - Whether defendant liable.

False imprisonment - Arrest by police - Direction or authorisation - Defendant lodging complaint to police - Defendant leading police to plaintiff’s house and identifying him to police - Defendant not demanding or authorising arrest of plaintiff - Plaintiff arrested by police - Whether defendant liable for false imprisonment.

Malicious prosecution - Malice - Absence of reasonable and probable cause - Defendant withholding vital information in favour of plaintiff in complaint to police - Defendant liable for malicious prosecution.

Criminal law and procedure - Prosecution - Duties of prosecutor - Fairness in prosecution.

The defendant, a dealer in sugar, employed the plaintiff in his store. The plaintiff gave the defendant a loan to enable the defendant honour a cheque he had issued for which he had insufficient funds. When the plaintiff continued to demand repayment the defendant reported him to the police for stealing 55 bags of his sugar. The defendant took a policeman to the plaintiff’s house, identified him and the plaintiff was arrested, detained for some time and later prosecuted on a charge of stealing sugar. He was however acquitted and discharged. He then instituted an action for damages for malicious prosecution, false imprisonment, defamation and repayment of the loan with interest. At the hearing the plaintiff’s witness testified that the plaintiff had told him that the defendant had called him a thief and that he was charged at court; because of this the witness shunned the company of the plaintiff until he later heard that the plaintiff was acquitted and discharged. On the claim for false imprisonment the police officer who arrested the plaintiff said the defendant identified the plaintiff but could not recall that the defendant requested him to arrest the plaintiff. There was evidence on record that at the time that the defendant lodged the complaint, auditors appointed by him had submitted their report that showed a loss of 16 bags of sugar that the defendant accepted and settled and drinks were provided to stamp the acceptance. This fact was not made known to the police. After the complaint, the police appointed auditors to conduct an audit for the second time and this audit report formed the basis of the charge against the plaintiff. The defendant denied the claim and counterclaimed for the value of 39 bags of sugar which he gave to plaintiff for sale but for which plaintiff had failed to render account. The trial court dismissed the defendant’s counterclaim. On appeal counsel for the defendant submitted, inter alia, that the publication to the plaintiff’s witness was not the act of the defendant.

Held - (1) As a general principle of law a defendant was not liable for an unauthorised repetition or republication of defamatory matter. He who published his own defamation could not complain. The learned trial judge erred in relying on the evidence to sustain the claim for defamation. Ward v Weeks (1830) 7 Ring 2176, Wold Bundell v Stephens [1920] AC 956 cited.

(2) The authorities established that a person who authorised or directed the arrest or detention of another by a ministerial officer of the law made the officer his agent and he himself would be responsible for the arrest and detention. But in an action for false imprisonment actual direction and authorisation must be proved; mere information given to the officer on which he acted at his own discretion was no ground for liability. The evidence of the police officer was not convincing enough to establish a clear and express authorisation or demand by the defendant for the arrest and prosecution of the plaintiff. The claim for unlawful imprisonment would also be dismissed. Onogen v Leventis & Co Ltd [1959] GLR 105, Musa v Limo-Wulana [1975] 2 GLR 290, CA applied.

(3) There was evidence on record to support the finding by the learned trial judge of malicious prosecution. When the defendant lodged his complaint he had no ground to believe in the truth of the complaint; he had appointed auditors whose report showed a loss that was settled and drinks were provided to stamp the acceptance but this was not made known to the police. Yeboah v Boateng [1963] 1 GLR 182, Tewari v Singh [1908] 24, 7 LR 884, PC, Musa v Limo-Wulana [1975] 2 GLR 290 cited.

Obiter: It would appear that it was after the plaintiff’s arrest and detention at the police station that the police started to collect evidence against him. The law is that it is the duty of the prosecuting officer to be fair in his prosecution. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must disclose, if ordered, all the relevant authorities, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. Affail v The Republic [1975] 2 GLR 69, John Lewis & Co v Tims [1952] AC 676, Adejumo v Abegunde [1965] GLR 499 cited.

Cases referred to:

Adejumo v Abegunde [1965] GLR 499, SC.

Affail v Republic [1975] 2 GLR 69.

John Lewis & Co v Tims [1952] AC 676, [1952] 1 TLR 1132, [1952] 1 All ER 1203, HL.

Musa v Limo-Wulana [1975] 2 GLR 290, CA.

Onogen v Leventis & Co Ltd [1959] GLR 105.

Tewari v Singh (1908) 24 TLR 884, PC.

Ward v Weeks (1830) 7 Ring 217.

Wold Bundell v Stephens [1920] AC 956.

Yeboah v Boateng VII [1963] 1 GLR 182, SC.

APPEAL from the High Court, Ho.

AMMAH J. This is an appeal from the judgment of the High Court, Ho, dated 13 May 1988.

The plaintiff-respondent took action against the defendant-appellant for the following reliefs:

(a) ¢500,000 damages for malicious prosecution.

(b) ¢250,000 damages for false imprisonment.

(c) ¢250,000 for defamation; and

(d) the repayment of ¢100,000 with interest being loan granted to defendant which sum defendant has refused or failed to pay.

After hearing the case the learned trial judge gave judgment for the plaintiff on the reliefs (a), (b) and (c) with costs and ¢36,000 on relief (d) with interest. Dissatisfied with the judgment the defendant-appellant has appealed to this court.

The grounds of appeal are:

“(a) the judgment is against the weight of evidence.

(b) the learned trial judge has failed woefully in his sifting and evaluation of the evidence and thereby occasioning a very grave miscarriage of justice.

Further grounds to be filed on receipt of the proceedings.”

No additional grounds have so far been filed. Counsel for the defendant-appellant argued both original grounds together. The learned trial judge has referred to the facts in some detail in his judgment. I need not recapitulate them save the salient points.

The defendant-appellant was a businessman dealing in sugar at the time material to this case. About February 1986 he employed the plaintiff-respondent, at first as a store assistant and then as a store-keeper in one of his stores. At the defendant-appellant’s request, the plaintiff-respondent gave him a loan of ¢100,000 against a receipt exhibit A. This came about, according to the plaintiff-respondent, to enable the defendant-appellant meet a cheque of two million cedis he had issued for which he had insufficient funds. The defendant-appellant promised to pay this amount by the end of June 1986 but he failed to do so. When he continued to demand the money from the defendant-appellant, the latter reported him to Dzodze police for stealing 55 bags of sugar. The defendant-appellant brought a policeman to his house identified him, and said: “This is the man arrest him”. He was then arrested and taken to the police station at Dzodze where he was detained for some time. He was later arraigned before the Denu circuit court and prosecuted on a charge of stealing sugar. He was however acquitted and discharged at the end of the prosecution’s case. He thereafter instituted the present action.

The defendant-appellant denied the reliefs being claimed and counterclaimed against the plaintiff-respondent for ¢156,000 “being the value of 39 bags which defendant gave to plaintiff for sale but for which plaintiff has failed to account”. The plaintiff-respondent has denied the counterclaim. The defendant-appellant’s counterclaim was dismissed by the trial court.

For convenience, I would deal first with relief (c) i.e. “¢250,000 for defamation”. In this regard the plaintiff-respondent pleaded that defendant has soiled and damaged his reputation as an honest businessman in the area, where he has lost companionship of his friends because people accused him as a thief and a fraud. He himself gave similar evidence in court.

In support of this aspect of his case he called one Kofi Nkrumah, a driver from Takoradi, who said he got to know plaintiff-respondent through the latter’s senior brother.

Simply, this witness’s evidence was to the effect that one day, plaintiff-respondent came to inform him that defendant-appellant had accused him as a thief; he was thereafter charged before the Denu circuit court. Mr Kofi Nkrumah said because of this he shunned the company of the plaintiff-respondent until he later heard that the plaintiff-respondent had been acquitted and discharged by that court. Counsel for the defendant-appellant has referred to this evidence and other pieces of evidence with regard to this relief and rightly pointed out, in my view, that the publication referred to in the evidence, if anything at all, was not the act of the defendant-appellant to make him liable. The plaintiff-respondent also claims that the accusation caused him loss of reputation as a businessman. However the plaintiff-respondent admitted in cross-examination that during the pendency of the criminal investigation he was employed by another business-woman. This evidence belies his claim that the accusation lost him his respect as an honest businessman.

I am satisfied that learned counsel for the defendant-appellant’s contention is correct on the point. The learned trial judge was wrong in relying on such evidence to sustain the claim for defamation. The general principle of the law on this aspect is that the defendant is not generally liable for an unauthorised repetition or republication of defamatory matter: see Ward v Weeks (1830) 7 Ring 2176 approved in Wold Bundell v Stephens [1920] AC 956. He who publishes his own defamation cannot complain.

I would set aside the judgment on this relief and allow the appeal. I now deal with the claim for false imprisonment.

In Onogen v Leventis & Co Ltd [1959] GLR 105 at 106 it was held:

 “... a person who authorises or directs the arrest or detention of another by a merely ministerial officer of the law makes the officer his agent and he himself will be responsible for the arrest or detention. But in an action for false imprisonment actual direction or authorisation must be proved; mere information given to the officer, on which he acts at his own discretion, is no ground of liability.”

This principle of law has been approved in Musa v Limo-Wulana [1975] 2 GLR 290, CA.

It is therefore necessary to consider and examine the evidence on record whether or not there was a clear demand or request for the arrest and detention of the plaintiff. In this regard I find the evidence of the police investigating officer as very crucial and important. He said:

“During the arrest the defendant was present. Just before I arrested the plaintiff, the defendant identified the plaintiff to me. I cannot remember whether the defendant, after he identified the plaintiff, added some words ... I cannot say whether the defendant said: ‘Here is the man arrest him’. Maybe the defendant said: ‘Here is the man arrest him’.”

I have taken the view that the evidence-in-chief of Robert Asamoah, Detective Police Constable Class 1, appears equivocal and not convincing enough to establish a clear and express authorisation or demand by the defendant for the arrest and prosecution of the plaintiff as explained in Onogen’s case. There is evidence that the case had already been reported to the Denu Police and Police Constable Robert Asamoah was detailed by the Chief Inspector to investigate. That led him to the plaintiff-respondent’s arrest.

The trial judge, attached too much weight and was unduly influenced by the evidence of Police Constable Asamoah. The trial judge was wrong in the conclusion he arrived at on this relief. I would set aside the judgment on that relief (i.e. false imprisonment) and allow the appeal on it.

I come to malicious prosecution. The ingredients necessary or required to be established by the plaintiff are set out in Yeboah v Boateng VII [1963] 1 GLR 182 at 183. In this case there is evidence that at the time defendant-appellant reported to the police that plaintiff had stolen 127 bags of the sugar, which he had no ground to believe and was therefore false, he had at his request appointed auditors to audit the sugar and their report showed a loss of 16 bags. This was subsequently settled and accepted by the defendant-appellant and drinks were provided to stamp the acceptance. It is significant that this was not made known to the police when the report was made to them and when the prosecution of the plaintiff-respondent commenced; see Tewari v Singh (1908) 24 TLR 884, PC, cited with approval in Musa v Limo-Wulana [1975] 2 GLR 290 at 296.

The law is that it is the duty of the prosecuting officer to be fair in his prosecution. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must disclose, if ordered, all the relevant authorities, even those that are fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duty to the court; see Affail v Republic [1975] 2 GLR 69 at 80. That judgment also states at p 78 as follows on the prosecuting advocate:

“He must make sure that the evidence is relevant and admissible and presented without bias. He must also make sure that the evidence in favour of the prisoner is before the court and is given the same prominence and emphasis as the evidence tendered to show guilt.”

It is clear that after the plaintiff-respondent had been reported to the police for prosecution, the police appointed auditors to audit the bags of rice (the second time); it was then found that 55 bags of the rice could not be accounted for. It appears it was the second audit report which was made the basis of the charge against the plaintiff-respondent. It would appear it was after the plaintiff-respondent’s arrest and detention at the police station that the police started to collect evidence against him.

This conduct of the prosecution has been frowned upon and held unlawful; see John Lewis & Co v Tims approved in holding 3 of Adejumo v Abegunde [1965] GLR 499 at 500.

From what I have said, and the evidence referred to, I am satisfied there was evidence on record to support the finding by the learned trial judge of malicious prosecution as explained in detail at pages 186 et seq in the case of Yeboah v Boateng VII [1963] 1 GLR 182. The award of damages with costs is fair and reasonable. I would dismiss the appeal on the relief of malicious prosecution.

I now refer to the appeal on relief (d), the repayment of the ¢100,000. I have examined the evidence regarding that claim. In my view the trial judge’s evaluation of the evidence and his finding on it cannot be faulted and he is therefore right in his conclusion.

The appeal by the defendant-appellant in respect of relief (d) of the plaintiff’s claim is accordingly dismissed.

AMUAH JA. I agree.

FORSTER JA. I also agree.

Appeal allowed in part.

Kizito Beyuo, Legal Practitioner.