KWARTENG III VRS. OFORI (E7/1/2021) [2024] GHAHC 481 (30 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON TUESDAY THE 30TH DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E7/1/2021 OSABARIMA DANSO KWARTENG III - PLAINTIFF VRS KWABENA OFORI - DEFENDANT JUDGMENT This action has been commenced against the Defendant for the following reliefs: a. Damages of Five Hundred Thousand Ghana cedis (GH₵ 500,000.00) for defamatory statements the defendants published and distributed against the Plaintiff which said publication portrays the Plaintiff as illegal miner, lawless person etc, which said words in their true and natural sense has exposed the Plaintiff to public ridicule and contempt in the eyes of the right-thinking citizens of Ghana and members of the Effutuakwa Traditional Area. b. An order directed at the Defendants to retract the said publication through the local information centers within Effutuakwa Traditional area three (3) times a day for a year. c. An order directed at the Defendants to render unqualified apology publicly to the Plaintiff through a local information centers within Effutuakwa Traditional Area. 1 d. An order restraining the Defendants from publishing further falsehood against the Plaintiff e. Any further order or orders this Honourable Court shall deem fit. The Plaintiff is a Traditional Ruler and the Kyidom hene of Effutwakwa Traditional Area as well as the Chief of Assin Asaman in the Central Region of the Republic of Ghana. The Plaintiff also doubles as a Police officer stationed at the National Police Headquarters Accra. The Plaintiff’s case is that on about 23rd January, 2019 the Defendant, together with Nana Adu Boahen II (deceased), addressed a petition to the Inspector General of Police the contents of which the Plaintiff avers to be false and defamatory. The Petition was referred to the Police Professional Standard Bureau. According to the Plaintiff, the Defendant in the said petition accused him of, inter alia, engaging in illegal mining (popularly known as galamsay) as well as illegal quarry in Assin Asaman. The Plaintiff states that the contents of the petition were false and mendaciously authored to tarnish the image of the Plaintiff in the Police Service as well as amongst members of the Effutwakwa Area. It is the case of the Plaintiff that the publication has caused a lot of public disaffection for him and his family. Further, same has lowered the Plaintiff in the esteem of his fellows and seriously injured his hard-won reputation. The petition has also caused serious emotional stress and exposed the Plaintiff to public hatred and contempt. The Defendant, in his defence, traversed the claims of the Plaintiff. The Defendant admit the existence of the petition to the Inspector General of Police (IGP) dated 23rd January, 2019. However, it is the case of the Defendant that the contents of the said petition are false and defamatory of the Plaintiff. According to the Defendant, on 14th April, 2019, the Defendant saw that a woman by name Auntie Adjoa had brought an excavator from Twifo Mampong 2 to Asaman. The said woman, upon being queried by the Defendant, disclosed that she had brought the machine to Asaman for galamsay at the instance of the Plaintiff. By reason of the then on-going crusade against the menace, the Defendant was emboldened to call and report the matter to National Security, Central Region, Cape Coast. He, in turned, called and directed W. O. Sintim, the officer in charge of Assin Foso Municipal, who together with some Policemen went onto the scene and removed the excavator’s pumping machine thus disabling it. Later on, the Defendant realised the said woman had managed to take the machine away. Further, on 3rd May, 2019, the Defendant saw “chanfan” machines working at the old galamsay pits. Following a discussion with them, it was revealed that the Plaintiff had permitted them their presence on the land upon an agreed Twenty Ghana Cedis (GH₵ 20) per week. Again, in August 2019, the Defendant visited the site and discovered that “chanfan” propelled galamsay business was in full bloom. In a discussion with the operators, the galamsayers disclosed that upon permission granted them by the Plaintiff, they render weekly accounts and pay a Hundred Ghana Cedis (GH₵ 100) per week to one Kofi Adu who was collecting the monies for and on behalf of the Plaintiff. According to the Defendant, the galamsayers further disclosed that the Plaintiff had formed a committee which was monitoring their operations. Before anyone brings in a chanfan machine, he would pay One Thousand, Five Hundred Ghana Cedis (GH₵ 1,500) to the committee. The Defendant avers that Kojo Gyekye, Chief linguist of the Plaintiff, Kwabena Kagya and Kwabena Adisi were members of the committee of which Kwabena Kagya was the chairman. In respect of the illegal quarry business, the Defendant avers that illegal quarry business has been going on at Assin Asaman for more than a decade between some chiefs on one hand and some sand/stone winning contractors on the 3 other hand. The Defendant states that the Plaintiff entered the business when he became the chief of Assin Asaman in 2018. The Defendant’s case is that as a result of the galamsay and the illegal quarry activities, the Asaman land has been completely degraded and the Plaintiff has made no attempt at reclamation neither has he attempted the construction of one public toilet for Assin Asaman. The Defendant further avers that his allegation of the Plaintiff’s involvement in galamsay and illegal quarry are statements of fact which are in no way actuated by malice. Moreover, the Plaintiff being a police officer and the chief of Assin Asaman, anything that affects or involves him must be a matter of public interest not only to his subject but to the public at large. The Defendant states that the Plaintiff’s involvement in galamsay and illegal quarry business is public knowledge is Assin Asaman. The monies raked from this business coupled with the fact the Plaintiff has not constructed a single public toilet or a durbar ground in the town is what is causing disaffection for him amongst the people of Asaman and not the petition to the IGP. The Defendant counterclaimed against the Plaintiff for the following reliefs: a. Damages for malicious prosecution b. Costs including legal fees. From the above narrated facts, the germane issues for consideration are as follows: 1. whether or not the petition dated 23rd January, 2019 addressed to the IGP is defamatory; and 2. Whether or not this instant suit has been commenced without reasonable grounds. 4 With respect to the burden of proof in this case, section 12 of the Evidence Act, 1975 (N.R.C.D. 323) has clearly defined the standard of proof in all civil cases which is proof by the preponderance of probabilities. This is the certainty of belief in the mind of the Court by which it is convinced that the existence of a fact is more probable than its non-existence. See ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. The principle of the law is that, a party bears the onus of establishing her averments in order to secure a judgment in her favour especially when her averments are denied by her opponent. In the case of ZABRAMA V SEGBEDZI (1991) 2 GLR 221, it was held 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. He does not discharge his burden unless he leads admissible and credible evidence from which the facts he asserts can safely be inferred.” It is instructive to note that whenever a Defendant files a counterclaim, then the same standard or burden of proof would be used to evaluate and assess the case of the Defendant just as it was used to evaluate and assess the Plaintiff’s case. This is in accordance with the principle of law that a counterclaim is an independent action thus a counterclaimant is as good as a Plaintiff. See JASS CO. LTD & ANOTHER V APPAU & ANOTHER [2009] SCGLR 265 and ELIZABETH OSEI V MADAM ALICE EFUA KORANG [2013] 58 GMJ SC. In this light, I hold that the Parties herein bear the onus of proof in respect of their respective cases. I therefore proceed with the determination of the issues set out above. 5 Defamation, according to the 9th Edition of the Black’s Law Dictionary defines defamation as follows: (1) The act of harming the reputation of another by making a false statement to a third person.• If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault. (2) A false written or oral statement that damages another's reputation. From the above definition, it can be gleaned that for defamation to be established, there must be a statement by the Defendant to a third party. The said statement must be false and defamatory of the Plaintiff and tends to diminish him in the estimation of the right-thinking members of society 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. See OWUSU-DOMENA V AMOAH [2015-2016] 1 SCGLR 790. The elements of defamation are well settled in our jurisdiction. In the case of OWUSU-DOMENA V AMOAH supra, the Supreme Court held that a Plaintiff to a defamation suit must plead and adduce 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; 6 v. If the defendant seeks qualified privilege or fair comment, that the defendant was actuated by malice. Absolute privilege does not apply here since that deals largely with matters in the public interest and those provided by statute. Adding to this list, the Supreme Court in the case of DUFFOUR V BANK OF GHANA AND GRAPHIC COMMUNICATIONS GROUP LTD. (J4/48/2021) DATED 9TH FEBRUARY, 2022 held that a Plaintiff in a defamation suit ought to establish that the Defendant has no defence. This, in the opinion of the Supreme Court is important because there are other common law defences not mentioned in (v) above. From the pleading and the testimony of the Plaintiff, it is clear to me the Plaintiff’s main concern with the Petition is the statement to the effect that he is engaged in galamsay and illegal quarry in Assin Asaman. This statement is most prominent in the Plaintiff’s case and thus forms the bedrock of this instant case. This statement can be found at paragraph 10 of the petition tendered by the Plaintiff as EXHIBIT 1. The said paragraph reads: “This same self-acclaimed chief, Nana Danso Kwarteng III is doing illegal mining popularly known as galamsey and illegal quarry in the town.” The Plaintiff in his testimony, as captured in the facts above, stated that the Police administration wrote to his department about the said petition and referred the matter to the Police Professional Standard Bureau. The Plaintiff further testified that the Petition became known to many people including other police officers and thus became a laughing stock among his peers in the service and to the people of Effutuakwa Traditional Council. The allegations were investigated and the Plaintiff was exonerated. A copy of the investigation report is in evidence as EXHIBIT 2. 7 From the above testimony of the Plaintiff, there has been a clear publication to a third party, that is, the Inspector General of Police. It is worth noting that this fact is not denied by the Defendant in his case. The Defendant under cross- examination on 14th March, 2024 admitted petitioning the IGP. The following ensued under cross-examination: Q: Can you confirm to this court that on the 23rd of January, 2019 yourself and the 1st Defendant petitioned IGP against the Plaintiff? A: Yes. Galamsay was on the rampant. We therefore investigated to know who was behind the activities of the Galamsay. It was revealed that the Plaintiff was the culprit. Q: In the said petition against the Plaintiff to the IGP you accused the Plaintiff of engaging in galamsay and unlawful stone mining quarry? A: Yes. The question which therefore needs to be resolved is whether or not the statement above is defamatory of the Plaintiff as a Chief and a Police officer. The surge of illegal mining (galamsay) is, undoubtedly, the worry of the Government of Ghana as well as the good people of Ghana as evidence of the destruction of our lands and natural resources as a result of this illegal activity is overwhelming. It is to be noted that the fight against galamsay is a collective one and does not rest only on the shoulders of the Government. Citizens have a duty to report suspected cases of galamsay. In light of the scorn attached to this menace, it is distasteful for an individual, especially one who occupies a reputable position, to be named amongst persons who show such apathy to the environment. In my opinion, a statement that the Plaintiff being a Chief and a Police officer (who by virtue of his position has a 8 role to play in curbing galamsay) is, capable of a defamatory meaning and same would inevitably lower the Plaintiff in the estimation of the right-thinking members of society or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his enstoolment as a chief. It is worth emphasising that the above finding of defamation is limited only to the publication to the IGP. The evidence does not suggest that the Defendant made further publications of the defamatory statement contained in the petition to members of the Community. From the evidence, it is the Plaintiff who read the Defendant’s petition to his people. This fact was affirmed by Ebusuapanyin Kwame Sarfo (P.W.2) in his testimony under cross-examination on 26th January, 2024 thus: Q: You have stated in paragraph 7 of your Witness Statement that you heard rumours of the Petition against the Plaintiff, not so? A: He himself brought the said Petition to us. Q: Did you read the said Petition? A: He read it to us; those of us who could not read it. The absence of evidence of publication of the petition to members of the community is further corroborated by P.W.1 in his testimony under cross- examination. The following ensued during cross-examination on 22nd November, 2023: Q: You have stated at paragraph 7 of your Witness Statement that you heard rumors that the Defendant has written a letter to the IGP? A: Yes. 9 Q: Did you ever see a copy of the said letter before the matter was brought to Court? A: No. The IGP sent it to me. Q: Paragraph 9 of your Witness Statement states that the said letter went viral? A: I can't tell but a lot of people heard about it. Q: Show to the Court any social handle of the said message? A: I did not hear it from anywhere. This notwithstanding, the Defendant can only be liable for defamation provided none of the recognised defences for an action in defamation avails to him. See DUFFOUR V BANK OF GHANA AND ANOTHER SUPRA. Truth is an absolute defence to an action for defamation. This provides justification for the publication. The Supreme Court in elucidating the defence of justification in DUFFOUR V BANK OF GHANA AND ANOTHER supra held as follows: “The defence of justification is based upon proof of truth and nothing else. The common law took the position that a person was not entitled to a false reputation. Therefore, a publication that revealed the true reputation of another by publishing the truth about the person, would relieve the publisher of liability for defamation. For this reason, for the defence of justification to succeed in an action, there must be proof that each and every fact in the publication is true.” 10 The Defendant’s case has, from the inception of the suit, been that the Plaintiff’s involvement in galamsay and illegal quarry business are factual and not total fabrication. The collective import of the defence as well as the testimony of the Defendant points to the defence of truth or justification. This shifts the onus on the Defendant to establish the Plaintiff’s involvement in galamsay and illegal quarry which the Defendant has failed to do on the totality of the evidence. There is no cogent evidence on record to satisfy this Court of the Plaintiff being directly involved in these illegal activities. In my view, the evidence adduced by the Defendant is merely speculatory or, at best, amounts only to a suspicion. The Defendant’s case is mainly based on what some alleged galamsay operators have told him. The following ensued during cross- examination of the Defendant on 14th March, 2024: Q: Can you confirm to this court that on the 23rd of January, 2019 yourself and the 1st Defendant petitioned IGP against the Plaintiff? A: Yes. Galamsay was on rampant. We therefore investigated to know who is behind the activities. It was revealed that the Plaintiff was the culprit. Q: Not that your own investigation points to the fact that Plaintiff was involved in unlawful mining but was told by the galamsayers? A: We were told by the galamsey people. Our investigations revealed that he is the one who has instructed people to collect money from them for him. None of these material witnesses were called to testify in court. A Party, if minded to get a ruling in his favour on a particular issue, ought to call material witnesses in order to establish his/her claim. A material witness, therefore, is an indispensable witness without which a Party’s claim fails. In other words, a 11 material witness is someone who has adequate or sufficient information on the matter which would cause the court to tilt to one side. Failure to call such material witness, against the background of strong denial by his opponent is fatal to the case of the Party who failed to call the material witness. See TETTEH V. THE REPUBLIC (2001-2002) SCGLR 854 AND GLIGAH AND ATITSO V. THE REPUBLIC (2010) SCGLR 870. The Defendant’s assertion is defeated by Plaintiff’s EXHIBIT 2 which is a report into the allegations contained in the Defendant’s petition. Paragraph 20 thereof, which can be found at page 6 of Exhibit 2 clearly exonerates the Plaintiff from the allegations of being involved in galamsay and illegal quarry. For the purposes of this judgment, paragraph is reproduced below: “20. Petitioners assertion that Osabarima Danso Kwarteng III is doing illegal mining and illegal quarry was not substantiated.” In my considered view, the defence of justification or truth fails. It can further be gleaned from the defence that the Defendant seeks to rely on a qualified privilege. The Defendant’s case is that the Plaintiff being a police officer and chief of Assin Asaman thus, having regard to his position, anything that affects or involves him must be a matter of public interest. The law is that qualified privilege may include inter alia: 1. statements made in the public interest; 2. statements made by a defendant to a third party about a plaintiff which the defendant is under a legal, moral or social duty to communicate to the third party and which the third party has a corresponding interest in receiving; or 3. statements made to the proper authorities in order to procure the redress of public grievances. 12 Clearly, but for the lack of truth in the allegation made by the Defendant, the defence of qualified privilege would have absorbed the Defendant from liability. This defence therefore fails. On the totality of the evidence, I am satisfied a case of defamation has been made out. The statement by the Defendant to the effect that the Plaintiff is involved in galamsay and illegal quarry is defamatory. For the above reasons, judgment is accordingly entered in favour of the Plaintiff. The Defendant ordered to retract and render an unqualified apology publicly to the Plaintiff through the local information centers within Effutuakwa Traditional area. Cost of GH₵30,000.00 is awarded in favour of the Plaintiff against the Defendant. (SGD) BERNARD BENTIL J. [HIGH COURT JUDGE] COUNSEL: ISAAC AGGREY-FYNN ESQ. FOR EVANS AMANKWAH FOR THE PLAINTIFF. GEORGE MAC-BADJI ESQ. FOR THE DEFENDANTS. 13