DARKO VRS. THE MULTIMEDIA GROUP LIMITED (GJ/0231/2021) [2024] GHAHC 407 (20 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION DIVISION, COURT 12) ACCRA, HELD ON THE 20TH DAY OF DECEMBER 2024 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH- TETTEH SUIT NO: GJ/0231/2021 MRS. DELESE MIMI DARKO - PLAINTIFF VRS THE MULTIMEDIA GROUP LIMITED - DEFENDANT ------------------------------------------------------------------------------------------ PARTIES: - PLAINTIFF PRESENT DEFENDANT REPRESENTED BY RAYMOND NII DOODO LARBI COUNSEL: - MR. DAVID KUDOADZI FOR PLAINTIFF MR SAMPSON LARDY AYENINI WITH MS. AMA GYAPOMAA NKUA AND MS AMESIKA APPREY FOR DEFENDANT. ----------------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------------- INTRODUCTION An intangible but priceless asset and possession of any human being is the respect, reputation and esteem he has from others. In the sociological set up of any society, Page 1 of 60 any human being is entitled to respect of his person and this is reciprocal. He is entitled to protect himself from being abused, insulted and disparaged with a view to lowering his reputation before right-thinking men of society, either orally or in writing. He is entitled to his good name. Therefore, if any person makes a publication which is injurious to that good name, the victim of that publication is entitled to seek a redress on defamation in a court of law. Tobi JCA in UBN Ltd v. Oredien [1992] 6 NWLR (PT 247) 355 CA at pg. 371 paras C-D, [1] This is a defamation claim brought by Mrs. Delese Mimi Darko (Plaintiff), Chief Executive Officer of Food and Drugs Authority (FDA) against The Multimedia Group (Defendant). The Multimedia Group is a registered entity under the laws of Ghana and among others operates an online news portal known as Myjoyonline.com. The Claim of the Plaintiff is in respect of the publication of an article entitled, “FDA reacts to JoyNews’.‘The Returned Bribe’ published on 12th November, 2020 on Defendant’s online portal. The Plaintiff claims this publication has defamed her and has come to this court for redress. [2] Defendant denies the claim of Plaintiff and contends that it has not defamed Plaintiff as the publication contained no falsehood and was not driven by malice and that Plaintiff’s reputation did not suffer due to the publication. Defendant further contends that the publication is justified, covered by qualified privilege and fair comment. [3] Plaintiff by her amended writ of summons dated 23rd June, 2023 and filed on the same day claims against Defendant the following reliefs: i. A declaration that Defendant’s publication title(d); ‘FDA reacts to JoyNews’ ‘The Return Bribe ‘documentary’. Page 2 of 60 “The food and Drugs Authority (FDA) reacts to JoyNews’ ‘The Returned Bribe’ documentary which alleges corruption and bribery at the Authority. In a press statement signed by the Board Chairman of FDA Dr. Sammy Ohene, he said the Board has set up a committee which is investigating the matter in its entirety earnestly. The statement further explained that “This matter came to the notice of the CEO in April 2020. The CEO immediately reported the matter to National Security which has since been conducting its investigations. “The CEO has reported the matter to the Board Chairman and the Administration is following its internal investigation and disciplinary processes.” The Board has, therefore, urged the general public to allow the Board and the appropriate investigative bodies to complete their investigations. “As a matured regulatory agency whose core value include transparency, fairness and integrity, the Authority reiterates its zero tolerance for bribery and corruption and reaffirms its commitment to protect the health and wellbeing of consumers,” the statement concluded. Background The CEO of the Food and Drugs Authority (FDA) and the head of Legal Affairs are being investigated for allegedly taking bribe from the manufacturer of COA FS. Professor Samuel Ato Duncan told investigative journalist Manasseh Azure Awuni that the head of the Legal Affairs, Cynthia Dapaah Ntow, demanded that he pays $100,000 so he will be given the green light to continue selling his product. In a telephone conversation, Mrs. Dapaah Ntow said she was taking the money on behalf of the Authority’s CEO, Delese Mimi Darko. Page 3 of 60 Meanwhile, the FDA has filed an injunction on the screening of the documentary on JoyNews. Is false, wicked, malicious and defamatory of Plaintiff. ii. A declaration that Defendant carried and aired on their platform an interview between Manasseh Azure Awuni and Professor Ato Duncan titled “The returned Bribe” in which the Executive President of COA-FS is heard to say that he considered the money he offered to be given to Plaintiff as “Bribe and Extortion” by Plaintiff, is false wicked, malicious and defamatory of Plaintiff. iii. A declaration that Plaintiff’s reputation has been injured by reason of the false, malicious, unjustifiable and reckless defamatory statement uttered by the Defendant. iv. An order of the honourable court directed at the Defendant to publish an unqualified retraction and an apology on their online Platform with the same prominence as the defamatory words received within 14 days after the judgement. v. An order of the honourable court for perpetual injunction restraining the defendant, its agents, assigns and servants from further publishing any defamatory words against the Plaintiff. vi. The sum of Two million Ghana cedis (Ghs2,000,000.00) as general damages against the Defendant. vii. Costs. PLAINTIFF’S PLEADINGS [4] The Plaintiff is the Chief Executive Officer of the FDA. It is the case of the Plaintiff that she graduated as a pharmacist, holds a Master’s degree in Business Administration and Page 4 of 60 is currently enrolled at the Kwame Nkrumah University of Science and Technology as a PhD student in the Department of Adult Education and Human Resource Studies. [5] According to Plaintiff, after 28 years of hard work at the FDA, she rose through the ranks and became the first female Chief Executive Officer. [6] The Plaintiff alleges that a documentary was done by a journalist, Manasseh Awuni Azure titled the ‘RETURNED Bribe’ in which the Executive President of COA-FS is heard saying that he saw the money he offered to be given to the Plaintiff as a bribe and extortion is defamatory. [7] In a recorded interview with the Executive President of the producers of COA-FS, he narrated how during events leading to the suspension of COA-FS from the market he asked for assistance from the Head of Legal of the FDA to keep his product from suspension. According to Plaintiff the said recorded interview was aired by Defendant - as an alleged bribe paid to enable the Executive President of COA-FS keep his product on the market. [8] It is the case of Plaintiff that on 13th November 2022, Defendant falsely and maliciously printed, published and posted an article on its online portal www.Myjoyonline.com.gh the defamatory headline as found in her relief (1) above. Plaintiff contends that by that publication; it was understood to mean that there was an ongoing criminal investigation against the person of Plaintiff as the Chief Executive Officer of FDA. [9] Plaintiff further contends that the natural and ordinary meaning of ‘Bribery’ together with the other words used in the body of the news item meant and were understood to mean that Plaintiff had engaged in criminal acts of bribery by getting her subordinate officer to demand and extort monies on her behalf from a manufacturer who appeared before FDA to certify his company’s products in accordance with statutory and regulatory requirements. Page 5 of 60 [10] Plaintiff further contends that by way of innuendo the words used in the body of the news item meant and were understood to mean that Plaintiff as a Chief Executive Officer would extort money or demand bribes from manufacturers before allowing products to be certified as fit for the market. [11] According to Plaintiff before the documentary was aired by the Defendant, the Board of FDA had already commenced investigations into the bribery allegations pursuant to Plaintiff’s report of her Head of Legal to the Board of Directors of FDA. [12] According to Plaintiff, she had never engaged in the activities alleged by Defendant and she is a principled and law-abiding Chief Executive Officer who does not compromise on the integrity and dignity of her office. It is the case of the Plaintiff that she is and has never been under any criminal investigation for bribery as the CEO of the FDA. [13] Plaintiff alleges that because of the publication of the said defamatory words she has been brought into public scandal, odium, contempt and ridicule and that Defendant acted maliciously in publishing the said defamatory words which were designed to cause hatred, ridicule and public disaffection towards her and the office she holds, and also to injure her hard-earned reputation. This is more so as Defendant deliberately decided to state that Plaintiff was under criminal investigation for bribery when Defendant was aware that Plaintiff directed the monies to be returned to the owner when she was informed about it. That Defendant knew and was aware that it was Plaintiff who upon hearing of the bribery, reported the matter to the National Security and caused investigation into the matter. Yet Defendant, deliberately skewed the story to make her appear to be the one under investigation and made her look bad and caused her public dissatisfaction. [15] Plaintiff further contends that Defendant acted maliciously in publishing the said defamatory words which were designed to cause hatred, ridicule and public disaffection Page 6 of 60 towards Plaintiff and the office she holds, and also to injure her hard-earned reputation, more especially Defendant knew or ought to have known that the story alleged it was the Head of Legal of FDA who invited the producer of the COA -FS and demanded money for the Chief Executive Officer at a time Plaintiff as the Chief Executive Officer had no prior knowledge about it. And yet Defendant skewed the story to reflect that it was Plaintiff that was demanding $1000,00 bribe through her subordinate. DEFEDANT’S PLEADINGS [16] Defendant denies the claim of the plaintiff and contends that the publication was not defamatory of the Plaintiff. According to Defendant, the journalist, Manasseh Azure Awuni had brought matters of the publication to the information and knowledge of the FDA long before the said publication and Defendant became aware of the investigations only after a committee had requested its assistance in the investigations said to have commenced after the publication at the instance of the Board of FDA. [17] The Defendant contends that the publication contained no falsehood or defamation and was not actuated by malice. That the publication/broadcast is not defamatory and the subject is not false but true and justified. [18] According to Defendant it has at all material times of investigating the subject matter exercised the highest standards of professional journalism to do a professional duty and constitutional obligation in the ultimate national interest without any motivation of malice whatsoever. [19] Defendant further contends that Plaintiff’s action is baseless, premature preemption and an unlawful and unconstitutional act to unlawfully fetter and frustrate the Republic of Ghana in executing the duty and obligations imposed by Article 35(8) of the Constitution as the results of such investigation broadcast/published by Defendant have always assisted the State in this duty. Page 7 of 60 [20] Defendant further contends that the statements complained of in the publication are not defamatory but matters of qualified privilege which Defendant has a corresponding or common interest or duty with the public to receive and broadcast. [21] Defendant contends further that any comments on the back of the publication or documentary are matters of public interest and that Defendant together with the public had a corresponding or common interest in the subject matters pursuant to Articles 21, 41 and 162 of the constitution 1992. ISSUES FOR DETERMINATION [22] At the close of pleadings, the following issues found in the memorandum of issues filed on 23 June 2023 were settled for the determination. I. Whether the complained publications are defamatory of the Plaintiff and have brought Plaintiff’s reputation into public scandal, odium, contempt and ridicule. II. Whether the Plaintiff was ever alleged to have demanded $100,000 through the Head of Legal Affairs from the manufacturers of COA-FS to enable him to continue selling his products. III. Whether the publication complained of on the online portal was twisted to reflect Plaintiff as a person under investigation for bribery allegation. IV. Whether the Plaintiff has been under any investigation for alleged bribery. V. Whether the word “bribery” together with the other words used in paragraph 13 of the second amended statement of claim were understood to mean that Plaintiff had been associated with criminal act of bribery allegation. VI. Whether the Plaintiff directed her subordinate to extort monies on her behalf from the Executive President of the COA-FS manufacturer. Page 8 of 60 VII. Whether the Defendant’s act of publication was actuated by malice to cause hatred, ridicule and public disaffection towards Plaintiff and the office she holds. VIII. Whether the publications are false. IX. Whether the complained publications are justified matters of qualified privilege, fair comment and in the public interest. [23] In proof of her case the Plaintiff testified and called no witness. She tendered Exhibits A, B, C, D, E, F, and G. The Defendant’s representative testified and called one witness and tendered Exhibits 1, 1A, 1B, 1C,1D, 2 ,2A,3 and 4 DEFAMATION [24] Defamation is a legal wrong that aims to protect an individual's reputation. For a statement to be considered defamatory, it must be shown that the published words carry a defamatory meaning to the average person or right thinking members of the society generally. Additionally, those words must have negatively impacted the reputation of the individual about whom the statement was made. [25] Black’s Law Dictionary Tenth Edition defines Defamation as follows: 1. Malicious or groundless harm to the reputation or good name of another by making of a false statement to a third person. 2. A false written or oral statement that damages another’s reputation. Defamatory matter is also defined as : A statement that (1) imputes a crime or official misconduct in public office to a person, (2) is likely to impair a person’s ability to perform in an occupation, calling, or office, or (3) exposes the person to general hatred, contempt, or ridicule. Page 9 of 60 And defamatory statement is defined as: a statement that tends to injure the reputation of a person referred to in it. The statement is likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear, or dislike. [26] The Courts have also defined defamation in various ways that throw more light on what it means to defame someone. In the case of Youssoupoff v. M.G.M Pictures [1934] 50 T.L.R 581 the definition of a defamatory material was said to be: if any man deliberately or maliciously publishes anything in writing concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him it is actionable. [27] In a similar manner, Lord Atkin in Sim v. Stretch [1936] 2 ALL ER 1237 at 1240 restated the definition of defamation as: Would the words tend to lower the Plaintiff in the estimation of the right thinking members of the society generally. [28] In the Ghanaian case of Abu v. BPI Bank [2014] 68 GMJ at 141-144 Osei JA on the meaning of defamatory words stated as follows: .. words are capable of being defamatory of a Plaintiff if they tend to hold him up to contempt, scorn or ridicule or if they turned to lower him in the estimation of right thinking members of the society generally, or if they cause him to be shunned or avoided. In the English case of Grubb v Bristol United Pres Limited [1962]2 All ER 380 at 392 one of the modes of establishing libel suggested by Lord Upjohn was proof that the words published were defamatory of the Plaintiff in their natural and ordinary meaning. Also, I find in the case of Lewis v Daily Telegraph [1963] 2 All ER 151, a passage in the opinion read by Lord Reid which, in my view , sheds Page 10 of 60 more light on how the natural and ordinary meaning of a publication is discovered. The passage is at page 154 of the report and is quoted hereunder: :… There is no doubt that in actions for libel the question is what the words would convey to the ordinary man, it is not one of construction in the legal sense. The ordinary man does not live in the Ivory Tower and he is not inhibited by knowledge of the rules of construction…” There is a clear suggestion from the above-quoted passage that, in determining whether a publication is libelous, an important consideration is what it will mean to the ordinary man. Where the words in the publication is libelous in themselves, as where the plaintiff has been called a thief or a murderer, making the determination is a straight exercise. But very often, libel does not lie in the meaning of the constituent words in the publication. It is discovered from what the ordinary man, reading the publication between the lines in the light of his general knowledge and experience of worldly affairs ascribe to it. The meaning the ordinary man infers, relying on his general knowledge and experience in worldly affairs, is the natural and ordinary meaning of the publication. The important question in the present case therefore is whether, having regard to the circumstances in which the publication in issue was made, an ordinary man who reads it is likely to understand it in the libelous sense. [29] Also, in the case of Owusu – Domena v Amoah [2015-2016] 1 SCGLR 790, in answering what constitutes defamation, the court per Benin JSC at page 801 of the report quoting Halsbury’s laws of England (4th ed),(reissue), stated thus: What constitutes defamation has been the subject of several interpretation by judges, academics and commentators alike. It is and endless exercise to attempt a single definition that would capture all facets of the tort of defamation. For the Page 11 of 60 present case, the definition proffered by the editors of Halsbury’s laws of England (4th ed),(reissue), Vol 28 page 7, 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 convey an imputation on him disparaging or injurious to 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 of Winfield and Jolowics on Tort (18th ed) at page 584, paras 12-15 described as the ‘normal and ordinary meaning” of the words published. The learned authors cited the case of Jones v. Skelton [1963] 1 WLR 1362 at 1370-1371 , where Lord Morsi said that : “.. the ordinary and natural meaning may…. include and implication or reference 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 would suffice for plaintiff.” What are the elements of defamation: [30] In his book The Law of Torts in Ghana Text, Cases and Materials, Stephen Offei at page 530 gave the elements of defamation as follows: The Claimant in a defamation action must establish three elements: 1. that the words were defamatory 2. that the words referred to the claimant; and Page 12 of 60 3. that the words were published (to at least one person other than the claimant) by the defendant. [31] In Owusu – Domena v Amoah (supra) in holding 3 of the headnotes the Court gave the elements of defamation as follows: “In establishing that a publication was defamatory, 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; and (v) if the defendant sought the defence of qualified privilege or fair comment, that the defendant had been actuated by malice. And malice in such matters would be said to exist if there was spite or ill on the part of defendant or if the court found indirect or improper motive against the defendant in publishing the words complained of.” Defences to defamation action [32] What are the Defences available in a defamation claim? Kumado in his book introduction to the law of torts in Ghana at pages 253-259 gave the following as defences in a defamation action: a. Absolute privilege b. Qualified privilege c. Fair comment d. Justification, and e. consent. Page 13 of 60 [31] Absolute Privilege A defendant faced with an action of defamation may plead the defence of absolute privilege. Absolute privilege will provide a complete defence regardless even when the allegation is untrue or malicious. The following are examples of absolute privilege which will be an absolute defence to a defamation claim. • Legislative proceedings. • Executive matters. • Judicial proceedings. • Statements made by one officer of state to another during the course of his official duty. • Statements contained in reports of various statutory officers and bodies. • Statements made in the course of other proceedings having judicial characteristics. See the case of Attisogbe v Harley [1971] DLHC 2205 where Hayfron-Benjamin J. held that: I am of the view that a publication emanating from the National Liberation Council being the supreme legislative body at the time is absolutely privileged . [32] Qualified Privilege A situation of qualified privilege arises when the person making a statement has a legal, social, or moral interest or duty to communicate it to someone who has a corresponding interest or duty to receive it. This mutual interest or duty removes the assumption that the person making the statement is motivated by malice, which is typically considered in defamation cases. As a result, this context allows the statement to be regarded as privileged. Page 14 of 60 In Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127 on the definition of Public Interest to the defence of qualified privilege quoted the dictum of Lord Atkinson in Adam v. Ward [1917] A.C as follows: Lord Atkinson's dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted: '. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential'. [33] in his book Introduction to the LAW OF TORTS IN GHANA; Kumado gave the circumstances where qualified privilege may occur as follows: (i) words relating to matters of common interest (ii) words protecting the interest of the publisher (iii) words protecting the public interest (iv) words advancing the public interest and words highlighting misconduct of public officials, [34] The defence of qualified privilege will not protect a publisher from a defamatory statement where his actions were actuated by malice. In the case of Uko v. Mbaba 2001 4 NWLR (PT 704) 460 CA, the Court held: “The appellant would have made a good defence based on qualified privilege since the publication of the defamatory matter to the A.I.G; Zone 6, Calabar, was made on a privileged occasion, but having been actuated by malice, as correctly found by the learned trial judge, the defence of qualified privilege cannot avail the appellant. The defence of qualified privilege must be made without malice as the presence of malice destroys the privilege. …furthermore, it is the law that the Page 15 of 60 defence of qualified privilege where relied upon must be specifically pleaded before it can be entertained”. Ekpe JCA pg 477-478 paras G-B. [35] Fair comment An honest and fair comment is a defence to a defamatory action. To successfully use this defence, the statement must be an opinion, the basis of the opinion must be indicated, and an honest person could have held the opinion based on any fact existing at the time of publication. However, the defence is defeated if the claimant can show that the defendant did not genuinely hold the opinion. The courts have provided guidance on the application of the honest opinion defence. In Corbyn v Millett [2021], EWCA CIV 567, the Court of Appeal warned against treating comments as statements of fact, which would weaken the defence. The court recognised that the defence should protect genuinely held opinions. [36] Justification A plea of justification is a defence raised by a publisher of a defamatory statement that the whole of the defamatory statement complained of, that is to say, the averments themselves and any reasonable inference to be drawn from them are wholly or substantially true. The entire burden of proving that the matter complained of is true lies on the publisher of the defamatory statement. It is presumed that the defamatory statement is false, so the burden of proof is placed on the defendant to prove it is not. [37] Consent Page 16 of 60 A person who consents to the publication of a defamatory statement against him will not have a cause of action against the publisher of the said defamatory statement and an action for defamation against the publisher will fail. APPROACH TO DETERMINATION OF ISSUES [38] I do not intend to discuss the issues set out in the memorandum of issues filed on 20 July 2023 which were set down for the determination of the suit one after the other but rather go through the elements of defamation and determine if the publication is capable of a defamatory meaning and then examine the defence put up by the Defendant alongside the evidence on record. If Plaintiff is able to prove her claim after the examination of the evidence on record, she will be entitled to damages. I believe in the end I would have covered all the issues set out in the memorandum of issues. [39] Benin JSC in the case of Owusu-Domena v. Amoah (supra) gave the requisite elements of defamation as follows: (i) that there was publication by the defendant; (ii) that the publication concerned him, the plaintiff; (iii) that the publication was capable of a defamatory meaning in its natural and ordinary sense; (iv) that alternatively or in addition to (iii) above, from the facts and/or circumstances surrounding the publication, it was defamatory of him, the plaintiff; and (v) if the defendant sought the defence of qualified privilege or fair comment, that the defendant had been actuated by malice, and malice in such matters would be said to exist if there was spite or ill will on the part of the defendant or if the court Page 17 of 60 found indirect or improper motive against the defendant in publishing the words complained of. [40] THAT THERE WAS PUBLICATION BY THE DEFENDANT; Defamatory material is considered published when it is communicated by someone, other than the person it defames, to another person. Harm to reputation occurs when the defamatory statement is understood by the reader, listener, or observer. Until that understanding happens, no harm has been done. It is a bilateral act in which the publisher makes the material available, and a third party receives it for comprehension. [41] In Pullman v W. Hill & Co Ltd [1891] 1 QB 524 the Defendant dictated a defamatory statement to his typist so that it could be written in a letter. The letter was sent to the claimant and the mail was subsequently opened by one of his mailroom clerks. The claimant initiated a defamation case against the defendant on the basis that this constituted publication. Lord Esher MR provided (at 527) the following definition of publication: The making known of the defamatory matter after it has been written to some person other than the person of whom it is written. [42] In essence, publication is the communication of the statement to any third party and not the claimant or the defendant. Lord Esher went on to note that intention is necessary: …where the writer of a letter locks it up in his own desk, and a thief comes and breaks open the desk and takes away the letter and makes it contents known … no intentional publication by the author occurs. [43] In the text Gately on Libel and Slander 8th Edition, Chapter 6 at page 104, paragraph 227, the Learned Author stated that: Page 18 of 60 It is not necessary for the Plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves fact from which it can be reasonably inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case. [44] In the present case, it is pleaded at paragraphs 2 and 13 of the second amended Statement of Claim filed on 23 June 23 as follows: 2. The Defendant is a registered entity under the laws of Ghana and operates an online news portal known as Myjoyonline.com, with its office situate at 335 Faanofa Street Kokomlemle, Accra in the Greater Accra Region of Ghana, who published an article on its www.Myjoyonline.com on 12th November 2020 entitled “FDA reacts to JoyNews’ ‘The Returned Bribe’ documentary “. 13. Plaintiff says that it is against the background of the facts pleaded in paragraphs 8-12 above that on 13th November 2020, Defendant falsely and maliciously printed, published and posted an article on its www.Myjoyonline.com (an online portal on the internet on the world wide web) the following defamatory headline of Plaintiff. “FDA reacts to JoyNews’ ‘The Returned Bribe’ documentary. Under the above, the Defendant proceeded to publish the following words defamatory of the Plaintiff……….” [45] In paragraphs 3 and 5 of the Defendant’s amended Statement of Defence filed on 5 June 2023, the Defendant pleaded in the following terms: 3. Defendant admits paragraphs 1 and 2 of Plaintiff’s Statement of Claim, and paragraph 3 only in respect of the fact of said publication by Defendant. Page 19 of 60 5. Defendant admits paragraphs 7(a) -13 of Plaintiff’s Statement of Claim to the extent only that they are matters borne out of said investigative documentary “The Returned Bribe”. From their pleadings, Defendant admits that the words complained of by Plaintiff were published by Defendant albeit not defamatory of Plaintiff according to Defendant. [46] The law is that when a party makes an averment in his pleading and the same is admitted by his opponent, he is not required to lead evidence in proof of what is admitted. In West African Enterprise Ltd v Western Hardwood Enterprise Ltd [1995- 96] 1 GLR.CA, in holding 3 of the headnotes the Court held as follows, “...no principle of law required a party to prove an admitted fact.’’ [47] Similarly, the law is that where a Defendant admits the assertion of the Plaintiff, no issue is joined on the subject matter of the admission and no evidence is required in proof of the fact or assertion. In Kusi & Kusi v Bonsu [2010] SCGLR 60, it was held that: Where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue… [48] In the current case, Defendant acknowledges that it published the article that Plaintiff is complaining about on its online portal. The question is whether this publication constitutes "publication" in the context of a defamation action. I believe it does. The article was published on www.Myjoyonline.com, an online portal accessible on the internet and the world wide web. Because a publication on the internet can be viewed by anyone, it can be reasonably inferred that the contents of the article reached the knowledge of third parties, thus meeting the publication requirement for defamation. [49] THAT THE PUBLICATION CONCERNED HER, THE PLAINTIFF. Page 20 of 60 A Plaintiff must prove that the defamatory statement refers to him or her. This can be done easily in most cases, as the claimant will be named. However, a Plaintiff who has not been referred to by name must prove that some readers understood the words complained of as referring to him or her. [50] There is no doubt that the Defendant acknowledges and admits that the publication made by the Defendant and complained about by Plaintiff concerned the Plaintiff. The portion of the article that the Plaintiff is complaining about is in the following terms: ‘The CEO of the Food and Drugs Authority (FDA) and the head of Legal Affairs are being investigated for allegedly taking bribe from the manufacturer of COA FS.’ [51] By her pleadings paragraph 1 thereof, the Plaintiff describes herself as the CEO of the FDA. Defendant in its Statement of Defendant admits this assertion of Plaintiff. There is no joinder of issues on the assertion by the Plaintiff that she is the CEO of the FDA. [52] The law is that where a defendant admits the assertion of the plaintiff, no issue is joined on the subject matter of the admission. See Kusi & Kusi v Bonsu (supra). On the evidence, I find that the Publication complained of concerned the Plaintiff. [53] THAT THE PUBLICATION WAS CAPABLE OF A DEFAMATORY MEANING IN ITS NATURAL AND ORDINARY SENSE; A court in determining whether a publication was capable of defamatory meaning should give to the material complained of the natural and ordinary meaning that it would have conveyed to the ordinary reasonable reader. [54] Halsbury’s Laws of England, Fourth Edition, Vol. 16 page 23 paragraph 16, states that in determining the natural and ordinary meaning, the Court takes into account not only the literal meaning of the words but also the inference which a reasonable person Page 21 of 60 would draw from them in their context. Thus, the meaning of words in a libel suit is determined by the reaction of the ordinary reader and not by the intention of the publisher. [55] In the case of Jones v. Skelton (1963) 1 W.L.R. 1362, at p. 1370-1371, Lord Morris described the ordinary and natural meaning of words thus: “...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.” [56] In Abu v. BPI Bank (supra) Osei JA on the meaning of defamatory words stated as follows: .. words are capable of being defamatory of a plaintiff if they tend to hold him up to contempt. Scorn or ridicule or if they turned to lower him in the estimation of right thinking members of the society generally, or if they cause him to be shunned or avoided. In the English case of Grubb v Bristol United Pres Limited [1962]2 All ER 380 at 392 one of the modes of establishing libel suggested by Lord Upjohn was proof that the words published were defamatory of the Plaintiff in their natural and ordinary meaning. Also, I find in the case of Lewis v Daily Telegraph [1963] 2 All ER 151, a passage in the opinion read by Lord Reid which, in my view , sheds more light on how the natural and ordinary meaning of a publication is discovered. The passage is at page 154 of the report and is quoted hereunder: :… There is no doubt that in actions for libel the question is what the words would convey to the ordinary man, it is not one of construction in the legal sense. The ordinary man does not live in the Ivory Tower and he is not inhibited by knowledge of the rules of construction…” Page 22 of 60 There is a clear suggestion from the above-quoted passage that, in determining whether a publication is libelous, an important consideration is what it will mean to the ordinary man. Where the words in the publication is libelous in themselves, as where the plaintiff has been called a thief or a murderer, making the determination is a straight exercise. But very often, libel does not lie in the meaning of the constituent words in the publication. It is discovered from what the ordinary man, reading the publication between the lines in the light of his general knowledge and experience of worldly affairs ascribe to it. The meaning the ordinary man infers, relying on his general knowledge and experience in worldly affairs, is the natural and ordinary meaning of the publication. The important question in the present case therefore is whether, having regard to the circumstances in which the publication in issue was made, an ordinary man who reads it is likely to understand it in the libelous sense. [57] In the case of The Times 9 Hart v Newspaper Publishing PLC [1989 November], it was held that in deciding whether or not a statement was defamatory, the approach which should be adopted is that of the hypothetical ordinary reader “who was neither ‘naïve’ nor ‘unduly suspicious’ but who ‘could read in an implication more readily than a lawyer and might indulge in a certain amount of loose thinking’. On the other hand, the hypothetical ordinary reader was not someone who was avid for scandal, and he was not someone who will select one bad meaning where the other, non-defamatory meaning were available. [58] In Blake v Fox [2024] EWHC 956(KB) , Warby LJ observed at [19]-[20] that: “19 … That meaning is to be determined objectively by reference to the words themselves. No other evidence is admissible. The author’s intention is irrelevant as is evidence about the meaning that readers actually took from the statement Page 23 of 60 complained of. But the medium of expression and the context in which the words complained of appear are both important. 20. Judges must seek to place themselves in the position of a reader who is neither avid for scandal nor unduly naïve. They should beware of over-elaborate analysis, especially when dealing with postings on social media such as Twitter, which are ‘in the nature of conversation rather than carefully chosen expression’. The meaning that an ordinary reasonable reader will receive from a tweet is likely to be ‘more impressionistic than, say, from a newspaper article’ and ‘the essential message that is being conveyed by a tweet is likely to be absorbed quickly by the reader’. Judges should have regard to the impression the words make upon them. They can take judicial notice of particular characteristics of a given readership if these are matters of common knowledge but should beware of impressionistic assessments of those characteristics. The correct approach, and the established practice, for a judge deciding meaning at first instance is to read or watch the offending publication to capture an initial reaction before reading or hearing argument. [59] In the instant case, Plaintiff testified that what she is complaining of is an article Defendant published and posted on Defendant’s online portal www.myjoyonline.com.gh on the internet with the following headline “FDA reacts to JoyNews ‘The Returned Bribe’ documentary” and what was published under the headline s found in relief (i) of the Plaintiff referred above. [60] According to the Plaintiff, the ordinary and natural meaning of the above publication is that she was engaged in bribery and extortion and that there was an ongoing criminal investigation against her. [61] It is pleaded at paragraphs 15, 16 and 17 of the Statement of Claim as follows: Page 24 of 60 15. It is the case of the Plaintiff that by the above publication, it was understood to mean that there was an ongoing criminal investigation against the person of the Plaintiff as the CEO of Food and drugs Authority. 16. Further the natural and ordinary meaning the word BRIBERY together with the other words used in the body of the news item as contained in paragraph 13 meant and were understood to mean that Plaintiff had engaged in criminal acts of bribery by getting her subordinate officers to demand and extort monies on her behalf from manufacturer who appeared before FDA to certify his company’s products in accordance with statutory and regulatory requirements. 17. Further and by way of innuendo, the words used in the body of the news item as contained in paragraph 13 meant and were understood to mean that Plaintiff as CEO would extort money or demand bribe from manufacturers before allowing products to be certified as fit for the market. PARTICULARS a. It was during process to clear the product for market that the bribe was demanded. b. Plaintiff would demand bribe as a condition to allow producers get their products “BACK TO THE MARKET” c. That FDA under Plaintiff recalled products on the market as having been contaminated was a ploy to demand bribe from the manufacturer and then later allow the product get back to the market. d. That Plaintiff is corrupt and extort monies from manufacturers whose products do not meet FDA standards. Page 25 of 60 [62] The Plaintiff testified on the natural and ordinary meaning of the publication as follows: Also, the natural and ordinary meaning of the word ‘BRIBERY’ together with the other words used in the body of the news item 20 meant and was understood to mean that I had engaged in criminal acts of bribery by getting my subordinate officer to demand and extort the monies on my behalf from manufacturers whose products does(sic) meet the standards of FDA but with bribery could be allowed to keep the product on market. Further, the words used in the body of the news item as contained in paragraph 13 meant and were understood to men that I as CEO would extort money or demand bribe from the manufacturers before allowing products to be certified as fit for the market. [63] Defendant denies the natural and ordinary meaning placed by Plaintiff on the publication. It is argued on behalf of Defendant that Defendant’s use of the word “bribery” directly reflects the FDA Board’s language and is a factual representation of the investigation, so it seems unjust for Plaintiff to accuse Defendant of associating her with a criminal act of bribery, given that the Defendant’s statement was a direct and accurate report of the FDA Board’s press release. [64] I seem not to agree with this argument by Counsel for the Defendant. In the press release Exhibit 3, the FDA Board did not say that the Plaintiff was under investigation. The statement that the Plaintiff was under investigation for taking a bribe from the manufacturer of COA FS was an addition by Defendant. In any case, the law is that the repetition of a defamatory statement made or published by another is no defence in a defamation action against the subsequent publisher. Page 26 of 60 [65] So, what is the natural and ordinary meaning of the words used complained of by the Plaintiff? Bribery and corruption by and of public officers are crimes in Ghana. This is provided for under sections 239 (1) and (2) of the Criminal and Other Offences Act, 1960 (Act 29). Section 239 : Corruption of and by public officer or juror (1) Every public officer or juror who commits corruption, or wilful oppression, or extortion, in respect of the duties of his office, shall be guilty of a misdemeanour. (2) Whoever corrupts any person in respect of any duties as a public officer or juror shall be guilty of a misdemeanour.” [66] Corruption by and of a Public Officer etc has been explained in sections 240 and 241 of the Act Section 240. Explanation as to corruption by public officer, etc A public officer, juror, or voter is guilty of corruption in respect of the duties of his office or vote, if he directly or indirectly agrees or offers to permit his conduct as such officer, juror, or voter to be influenced by the gift, promise, or prospect of any valuable consideration to be received by him, or by any other person, from any person whomsoever. Section 241. Explanation as to Corruption of Public Officer, etc A person is guilty of corrupting a public officer, juror, or voter in respect of the duties of his office or in respect of his vote, if he endeavours directly or indirectly to influence the conduct of such public officer, juror, or voter in respect of the Page 27 of 60 duties of his office or in respect of his vote, by the gift, promise, or prospect of any valuable consideration to be received by such public officer, juror, or voter, or by other person, from any person whomsoever 252. Accepting or giving bribe to influence public officer or juror (1) A person who accepts, or agrees or offers to accept, a valuable consideration, under pretence or colour of having unduly influenced, or of agreeing or being able so to influence, any other person in respect of functions as a public officer or juror, commits a misdemeanour. [67] From the above provisions of the law, bribery and corruption are considered crimes. The portion of the publication that concerned the Plaintiff stated “CEO of the Food and Drugs Authority (FDA) and the head of Legal Affairs are being investigated for allegedly taking bribe from the manufacturer of COA FS…” [68] The publication further stated; ‘Professor Samuel Ato Duncan told investigative journalist Manasseh Azure Awuni that the Head of Legal Affairs, Cynthia Dapaah Ntow, demanded that he pays $100,000 so he will be given the green light to continue selling his products. In a telephone conversation, Mrs Dapaah Ntow said she was taking the money on behalf of the Authority’s CEO, Delese Mimi Darko…” [69] In Exhibit, F the Chief Executive Officer of COA FS is heard to say that he considers the money given to the Head of Legal of the FDA as a bribe. [70] From the facts and the circumstances in which the publication was made an ordinary man who reads it is likely to understand that the Plaintiff is involved in the crime of bribery and corruption and she is being investigated for that. I am satisfied that the Page 28 of 60 publication is capable of defamatory meaning and Defendant will be liable for defaming Plaintiff if the defence put up by Defendant do not avail them. [71] 1. Plea of Justification As has been said earlier, if a statement is true, then this will form a complete defence to an action for defamation. It should be noted that the burden of proof for showing that a statement is true rests with the defendant. The defendant does not have to show that every single characteristic of the statement made is true, merely that it is substantially true. [72] Lord Denning MR in the case of Associated Leisure Ltd (Phonographic Equipment Co Ltd) v. Associated Newspaper Ltd (1970) 2 QB 450 at 456, stated thus: “Like fraud, counsel must not put a plea of justification on the record unless he has clear and sufficient evidence to support it. A defendant who pleads justification is required to deliver full particulars of the facts and matters upon which he relies in support of such a plea and the evidence at the trial in support of this plea will be strictly confined to those particulars. The particulars must be sufficiently detailed not merely to enable the claimant go to trial knowing the general lines of the case to be made against him, but to know the particular facts which the defendant alleges against him and which go to justify the imputation contained in the libel.” [73] So, if Defendant pleads justification as a defence in this matter, I expect Defendant to lead sufficient, credible and admissible evidence in proof of their claim that Plaintiff was actually under investigation for bribery and as such the publication was justified. The proof will be one of the preponderance of probabilities in terms of section 12 of the Evidence Act, 1975 (NRCD 323). Page 29 of 60 Section 12 (1) : ‘Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.’ Section 12(2) of the Act explains what ‘preponderance of probabilities’ is as follows: ‘Preponderance of probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.’ [74] The law is that it is the party who stands to lose on an issue if no evidence is led on it that bears the burden of proof as far as that issue is concerned. This is provided for by Sections 14 and 17 of the Evidence Act; “14. Allocation of burden of persuasion Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting. 17. The burden of producing evidence Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence. [75] In the case of Okudzeto Ablakwa (No. 2) v. Attorney General & Anor [2012] 2 SCGLR 845 at 867 the Court explained that : Page 30 of 60 “If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…” [76] See also Memuna Moudy & Ors v. Antwi [2003-2004] SCGLR 967 at 974 -975 where Wood JSC (as she then was) commented on the burden placed on a party making an allegation which is disputed as that: “ A person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he doesn’t discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred.” [77] It is pleaded at paragraph 21 of the Statement of Defence as follows: 21. Defendant repeats the preceding paragraphs and avers that the grumbled broadcast/publication is not defamatory and the subject is not false but true and justified upon the following facts forming the basis for the said documentary. PARTICULARS OF TRUTH/JUSTIFICATION I. The Food and Drugs Authority (FDA), as established by law is a public service institution with a most sensitive and critical function for the wellbeing of citizens and national development. II. That the producer of the said documentary received compliments information about acts of corruption and abuse of office by Plaintiff’s dismissed staff who demanded a bribe from a named drugs maker for the product of COA-FS. Page 31 of 60 III. That the Defendant, worked with an award-winning investigative journalist with many years of practice who spent several months to investigate the complaints to produce the said documentary. IV. That the said journalist interviewed the CEO of COA-FS over the subject matter, received various pieces of evidence and independently verified same confirmatory and their corroborative contents. V. That said CEO of COA FS had a call from Plaintiff’s said staff who arranged a meeting upon a complaint to her about a scheme to destroy the product COA FS. VI. That the said CEO of COA FS attended said meeting in Accra on April 8, 2020 whereupon arriving in Accra, said staff directed him to wait at the entrance of the Ghana Institute of Management and Public Administration (GIMPA). VII. That said staff would lead him to a location unknown to him and stopping at a restaurant not far from GIMPA. VIII. That after discussing the issue with said staff and handing over material documents on the subject to her , she demanded payment of a bribe for herself and ostensibly for the CEO- Plaintiff herein. IX. That said staff had negotiated with him to pay an amount of money which became the subject matter of disagreement with him insisting the demand was for a total of GHC600,000.00. X. That said staff was to have a share of GHC100,000.00 while she handed the balance of GHC600,00.00 ostensibly to Plaintiff. XI. The said staff would however insist the agreement was for the sum of $200,000.00 to be shared equally between the two, allegedly. XII. That said disagreement ensued after he had delivered said GHC600,000.00 to said staff who would return the money on 14th of April 2020. Page 32 of 60 XIII. That his assistant took a photograph and made a brief recording of the occasion of delivering the cash amount by placing same into the car boot of said staff outside the premises of her office. XIV. That he, seeking to preserve evidence of perpetration of crime involved the Greater Accra Region office of BNI. [78] The obligation of a party making an averment is the production of evidence in proof of the averment, as required by sections 11(1) and 14 of the Evidence Act. Section 11(1): For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Section 14: Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting. [79] In proof of their assertion that the publication was true, the Defendant’s second witness Manasseh Azuri Awuni testified as follows: I state that the complained comments as contained in the impugned publication, the basis of Plaintiff’s suit, are not defamatory but true or factual as follows: I. That the said head of legal, Cynthia Dapaah Ntow, invited said Samuel Ato Duncan and he honoured her invitation obeying her directions and demands for payment of what was clearly unlawful extortion to perform her duty to a member of the public who sough such service. Page 33 of 60 II. That Cynthia Dapaah Ntow was subjected to a disciplinary process mandated by her employer and has lost her employment with the FDA on account of matters of the subject of Plaintiff’s instant suit. III. That the said publication containing said comments did keep strictly to the contents of said interaction with Cynthia Dapaah Ntow and it consciously and fairly avoided implicating or incriminating plaintiff. (emphasis mine) IV. That in fact, among other positive statements, said Samuel Ato Duncan made during said interview was that he knew Plaintiff and could refer to her as a friend whom he would not expect to make said financial demands as requested by Cynthia Dapaah Ntow. [80] The portion of the publication being complained of by the Plaintiff is that she is under investigation for bribery. I do not see anything in paragraph 21 of the Statement of Defence and the evidence of DW1 the journalist who did the investigative work that remotely suggest that the statement that Plaintiff is being investigated for an alleged bribe is true. DW1 himself who did the investigation did not testified that the Plaintiff was being investigated for bribery. [81] The burden of proof by a party in a suit may be discharged by evidence from the mouth of an opponent or his witness. In Nyame v Tawiah & Anor [1979] GLR 265, C.A (Full Bench), it was held: A party could prove his case by admissions from the mouth of his opponent or his adversary’s witness... [82] Again, the burden of producing evidence may be discharged if the averment made by the plaintiff in support of his claim or defendant in support of his defence, is admitted by the opponent. See West African Enterprise Ltd v Western Hardwood Enterprise Ltd (supra). Page 34 of 60 [83] In further proof of the assertion that the statement complained of is true, Defendant tendered in evidence Exhibit 2. Exhibit 2 is proceedings from a previous case, Suit No. E7/02/2021 between Plaintiff and Professor Ato Duncan in which Plaintiff in an answer to a question under cross-examination admitted that she was under investigation. In that case, judgment was entered in favour of the Plaintiff for defamation against the said Professor Duncan after the Judge had analysed the evidence before her. I must say that that judgment is not binding on this court nor does it have any persuasive effect on me. Indeed, I have not sighted the said judgment. I am being invited by Defendant to accept the said admission made by Plaintiff as an admission that Plaintiff was investigated in the present suit before me. [84] Defendant’s representative testified as follows: I state, further to above that fact that Plaintiff being part of investigation is admitted on oath in the suit she refers to as having won against said Prof. Samuel Ato Duncan. I attach hereto and marked as Exhibit ‘2’ series evidence of this deposition and contact with said Disciplinary Committee. [85] In Exhibit 2, in an answer to a question, the Plaintiff admitted that she was investigated. The Plaintiff in her testimony also tendered in evidence Exhibit H. Exhibit H is also proceedings in the same case in which the Plaintiff in an answer to a different question under cross-examination denied that she was investigated. [86] In his written address, Counsel for Defendant sought to analyse the evidence in the previous suit and discounted the testimony of the Plaintiff as found in Exhibit H relative to her not being investigated and invites me to accept that the plaintiff admits that she was being investigated. I will humbly decline this invitation. [87] What is the effect of the said admission contained in Exhibit 2 in the case before me? Suit No. E7/02/2021 was not before me and I am not permitted to analyse the evidence Page 35 of 60 led in that suit to prefer one evidence of the Plaintiff to the other. The judgment in the case was delivered by the High Court, Cape Coast, a court of Cordinate jurisdiction and it is not before me on appeal and I am not permitted to analyse the evidence led in that case and a finding. It is the court that received the evidence and observed the demeanour of the parties that has the jurisdiction to analyse the evidence before her and make a finding out of it. The credibility or otherwise of a witness is within the province of a trial judge. See Osei v Korang [2013] 58 GMJ 1at 26. [88] On this issue, I think it would be appropriate to refer to the evidence of the Defendant’s representative under cross-examination on 8 April 2024. Q. But did you ever publish that the Plaintiff was under investigation of an alleged bribery? A. Yes, we did. Q. And was plaintiff indeed under any such investigations for the said allegedly bribery ? A. Yes, we had every cause to believe so, because she the plaintiff was the principal key person in the subject matter of the documentary…………….. Second to that, is that the Plaintiff in a Cape Coast Court in a matter between herself and Prof. Duncan said she was investigated and the Multimedia Group having provided assistance to the CID and the Committee on account of these we have stated she was investigated. X X X X X X Q. Again, the Cape Coast trial between Plaintiff and Prof. Duncan was way after your publication that Plaintiff was under investigation. Page 36 of 60 A. Yes, but it is because we knew more having assisted the investigators upon their request. Q. Were you in Court in Cape Coast during the hearing of the case? A. No. Q. So, how did you get to know that Plaintiff said she was under investigation. A. I think that Court documents are public documents and all of these things are written. I can read and I have read. X X X X Q. I am suggesting to you that what you relied on was a very parochial attempt to justify your wrong publication that Plaintiff was under investigation. A. I disagree. Q. Because if you had read the proceedings of the next day you would have come across Plaintiff’s denial that she was under any investigations whatsoever. A. We came across that supplementary testimony but we deemed that as an afterthought on the side of the Plaintiff because in counsel’s words he said Plaintiff went back to Court to deny. So, we came across it but it was just a mere afterthought of someone who went home and slept over it. Q. And she also explained that because she appeared to assist the investigation by way of giving statements it coloured her mind to believe or to state what she said. A. Those will be her words . Q. I am also suggesting to you that the High Court of competent jurisdiction before who these statements were made accepted and admitted Plaintiff’s statement that she was not under investigation contrary to your publication. Page 37 of 60 A. Yes Q. An therefore it is entirely out of Place for Multimedia to state that it was an afterthought and so attempt to use this to back and support your defamatory publication about Plaintiff that she was under investigation. A. I strongly disagree. It was not out of place. [89] On the authority of Osei v Korang (supra) I am unable to make a finding that the Plaintiff admitted that she was under investigation for bribery as the High Court, Cape Coast before whom the evidence was adduced has made a finding of fact that the Plaintiff was not under investigations based on the evidence before her. [90] Again, in the present case, the Plaintiff has specifically denied that she was not investigated and the alleged admission in Exhibit 2 would be inconsistent with the evidence of the Plaintiff in this case that she was not under investigation. How are previous inconsistent statements given in previous proceedings treated by our courts? [91] In the case of Adwubeng v Domfeh [1997-98] 1 GLR 282 at page 283 in holding 2 of the headnotes the Supreme Court held as follows: Section 20 of the Evidence Decree, 1975 (NRCD 323) governing the use of evidence given in former proceedings, allowed evidence in a previous suit to be tendered to support or attack the credibility of a witness. Two situations could arise from that principle: (i) where the witness was unable to give satisfactory account of the inconsistent testimonies, the effect of the contradiction was to destroy his credibility and render the evidence he gave at the subsequent trial negligible; but the earlier testimony used to contradict him was neither admissible evidence of the truth of the fact stated therein nor evidence upon which the court should act to make a finding; and (ii) where he gave an explanation which the trial judge accepted as reasonable for his former evidence, it would be for the trial judge to Page 38 of 60 form his opinion of the credibility and veracity of the witness, and either accept or reject the evidence given before him. In both situations, the previous statement or testimony used to contradict the witness was not admissible evidence of the truth of the fact stated therein. It was therefore clear that in the instant case, the trial judge had erred in ignoring the evidence led before her by the boundary owners and the plan, exhibit KIA , in support of the identity of the plaintiff’s land and rather relying on the evidence before the committee as truth of the matter stated therein and the yardstick to determine the authenticity of the evidence led before her…. “ [92] In the present case, the Plaintiff testified that she was not investigated. I cannot accept the admission in Exhibit 2 from the previous proceedings as truthful, particularly considering Exhibit H's content, where she explained her earlier admission. The High Court Cape Coast, accepted this explanation and made a definitive finding that he was not investigated. [93] Again, it is the case of the Plaintiff that when the publication of the documentary titled “ The Returned Bribe” was aired by the Defendant, she reported to the National Security and the Board of FDA and the Board set up an investigating committee to investigate the conduct of the Head of Legal. The Defendant tendered in Exhibit 3, the Press Release of the FDA on the matter. The Plaintiff testified under cross-examination that after the FDA investigation, she was exonerated. [94] The following took place on 12 March 2024 when the Plaintiff was cross-examined by Counsel for the Defendant. Q. You have confirmed to this court that there was a disciplinary process that found Cynthia Dapaah Ntow guilty. Is that correct? Page 39 of 60 A. Yes. She was found guilty among others for bringing the name of the organization in disrepute. Q. You recall the disciplinary hearing i.e. setting up of the committee to investigate the matter was communicated to the public in a release signed by the FDA Board Chairman. Not so ? A. Yes. Q. You recall the outcome was equally communicated to the staff of FDA on Tuesday, April 27, 2021. A. Yes Q. This communication was by a memo that said she ceases to be staff of FDA ‘effective 18 May 2021”. Is that correct ? A. Yes Q. This communication also said Cynthia Dapaah Ntow was given “ a charge of misconduct”. Is that correct ? A. I will say yes. I do not remember the exact words. Q. This communication also said “The Staff are also hereby informed that the Investigative Committee exonerated the CEO of all allegations of wrong doing on her part”. Not so ? A. Yes. I have in my file an Exhibit G that would like to make reference to it. My Board Chairman put out a publication which said that I have reported the matter of bribery to him. I have also included it as an Exhibit. I do not remember the exact Exhibit when the bribery case became known to me. Following that Defendant put out a story referring to my Board Chairman’s statement. If you look at that story, Page 40 of 60 Defendant has put a background to that story that was not part of my Board Chairman’s statement. That background is very clear and says that I am being investigated for bribery that was not part of my Board Chairman’s statement. That is why that statement that Defendant put was very defamatory of somebody who has worked for 32 years. It was on the background of this that my Board decided that the letter should be couched that way so that anybody who thought I was being investigated and that I was exonerated of anything. [95] It is argued on behalf of the defendant that, if the Plaintiff was not under investigation for bribery, then she could not have been exonerated by the disciplinary committee. In his written address counsel for Defendant stated thus.” If the Plaintiff was not under investigation, the FDA had no reason to publish a statement about her being exonerated, as there was no need to mention her at all.” [96] I do not think being exonerated necessarily means one was under investigation. One can be unfairly accused of a crime or misconduct but if there is no prima facie evidence to warrant an investigation, the person wrongly accused can be exonerated without any investigation. In the circumstances of this case, there is evidence on record to the effect that the Head of Legal in the documentary Exhibit F, had said she took the alleged bribe without the knowledge of the Plaintiff and when the money was given to the Plaintiff later she rejected it and asked it be returned. Exhibit F was available to the FDA and National Security. So, what was there for the Plaintiff to be investigated about? I seem to agree with the reason that the Plaintiff gave under cross-examination that made the Board Chairman of FDA to state in the outcome of the report that she was exonerated. [97] In any case, the publication was made way before the Board of FDA released its investigative or disciplinary report, meaning that before and after the publication of the impugned publication, Defendant had no reason whatsoever to state that Plaintiff was under investigation for bribery. Page 41 of 60 [98] On 30 April 2024, the Defendant’s representative admitted under cross-examination that the Defendant had no evidence before the court to substantiate that the Plaintiff was under investigation. Q. I am suggesting to you that there could not have been any basis whatsoever to support your claim and your publication that the Plaintiff was under investigation. A. The Head of Legal was the principal person in the documentary. She said things that referred to the Plaintiff and the Board’s investigations was all encompassing. So then, we have every cause to believe that looking at the veracity of the claims in the video and the direct or implied referral to the Plaintiff, she (Plaintiff) was subject of the investigation. Q. And you have not in this court made any statement to substantiate that you had a core and hard evidence suggesting that the Plaintiff was under investigation. A. Yes Q. The Head of Legal never made any statement which you have alluded to in this case that also suggest that Plaintiff was under investigation. A. I do not know whether she has made such a statement or not. [99] As has been said in an action for Defamation when the defendant pleads justification, what he means is that the impugned publication is true. The burden of proof of that truth lies on him alone and he discharges this burden with sufficient, acceptable and credible evidence. In the present case, on the evidence, Defendant has been unable to discharge that evidential burden placed on it to prove that the statement in the publication that Plaintiff was under investigation for alleged bribery is true. The defence of justification accordingly fails because the defendant was not able to justify the statement by showing that it was accurate that the Plaintiff was under investigation for taking a bribe from the Page 42 of 60 manufacturer of COA FS. I hold that the defence of justification should fail as I am not satisfied that a plea of justification has been established. Thus, the defence of justification will not avail the defendant. [100] 2. Plea of Qualified Privilege The next defence put by the Defendant is the defence of qualified privilege. It is pleaded at paragraph 22 of the Statement of Defence filed on 5 June 2023 as follows: 22. Defendant repeats the preceding paragraphs and the accompanying sub- paragraphs of 20 and 21 and contends that the statements complained of in said publication are not defamatory but matters of qualified privilege which Defendant has a corresponding or common interest or duty with the public to receive and broadcast. PARTICULARS OF QUALIFIED PRIVILEGE 1. That matters of the complained publication arising from said documentary are the subject of criminal investigations by State through the BNI, Accra. 2. That matters of the complained publication arising from said documentary formed the subject of disciplinary/investigative committee hearing at the behest of the Board of Directors of the FDA resulting in the dismissal of said staff. 3. That the complained publication arising from said documentary is produced bona fide without malice in the circumstances. [101] It is settled law that an occasion of qualified privilege is one in which the maker of a publication has an interest or duty, whether legal, social or moral, to make it to a person who has a corresponding interest or duty to receive it. See Reynolds v Times Newspapers Ltd and others (supra). Page 43 of 60 [102] In the case of Benjamin Duffour v Bank of Ghana and Graphic Communications Group Ltd (2022) JELR 109685 (SC) the Court indicated that for the defence of qualified privilege to avail a defendant, it must be established that the publication was made either; (a) in the defendant’s own interest; (b) in the interest of the one who received the information; (c) in the common interest of the maker and receiver of the information; or (d) in the public interest. [103] In Reynolds v Times Newspapers Ltd (supra) the House of Lords reviewed and laid the foundation for the law of qualified privilege and noted that although it is impossible to clearly demarcate occasions of privilege, the defence promotes the “common convenience and welfare of society”. [104 ] Lord Philips in the case of Flood v Times Newspapers Ltd [2012] UKSC 11, quoted with approval the definition of Public Interest made by Lord Bingham in the case Reynolds v Times Newspaper Ltd (supra) thus: By that we mean matters relating to the public life of the community and those who take part in it, including within the expression ‘public life’ activities such as the conduct of government and political life, elections….. and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies , institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private such that there I no public interest in their disclosure. [105] It is pleaded at paragraph 23 of the amended Statement of Defence as follows: Page 44 of 60 23. Defendant contends that any comments on the back of the publication of documentary subject matter are matters of fair comment and public interest and that in the premises; Defendant together with the public had a corresponding or common interest in the subject matter pursuant to Articles 21,41 and 162 of the Constitution 1992. PARTICULARS OF PUBLIC INTEREST i. That the FDA is a public service institution with Plaintiff appointed to render public service in her assigned duties. ii. That the FDA’s named officer herein is a subject of criminal investigation by the BNI over the subject matter. iii. That the FDA’s name officer was dismissed after administrative discipline/investigations by a committee of the FDA’s Board of Directors over the subject matter. [106] On the defence of qualified privilege, Defendant’s representative testified as follows: 13. It is worth emphasising that there is absolutely no basis for any allegation of malice and that said publications are not defamatory but matters of public interest which said Samuel Ato Duncan, I and Defendant had a duty with the public to comment on even publicly because(sic): a. because the matters connected to a State Authority charged with the critical and sensitive duty of assurance of quality and safe food and drugs for consumption by the public b. because the matters bothered on wrongful and criminal conduct wherein an officer of State, inter alia, demanded bribe as incentive to perform her duty. Page 45 of 60 c. because the matters were the subject of inquiry by a State investigative agency NIB as well as the subject of disciplinary proceedings by which Cynthia Dapaah Ntow has lost her employment and persons found culpable liable to prosecution, and again that said publication was made pursuant to Articles 21, 35(8), 41 and 162 of the Constitution 1992. [107] In discussing this defence raised by the Defendant I will briefly discuss Freedom of speech and defamation. Article 21(1)(a) of the Constitution 1992 provides as: (1) All persons shall have the right to- (a) Freedom of speech and expression, which shall include freedom of the press and other media; Article 41 provides as follows: 41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be duty of every citizen – (d) to respect the rights, freedoms and legitimate interest of others, and generally to refrain from doing acts detrimental to the welfare of other persons; (f) to protect and preserve public property, and expose and combat misuse and waste of public funds and property [108] These provisions of our 4th Republican Constitution guarantee the right of individuals, the press, and other media to free speech, expression, and opinion, including the Defendant herein, a media house. Freedom of free speech is the right to express one’s opinion and ideas without government censorship or restraint. The press has a role in a Page 46 of 60 democratic society including our Republic. Press freedom allows the public to discover and form an opinion of the ideas of public leaders and this freedom should not be curtailed except as provided by the Constitution or any other law. [109] However, the right to free speech is not absolute and one can still be subject to liability for their speech. For instance, hate speech or speech inciting imminent lawless action or if the speech violates the dignity of others and defame them. Every human being is entitled to protect himself from being abused, insulted and disparaged with a view of lowering his reputation before right thinking men of society either orally or in writing. The exercise of the right of free speech or expression should not be seen to abuse, insult and disparaged a person with a view of lowering his reputation in society. [110] Lord Steyn in Reynolds v Times Newspapers Ltd and others (supra) on the role of the press and the need to protect the reputation of others in the performance of its role stated thus : The role of the press, and its duty, was well described by the European Court of Human Rights in Castells v. Spain (1992) 14 E.H.R.R. 445, 476, para. 43 in the following terms: ". . . the pre-eminent role of the press in a state governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, for the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of public interest. "Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the Page 47 of 60 preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society." In De Haes Gijsels v. Belgium (1997) 25 E.H.R.R. 1 the European Court of Human Rights again emphasised that the press plays an essential role in a democratic society. The court trenchantly observed (at p. 53; para. 39): "It is incumbent on the press to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them." [111] In the present case, it is argued on behalf of Defendant that Plaintiff holding an esteemed position of the Chief Executive Office of the FDA seeks to leverage her public office to stifle the constitutional rights of the media and citizens alike and that Plaintiff’s position funded by the hard-earned taxes of the citizenry does not immune her from such responsible media scrutiny as happened in this case. Counsel for Defendant further submits that the citizen’s right to information is paramount and must be upheld against any attempts to suppress it. [112] I agree with the submission of Counsel for Defendant that the citizen’s right to information is paramount and must be upheld against any attempts to suppress it. The Plaintiff is the Chief Executive Officer of a Public Institution and the Public in general has an interest or duty to receive information on any corruption, illegality or misconduct that goes on in that Public Institution especially so when the FDA has an obligation or responsibility of the ensuring quality assurance of products that get to the public are wholesome and good for public consumption. In my view, any officer of FDA who demands or receives a bribe to approve of a product that eventually ends up on the market for public consumption must be of interest to the public and the media has the duty and interest to make such conduct known to the public in any form they deem fit. It Page 48 of 60 is a public interest matter to expose or publish a Public Officer of such a sensitive public institution like the FDA who engages in bribery and corruption to approve goods meant for public consumption and the defence of qualified privilege will avail such a publisher in a defamation action. [113] However, it is trite law that the defence of qualified privilege will not avail a publisher of a defamatory statement where his actions were actuated by malice. In the case of Uko v. Mbaba 2001 4 NWLR (PT 704) 460 CA, the Court held: The appellant would have made a good defence based on qualified privilege since the publication of the defamatory matter to the A.I.G; Zone 6, Calabar, was made on a privileged occasion, but having been actuated by malice, as correctly found by the learned trial judge, the defence of qualified privilege cannot avail the appellant. The defence of qualified privilege must be made without malice as the presence of malice destroys the privilege. …furthermore, it is the law that the defence of qualified privilege where relied upon must be specifically pleaded before it can be entertained”. Ekpe JCA pg 477-478 paras G-B. See also Spring v Guardian Assurance Plc [1994] UKHL 7 where the Law Lords held that the defence of qualified privilege will defeat a defamation action unless the Plaintiff proves malice. [114] According to Harry Street, The Law of Torts (6th edition), Butterworths, London. 1976, chapter 16, pp.291 ‘Malice’ means either the defendant did not believe in the truth of his statement or was ‘recklessly careless whether the statement be true or false’; or he was actuated by wrong motive, ill will, personal spite or abuse of privilege. Differently put, malice 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 or the publication is a departure from the truth. Page 49 of 60 [115] In the Nigerian case of Nta v. Babatope 1996 4 NWLR (PT 440) 75 CA, Pats- Acholonu JCA at pg. 90-91 paras H-A, defined malice in law as: Any corrupt motive, any wrong motive or any departure from truth, it does not mean merely spite but improper motive to do or assist in doing what one knows to be wrong or wicked. [116] In the present case, I have said that matters any officer of FDA who takes bribe to approve of a product that eventually ends up on the market for public consumption must be of interest to the public and the media has the duty and interest to make such conduct known to the public in any form they deem fit. But was the publication actuated by malice? If the answer is in the affirmative the defence of qualified privilege will not avail the Defendant. On the evidence I am satisfied that the publication was actuated by malice and the defence of qualified privilege will not avail the Defendant. [117] I say so because the Defendant published that the Plaintiff was under investigation for bribery for taking money from the manufacturer of COA FS when Defendant knew or ought to have known that, that statement was false. [118] First, in the documentary that culminated in the publication of the article, the Head of Legal said the Plaintiff was not aware of the alleged bribery. The Defendant knew or ought to have known that in the documentary Professor Samuel Ato Duncan said he knew Plaintiff had no knowledge about the demand for the money by the Head of Legal. Defendant knew or ought to have known that when the alleged bribery was sent to Plaintiff by the Head of Legal, she did not take it and asked that it be returned. Defendant knew that Plaintiff did not approve of the conduct of the Head of Legal and was not involved in the alleged bribery. [119] DW1 the journalist testified that Plaintiff knew nothing about the alleged bribery and was not involved in the same. He testified as follows: Page 50 of 60 20. I with the meanings placed on said comments by Plaintiff as being false, forced and untenable as same are not borne out by the impugned comments and her own narration of the facts of said publication as said comments, on the contrary, are rather more reasonably and fairly predisposed to and meant: a) That Cynthia Dapaah Ntow demanded, received and returned a bribe from said Samuel Ato Duncan. b) That Cynthia Dapaah Ntow by her own admission demanded money for Plaintiff without her foreknowledge. c) That Plaintiff who did not approve of such conduct rejected said money when said officer purportedly handed same to her, and that the FDA under Plaintiff disapproves of acts of bribery and extortion and ensures officers found culpable are disciplined. ( EMPHASIS MINE) [120] Second, Defendant knew that it was Plaintiff who reported the matter to the FDA and National Security and this led to an investigation against the Head of Legal. I will reproduce portions of Exhibit 3 the press release which formed the basis of the impugned publication. • “The matter came to the notice of the CEO in April 2020. • The CEO immediately reported the matter to National Security which has since been conducting its investigations. • The CEO has reported the matter to the Board Chairman and the Administration is following its internal investigation and disciplinary processes.” [121] Third, nowhere in Exhibit 3 did the Board of FDA said the Plaintiff was under investigation for an alleged bribery. Indeed, it was the Plaintiff who was the complainant in the matter so he could not have been under investigations. In fact, Exhibit 3 was the Page 51 of 60 basis for the impugned publication and the Defendant reasonably can be said to have known its content. [122] Fourth, PW1 the journalist he testifies to the condour of the Plaintiff and say that the Plaintiff was not part of the bribery allegation. [123] From the above (paragraphs 118-122) there was no reason remotely for Defendant to publish that Plaintiff was under investigation for taking a bribe from the manufacturer of COA FS. I find that the publication was actuated by malice as the Defendant made that publication knowing that it was false and they made it recklessly that amounts to willful disregard for the truth and that overcomes the defence of qualified privilege put up by Defendant. The defence of qualified privilege will not avail Defendant in this matter. [124] Plea of Fair comment Honest and fair comment by way of comments and criticisms on public interest issues, absent malice, is a defence to a defamatory action. Kumado in his book stated at pages 258 -259 of his book as follows: These are comments or criticisms on matters of public interest, such comments being made honestly and without malice. For this defence to succeed, there are three elements which must be satisfied. (i) be a matter of public interest (ii) the comment must be founded on fact(s) and (iii) the comment must be an opinion. [125] Public interest has never been defined, but in London Artists Ltd. v. Littler [1969] 2 Q.B. 375, 391, Lord Denning M.R. rightly said that it is not to be confined within narrow limits. He continued: 'Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen Page 52 of 60 to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.' [126] To successfully use this defence, the statement must be an opinion, the basis of the opinion must be indicated, and an honest person could have held the opinion based on any fact existing at the time of publication. However, the defence is defeated if the claimant can show that the defendant did not genuinely hold the opinion. [127] On this defence, DW1 testified as follows: 18. I contend that the complained comments as contained in the said publication is not defamatory but fair comment or opinion including said Samuel Ato Duncan’s comments in said interview: a. bothering on a presumption that a reference to “madam” by Cynthia Dapaah Ntow to be reference to Plaintiff and his suspicion on bribery and extortion regarding money demanded by Cynthia Dapaah Ntow. b. bothering on a confirmation he made that Cynthia Dapaah Ntow had said her demand was without Plaintiff’s foreknowledge and that Plaintiff rejected said money when it purportedly handed to her by she Cynthia Dapaah Ntow [128] For the defence of fair comment to avail a defendant in a defamation action, the statement or publication complained must be a comment. In the present action, the statement or publication complained of by the Plaintiff is in the following terms: The CEO of the Food and Drugs Authority (FDA) and the head of Legal Affairs are being investigated for allegedly taking bribe from the manufacturer of COA FS. The question that needs to be answered is, is the above statement an opinion of a fact? [129] Black’s Law Dictionary seventh edition defines fact as follows: Page 53 of 60 1. Something that actually exist….. 2. An actual or alleged event or circumstances, as distinguished from its legal effect, consequence or interpretation [130] A fact is a statement that can be verified or proven to be true or false through evidence while an opinion expresses a feeling or a value judgment. The common law on the distinction between fact and comment was summarised by Lord Nicholls in Cheng v Tse Wai Chun Paul [2000] HKCFA 35, as follows:- “… the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v Smith’s Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20, 26: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.’” [131] Part of the publication may be comments but In my view the above statement that the CEO of the Food and Drugs Authority is being investigated for allegedly taking bribe from the manufacturer of COA FS is a fact that can be verified or proven to be true or false by objective evidence. Even though part of the publication may contain comments or opinion, the part that relates to or concerns the Plaintiff that she complains of is a fact and not an opinion. [132] Indeed, the Defendant’s representative in his evidence testified that the Defendant has not provided any evidence in proof of the statement that the Plaintiff was under investigation. Page 54 of 60 Q. I am suggesting to you that there could not have been any basis whatsoever to support your claim and your publication that the Plaintiff was under investigation. A. The Head of Legal was the principal person in the documentary. She said things that referred to the Plaintiff and the Board’s investigations was all encompassing. so then, we have every cause to believe that looking at the veracity of the claims in the video and the direct or implied referral to the Plaintiff, she (Plaintiff) was subject of the investigation. Q. And you have not in this court made any statement to substantiate that you had a core and hard evidence suggesting that the Plaintiff was under investigation. A. Yes Q. The Head of Legal never made any statement which you have alluded to in this case that also suggest that Plaintiff was under investigation. A. I do not know whether she has made such a statement or not. [133] The Defendant failed to lead evidence in proof of the fact that the Plaintiff was under investigations for bribery. The statement complained of by the Plaintiff is statement of fact which the Defendant was unbale to prove. It was not an opinion or comment. Thus, this statement of fact that the Plaintiff was under investigation for taking bribe from the manufacturer of COA FS found in the publication does not qualify under the defence of fair comment in a defamation action and same will not avail the Defendant in the present case. [134] Even if the statement is an honest opinion or comment, the honest opinion or comment should be based on facts. In Riley v Muray [2021] EWHC 3437 QB, it was held thus: Page 55 of 60 For the defence of honest opinion to succeed, the defendant had to establish the facts upon which they based their opinion. [135] On the evidence there are no facts that the Defendant could base such an opinion on as admitted by the Defendant’s representative under cross examination that the Defendant had not made any statement to substantiate that you had a core and hard evidence suggesting that the Plaintiff was under investigation [136] The Publication complained of is capable of defamatory meanings and the defence of justification, qualified privilege and fair comment raised by defendant did not avail it. The defence of justification, qualified privilege, public interest, fair comment or opinion raised by Defendant did not avail them. I hold that the publication of the article defamed the plaintiff. DAMAGES [137] It is argued on behalf of Defendant that Plaintiff made a bare assertion in her pleading of having suffered reputational damage which assertion was controverted by Defendant but Plaintiff did not provide any evidence in proof of the assertion and that Plaintiff is not entitled to any damages if any because there was no proof that the publication actually defamed her. I do not agree with Counsel for Defendant on this point. Once a case of libel has been established, the victim is entitled to the general damages as compensation to vindicate his reputation, for the injury to his feelings whether damages proved or not. [138] It is law that if a statement or publication unjustly tarnishes a person's reputation, they are entitled to seek compensation for the damage to their good name. A defamation action is fundamentally a way to compensate an individual for the harm inflicted on their reputation. In all cases of libel, it is assumed that the complainant has suffered harm, and the exact amount to be awarded is determined broadly. Once a case of libel has been Page 56 of 60 established, the victim is entitled to the general damages as compensation to vindicate his reputation, for the injury to his feelings. [139] In the case of Duffour v. Bank of Ghana & Anor. (supra) the Supreme Court, per Prof. Mensa-Bonsu (Mrs.) JSC stated the position of the law on libel per se thus: “In addition to all of these above, it would also be important to state that at common law, Libel, is actionable per se, because damage is presumed. On account of the presumption, there need be no specific proof of damage. However, any particular damage that has occurred may be put in evidence and the court would take cognizance of it. Such damage may be aggravated by certain circumstances, and a court may take that into consideration as well.” [140] Also, in the case of Owusu-Domena v. Amoah (supra), Benin, JSC (as he then was) aptly stated the position of the law thus: “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?” [141] In the present case, the Plaintiff is the Chief Executive Officer of the FDA . she gave documentary evidence as to her status in the community. She is the tendered in Exhibit A, B, C, and E. Exhibit A is an acceptance by the Plaintiff to join The Regulatory Advisory Group of the COVAX Workteam “Research , Development and Manufacturing led by Coalition for Epidemic Preparedness Innovation (CEPI). Exhibit B is an invitation to join the Strep A Vaccine Global Consortium (SAVACC) Vaccine Safety Working Group, Page 57 of 60 Exhibit C is in respect of an Invitation to Plaintiff to serve as a Member of the African Medicines Regulatory Harmonization Steering Committee and Exhibit D is an invitation to her to join the Advisory Board and Launch of the German-West African Centre for Global Health and Pandemic Prevention. The Plaintiff is professionally recognized globally and has a reputation to protect. This kind of reputation has been negatively affected by the impugned publication and she is entitled to damages. [142] The Plaintiff is claiming Ghs 2,000,000.00 in damages. In determining the appropriate amount, I will consider the crucial role that the media plays in our emerging democracy. While it is important for the media to fulfill this watchdog role, they must also adhere to certain boundaries intended to prevent disorder and protect the reputations of others. In awarding damages for the reputational harm caused to individuals in society by the media or the press, I believe that our courts should be cautious not to impose punitive or excessive damages. Such excessive awards I believe could financially strangle the press, ultimately hindering its ability to fulfil its essential role within a democratic society. I also take judicial notice of the fact that the media in Ghana is not doing well financially in our young democracy. Therefore, I will award the Plaintiff damages of GHS 200,000.00. In conclusion, I enter judgment for the Plaintiff as follows: i. A declaration that Defendant’s publication titled; ‘FDA reacts to JoyNews’ ‘The Return Bribe ‘ documentary”. “The food and Drugs Authority (FDA) reacts to JoyNews’ ‘ The Returned Bribe’ documentary which alleges corruption and bribery at the Authority. In a press statement signed by the Board Chairman of FDA Dr. Sammy Ohene, he said the Board has set up a committee which is investigating the matter in its entirety earnestly. Page 58 of 60 The statement further explained that “This matter came to the notice of the CEO in April 2020. The CEO immediately reported the matter to National Security which has since been conducting its investigations. “The CEO has reported the matter to the Board Chairman and the Administration is following its internal investigation and disciplinary processes.” The Board has, therefore, urged the general public to allow the Board and the appropriate investigative bodies to complete their investigations. “As a matured regulatory agency whose core value include transparency, fairness and integrity, the Authority reiterates its zero tolerance for bribery and corruption and reaffirms its commitment to protect the health and wellbeing of consumers,” the statement concluded. Background The CEO of the Food and Drugs Authority (FDA) and the head of Legal Affairs are being investigated for allegedly taking bribe from the manufacturer of COA FS. Professor Samuel Ato Duncan told investigative journalist Manasseh Azure Awuni that the head of the Legal Affairs, Cynthia Dapaah Ntow, demanded that he pays $100,000 so he will be given the green light to continue selling his product. In a telephone conversation, Mrs. Dapaah Ntow said she was taking the money on behalf of the Authority’s CEO, Delese Mimi Darko. Meanwhile, the FDA has filed an injunction on the screening of the documentary on JoyNews. is defamatory of the Plaintiff. Page 59 of 60 ii. An order that Defendant publishes an unqualified retraction and an apology on their online Platform with the same prominence the defamatory words received within 30 days after the judgement. iii. An order of perpetual injunction restraining the Defendant, its agents, assigns and servants from further publishing any defamatory words against the Plaintiff. iv. Two hundred Thousand Ghana cedis (Ghs200,000.00) as general damages against the Defendant. v. Costs of Ghs 25,000.00 in favour of the Plaintiff and against the Defendant. Ayitey Armah-Tetteh J. (Justice of the High Court ) Page 60 of 60