SARPONG V YAHAYA (A5/04/2021) [2024] GHACC 290 (17 September 2024)

1 INTHECIRCUITCOURTJUASOHELDONFRIDAY,THE17THDAYOFSEPTEMBER,2024, BEFOREHERHONOURNANAASANTEWAAATTAKORAHCIRCUITCOURTJUDGE. A5/04/2021 PASTORPETERSARPONG } PLAINTIFF OFTHECHURCHOFTHELORD BROTHERHOOD,MISSIONHOUSE VRS DAUDAYAHAYA } DEFENDANT OFJUASO–ASANTEAKIM =========================================================== JUDGEMENT ===================================================================== On the 5th day of November 2020, the Plaintiff herein caused to be instituted the present action againsttheDefendanthereinforthefollowingreliefs; a. A Declaration that the oral statements spoken in public about him (Plaintiff) by the Defendant arefalse,defamatoryandmalicious. 2 b. Aggravated or Exemplary damages for defamation in the sum of Ten Thousand Ghana Cedis (GH¢10,000.00). c. Generaldamagesfordefamation. d. An order directed at the Defendant to unconditionally retract the said defamatory statements/publicationsandtorenderanunqualifiedapologytothePlaintiff. e. An order of perpetual injunction restraining the Defendant, his agents, assigns, privies, servants,workmen,labourersorotherwisehoweverfromfurtherpublicationofthesaidwords oranyofthemoranywordtolikeeffectandconcerningPlaintiff. f. Costs. Upon service of the Writ of Summons on the Defendant heentered Appearance and filed a Statement of Defence on the 6th day of November, 2020 and the 9th day of November 2020 respectively. SubsequenttothatthePlaintifffiledanAmendedWritof SummonsandStatementof Claimonthe3rd dayofDecember2020.Heamendedhisreliefsasfollows; A. A declaration that the oral statements spoken in public about him (Plaintiff) by the Defendant believedbyrightthinking`membersofthesocietyarefalse,defamatoryandmalicious. B. Aggravated or exemplary damages of Fifty Thousand Ghana Cedis (GH¢50,000.00) for defamation of character to wit: “Wasie mp)nkye ne nnwan wo w’asore kwan ano na wode retweed)mbaw’asoremu”translatedinEnglishLanguageasfollows;“Youhaveburiedgoats andsheeponthecompoundofyourchurchwiththeaimofattractingmemberstoyourchurch knowingverywellsamewasafalsehood”. C. Generaldamagesfortrespassfordefamation. 3 D. An order directed at the Defendant to unconditionally retract the said defamatory statement/publicationsandtorenderanunqualifiedapologytothePlaintiff. E. An order of perpetual injunction restraining the Defendant, his agents, assigns, privies, servants,workmen,labourersorotherwisehoweverfromfurtherpublicationofthesaidwords oranyofthemoranywordtolikeeffectandconcerningPlaintiff. F. Costs. The Defendant also filed an Amended Statement of Defence and Counterclaim on the 3oth day of March2021andcounterclaimedasfollows; i. Damages of an amount of Ten Thousand Ghana Cedis (GH¢10,000.00) against the Plaintiff forkillingtheDefendant’sanimals(goat). The Plaintiff fileda Replyon the 7th day of May2021 inwhich hedeniedmost part of theDefendant’s Statement of Defence and Counterclaim and averred that the Defendant is not entitled to his Counterclaim. AttheApplicationfordirectionsstage,thefollowingissuesweresetdownfortrial; a. Whether or not the statement made by the Defendant to wit: “Wasie mp)nkye ne nnwan wo w’asore kwan ano na wode retwe ed)m ba w’asore mu” translated in English language as follows: “You have buried goats and sheep at the entrance of your church with the aim of attractingmemberstoyourchurch”isdefamatory. b. WhetherornotPlaintiffisentitledtohisclaims. c. WhetherornotPlaintiffkilledtheDefendant’sanimals(goats). 4 d. WhetherornottheDefendantisentitledtohiscounterclaim. As has been decided whether or not a party is entitled to his claim is the reason why the Parties are beforethecourthenceIfindtheactualissuestobedeterminedtobetheremainingtwoissues. The basis for Plaintiff’s action as gathered from the accompanying Statement of Claim, Witness Statement and Cross Examination is that he is the Pastor of Brotherhood Church and the Defendant shop is opposite his church where he also lives. According to him since he went to settle at Juaso, without any provocation the Defendant has been casting insinuations against him and harassing him as well. He also stated that the Defendant has been telling people in their community that he killed sheepandgoats andburiedthemaroundhismission houseinordertodrawpeopletohis church.On one such occasion and in the presence of some of his neighbours and church members, theDefendant made a remark in the Twi language thus, "Wasie mp)nkye ne nnwan w) was)re h) na wode retwe ed)m ba w'as)re mu” translated in English as "You have buried goats and sheep at your church and using same to draw people to your church", causing three people who heard the remark to enquire about it and that has ward off people from joining his church. He contends that the statement made by the defendant is false, defamatory and malicious. According to him the Defendant trespassed onto a plot belonging to the Presbyterian Church of Ghana, Juaso, sometime ago and when he (Defendant) was queried as to how he came by the plot/land, he told the Elders of the Church that it was the Plaintiffwhourgedhimtotakeitforhim. Furthermore,onthe2nddayofNovember,2020,theDefendantaccusedhimofhavingstolensix(6)of hisgoatsandinsultedhimthatheis afakepastorwhouses"Juju"(charms)inhispastoralworkhence hedoesnotdeservetobeapastoratall,tothehearingofthepeopleinthecommunity.TheDefendant 5 thereafter reported him to the Police that he killed six (6) of his goats hence he was arrested by the police and upon investigations the Police realized that the allegation was not true so the District Commander discharged him but that has created disaffection for him and exposed him to public ridiculeandodiuminhiscommunity. He continued that the Defendant always look for opportunities to persuade people who come to his churchforcounsellingtostop.Afterinstitutingthe action,theDefendanttoldtwopeoplewhocametohimforcounsellingnottocometohimagainashe is a "Juju Sofo" meaning "a pastor who engages in rituals" and a fraudster. The Defendant then told themhe couldtake themto another place but he immediatelywent to pickthemup in his car andthe Defendant quickly left when he saw him approaching and they told him all that the Defendant had told them. The Defendant again told a certain Latifa who attends his church that he operates with "Juju"inhischurchandthechurchis an"AbosomsomAsore"meaning"anidolworshipchurch"sohe told the said Latifa to testify on his behalf but the Defendant warned Latifa’s mother not to allow her to testify. He finally contended that all these utterances and actions by the Defendant against him has caused him public disgrace, tainted his reputation, lowered his dignity in the right-thinking members of the society and has deterred a lot of people from joining his church. The Plaintiff called three witnessesinsupportofhiscase. PW1was ErnestOwusuAntwiwhois a memberofthePlaintiff’s Church andaccordingto him,some timeago,hesawtheDefendant standinginfrontofhisshopandexchangingwordswiththePlaintiff. TheDefendanttoldthePlaintifftohis hearingintheTwi languagethat"Wasiemp)nkyenennwan w) was)re h) na wode retwe ed)m ba w'as)re mu" translated in English as "You have buried goats and 6 sheepatyourchurchandusingsametodrawpeopletoyourchurch".Subsequenttothatandafterthe Plaintiffhadinstitutedthis action,theDefendant keeps tellingpeopleeitherin theirchurchor outside nottoattendthechurchandthatitisan"abosomasore"meaning"afetishchurch".Asaresultofwhat theDefendantdidandcontinuestodo,aboutthreepeopleinthetowninquiredfromhimwhetheritis true that the Plaintiff killed and buried animals at the church. He concluded that the Defendant has reallytarnishedtheimageofthePlaintiffanddisgracedhimaswellasthechurchPlaintiffisincharge of. It is the evidence of Juliana Oforiwaa (PW2 herein) that she is under the tutorship of the Plaintiff and at a point in time, the Defendant asked the Plaintiff to allow her to take care of his (Defendant) shop. She stated that she used to go to the shop to assist the Defendant and the Defendant told her that the Plaintiff is not from God and repeated the words that Plaintiff is claiming to be defamatory to her. TheDefendantthentoldhertogoandthinkaboutitanddecideifshewouldratherbecomeamoslem so the Defendant tried to convince her on several occasions till she decided to stop going to his shop. Accordingtoher,shealsowitnessedtheDefendantcallpeoplewhogoforcounsellingatthePlaintiff’s church to convince them not to go to the Plaintiff again. In conclusion she stated that the Defendant has taken it upon himself to disgrace the Plaintiff to others claiming he has buried animals at his church with the aim of drawing people to the church and also refers to the Plaintiff as a fake pastor whichisafalseallegation. PW3, Yaw Asamoah testified that sometime in November, 2020, the Defendant asked him to make a container for him and the Defendant told him that though he was the one making the container he wanted Plaintiff to be the one to do it on his behalf. He went on to say that the Defendant did so 7 because he did not want the Presbyterian Church on whose land the container was being constructed to know that the container belonged to him in order to avoid extra charges and when he completed thework,hewenttotheDefendantforhismoneywhichwasOneHundredGhanaCedis(GH¢100.00). Inconclusion,hestatedemphaticallythatitwasnotthePlaintiffwhoengagedhimtodotheworkbut rathertheDefendant. The Defendant’s Defence and Counterclaim as well as his evidence at trial on the other hand is to the effect that the Plaintiff became his friend when the Plaintiff was transferred to Juaso to continue his Pastoral work and because of the relationship that existed between them, the Plaintiff sought assistance from him to get a Plot of land to use for the sale of aluminum glazing and he advised the Plaintiff not to engage in that business. Subsequently, the Plaintiff visited him at his cement store and insistedthathewasstillinterestedinthatbusinesssoheadvisedthePlaintiffonaPlotoflandcloseto hiscontainersotheycontactedtheownerofthePlotforhimtoputupacontainerforthebusiness.He thereforeconductedinvestigations to securethesaidland forthePlaintiffandhewas askedto payan amount of One Hundred Ghana Cedis (GH¢100.00) to the Chief of the town at the time and he paid the said money to the Chief on the instructions of the Plaintiff. Later on, the Plaintiff told him that since thePlotwas notready, he wants to use part of his container to start his business till the time his Plotwouldbereadybutheobjectedtothatandasaresult,thePlaintifftoldhimthathewasnolonger interested in doing the said business. He requested for the money that he used to secure the Plot of landandthefeethemasonchargedbeingOneHundredGhanaCedis (GH¢100.00)bringingthetotal sum to Two Hundred Ghana Cedis (GH¢200.00) but the Plaintiff refused to pay. The Plot in question 8 was a school land so when the school authorities visited the plot the Plaintiff got angry and insulted themthathewasnolongerinterestedinpursuingthesaidbusiness. According to the Defendant, he has a Pen in which he rears goats near the Mission House of the Plaintiff and one day while at his store, he saw the Plaintiff with a big stick hitting one of the goats causing the goat to die subsequently so he reported the matter to the Elders of the Plaintiff’s Church but they failed to act on his complaints. Subsequent to that he also saw the son of the Plaintiff with a stick hitting one of the goats so he immediately reported the matter to the Police at Juaso but the Station Master told him that he would rather settle the matter. The Plaintiff later poisoned six of his goats through food and all of them died and when he reported the matter to the Police, he was told that he should have taken a sample of the food (maize) to the Police Station for onward transmission totheForensicLab.Hecontinuedthatsincethen,wheneverhehadanyencounterwiththePlaintiffor his children they would hurl insults at him andhis entire family. He reported the matter to the Police and the Plaintiff and his children were warned. In conclusion he stated that he has never insulted the Plaintiff that he buried goats and sheep at his Church to draw people to his Church and he has never told anybody that the Plaintiff operate with Juju in his Church and prayed for the Plaintiff to pay an amount of Ten Thousand Ghana Cedis GH¢10,000.00) to him for killing his goats. The Defendant calledtwowitnessesinsupportofhiscase. DW1 was Mamunatu Dauda the wife of the Defendant. According to her, the Plaintiff stopped her from using a foot path in front of his Church so she used a different route to fetch water to her store and she was also prevented by one Oforiwaa from passing through her house but subsequently the said Oforiwaa informed her that it was the Plaintiff who told her to prevent her from using her 9 premises as foot path to fetch water to her store. She went on to say that Oforiwaa told her that the Plaintiff is not a good man and as such they should be careful with how they deal with him and also that the Plaintiff took money from the daughter of his predecessor when she was having a naming ceremonyattheChurchandtoldherthathewillkeepitatheavenbankforherandwhensheinsisted that the Plaintiff pay back her money, the Plaintiff rather reported the matter at the Police Station in Konongo and she was arrested. According to her, Oforiwaa also told her that it took the intervention oftheseniorPastorof Plaintiff’schurchtosecureherbailas suchtheyshouldbecarefulwhendealing with the Plaintiff so she also told her husband not to associate himself with the Plaintiff because of what she heard from Oforiwaa. She concluded that the Defendant never insulted the Plaintiff as he is alleging and when Plaintiff was transferred to Juaso, the Church building had already been constructed by his predecessor and it was the Defendant who painted the building for the Church withoutchargingthem. ItwastheevidenceofSalifuZakari(DW2)thathevisitedtheDefendant'sstoretobuysomeitemsand in the course of their interaction, the Plaintiff and some of his Church members including a staff of the Juaso District Assembly arrived at the store. The said staff of the Assembly asked the Defendant whether he is the one erecting the container on the land (which according to him belongs to the AssemblyandtheDefendant saidnoandtoldthestaffoftheAssemblytomakethatenquiryfromthe PlaintiffbutthesaidstaffbecameangryandstartedtoinsulttheDefendantsotheDefendantthentold himthatthePlaintiffistheownerofthecontainerwhichisneartheDefendant'scontainer.Thestaffof the Assembly then invited the Defendant to his office and the Plaintiff said that the Defendant has no permit to erect his kiosk and as such he will destroy the kiosk on the land. According to him, he then 10 toldthePlaintiffthatheisjealous oftheDefendantandthatwasthereasonwhyhewantedtodestroy the Defendant's work and he stated in conclusion that the Defendant never insulted the Plaintiff and hisChurchmembers. Counsel for the Defendant filed aWritten Address and arguedciting thecases of Owusu Domenavrs Amoah (2015-2016) 1 SCGLR 790 and Bonsu vrs Forson (1962) GLR 139 that words spoken in the heat of an argument cannot be construed as defamatory. According to him, PW3 under cross examination stated that the Defendant never insulted the Plaintiff let alone use the words that the Plaintiff is claiming to be defamatory hence the Plaintiff is not entitled to his claim. On whether or not the Plaintiff killed the Defendant’s goats, he submitted that the Plaintiff never denied that he did not commit that offence by killing the Defendant’s goat which makes the Defendant entitled to his counterclaim. Section 11(1) of the Evidence Act 1975 (NRCD 323) (hereinafter referred to as the Evidence Act) provides; “For the purposes of this Act, the burden of producing evidence means the obligation of a party to introducesufficientevidencetoavoidarulingagainsthimontheissue.” UndertheEvidenceAct,theburdeniscategorizedintotwo(2)headsnamelytheburdenofpersuasion andtheburdenofproducingevidence. Sections10(1)and10(2)theburdenofpersuasionasfollows; 10(1) “For the purposes of this Act, the burden of persuasion means the obligation of a party to establisharequisitedegreeofbeliefconcerningafactinthemindofthetribunaloffactorthecourt” 11 10(2) “The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderanceoftheprobabilitiesorbyproofbeyondreasonabledoubt” It is a basic principle of law of evidence that, a party who bears the burden of proof is to produce the requiredevidence of facts in issue thathas thequalityof credibility, short of whichhis claimmay fail. It is also trite that, matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of the fact is more probablethanitsnon-existence. See:Section11(4)ofNRCD323 AckahVrsPergahTransportLtd&Ors(2010)SCGLR728 GihocRefrigeration&HouseholdProductsLtd.VrsHannaAssi(2005-2006)SCGLR458. Section 12 (1) of NRCD 323 provides that “except as otherwise provided by law, the burden of persuasionrequiresproofbyapreponderanceofprobabilities.” Section 12 (2) of NRCD 323 defines preponderance of probabilities as “that degree of certainty of beliefinthemindofthetribunaloffactorthecourtbywhichitisconvincedthattheexistenceofafact ismoreprobablethanitsnon-existence.” See: Harrison Edward Nartey Martin vrs Barclays Bank (GH) Limited Civil Appeal No. J4/42/2017 deliveredonthe13thdayofDecember,2017. 12 Again,itis thepartywho alleges whomustproveandbecausetheactionis initiatedby thePlaintiffit rests on him. However, a different standard is used if the Defendant counterclaim to the plaintiff’s action. See: FosuheneVAttaWusu(2011)SCGLR273 In Re Will of Bremansu Akonu-Baffoe & Ors V Buaku & Vandeyke (Substituted By) Bremansu (2012)2SCGLR1313. It is therefore, the plaintiff who generally must prove his case on the preponderance of probabilities. However, where the defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing his case just as is used to evaluate or assess the case of the plaintiff against the defendant. Again, in the caseof In Re Ashalley BotweLands; Adjetey Agbosu & Ors V Kotey & Ors (2003-2004) SCGLR420 itwas held that, theburdenof producingevidencein anygiven casewas not fixed, but can shift from party to party at various stages, of the trial depending on the issues assertedanddenied. Iwillfirstdealwithissues(1)and(2)whichareasfollows; 1) Whether or not the statement made by the Defendant to wit: “Wasie mp)nkye ne nnwan wo w’asore kwan ano na wode retwe ed)m ba w’as)re mu” translated as “You have buried goats and sheep at the entrance of your church with the aim of attracting members to your church “isdefamatory. 2) WhetherornotthePlaintiffisentitledtohisclaim 13 According to the Plaintiff the statement made by the Defendant is defamatory and has caused serious andgravedamagetohischaracterandreputation.PW1andPW2corroboratedhisevidence. The Black’s Law Dictionary (9th ed.) at page 480 defines defamation as follows; “Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking membersofsocietygenerallyorwhichtendsthemtoshunoravoidthatperson”. Italsodefinesadefamatorystatementorcommunicationas:“Astatementtendingtoharmaperson’s reputation by subjecting the person to public contempt, disgrace or ridicule, or by adversely affectingtheperson’sbusiness.” AdefamatorystatementhasalsobeendefinedbyHalsbury’sLawsofEngland(4thed)Vol28atpage7 as “Adefamatorystatement isastatementwhichtendstolowerapersonintheestimationofright- 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 inhisoffice,profession,calling,tradeorbusiness.” In the case of Benjamin Duffour vrs Bank of Ghana & Graphic Communications Group Ltd (2022) 175 GMJ 166 @ page 205 the Supreme Court referred to page 294 of the English book, Winfield & Jolowicz on Tort (13th edition, 1989) W.V.H. Rogers (ed) Sweet & Maxwell, London, (International Student Edition) 1990, where defamation is definedas “thepublication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him”, The Court then referred to page 295 of theBookwhere theauthors discuss right-thinkingmembers of societythus “Thewordsmust tendto 14 give rise to the feelings mentioned in the definition. But on the part of whom? The answer is the reasonable man. The standard must be that of the ordinary citizen who is neither unusually suspicious nor unusually naïve and whodoes not always interpret themeaning of words as would a lawyer for he is not inhibited by a knowledge of the rules of construction. He may thus more freely read an implication into a given form of words, and unfortunately as the law of defamation hastotakeintoaccount,isespeciallypronetodosowhenitisderogatory.” In Owusu-Domena vrs Amoah [2015-2016] 1 SCGLR 790, Benin JSC stated that there are two steps involved in establishing that a publication was defamatory: “first, whether the publication was capable of a defamatory meaning… next the defamation complained of may be established from the prevailing facts and/or circumstances. Proof of either would suffice for the plaintiff.” He then laid out the principles that a Plaintiff must plead and lead evidence on in establishing that a publicationwasdefamatory.Theyare; i) TherewaspublicationbytheDefendant. ii) Thepublicationconcernedhim,thePlaintiff iii) That 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 surroundingthepublication,itwasdefamatoryofhim,thePlaintiffand 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 15 if there was spite or ill will on the part of the Defendant or if the court found indirect or impropermotiveagainsttheDefendantinpublishingthewordscomplainedof. In the Duffour case above, the Supreme Court thought it necessary to insert a new point v to the principles laiddown by Benin JSC to renderthe existing point (v) as (vi). Thenew point (v) is this “that the Defendant has no defence and added that this addition is important because there are common lawdefences such as absoluteprivilegewhich adefendant couldplead inadditionto the common law defences of qualified privilege and fair comment. In the Duffour case the Supreme Court gave the conditions under which the defence of privilege will avail a Defendant and stated thatitmustbeestablishedthatthepublicationwaseither; a. IntheDefendant’sowninterest b. Intheinterestoftheonewhoreceivedtheinformation c. Inthecommoninterestofthemakerandreceiveroftheinformation. d. Inthepublicinterest. In respectof whatconstitutes public interest,theSupremeCourtintheDuffourcaseSuprareferred to BaronParkeintheoldEnglishcaseofToogoodvrs Spyring(1835)1CM&R193atpage194wherehe states that a person would be liable for defamatory publication “unless it is fairly made by a person inthedischargeofsomepublicorprivateduty,whetherlegalormoralorintheconductofhisown affairs, in matters where his interest is concerned… if fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” 16 In the instant case, the Defendant and his witnesses have denied that the Defendant uttered the defamatory words the Plaintiff complains of and contend that it is rather the Plaintiff who killed the Defendant’s goats and sheep. However, Counsel for the Defendant in his written submission contended that the statement was made in the heat of an argument between the parties and such statements are not considered to be defamatory citing the case of Bonsu vrs Bonsu 1962 GLR 139. In thesaidcase,theclaimantallegedthatinthecauseofaheatedquarreltheDefendantstated“Youarea thief, you area hopeless lawyer andif it had notbeen for Owusu Afriyie you wouldhave no clients.” “You are a hopeless member of parliament”, it was held that thewords were utteredin theheatof an argumentsothewordswerenotdefamatory. IwishtostatethatCounselfortheDefendantfailstorealisethatthecomplaintbythePlaintiffisnotin respect of one instance. According to the Plaintiff, the Defendant has been insulting him with those words which both PW1 and PW3 confirmed. In particular reference to PW2, she added that after utteringthosewords,theDefendantwentaheadtopersuadehertobecomeaMuslimandthefactthat shesoworkedwiththeDefendant(atthetimethosewordswereuttered)wasnotchallengedbyeither the Defendant or his lawyer except to contend that the parties are friends, that PW2 was in court to testify on behalf of the Plaintiff because she is under the tutelage of the Plaintiff and finally that the Defendant was only embarking on an evangelism work. Thus, at page 20 -21 of the Record of Proceedingstheunderneathoccurred; Q–IamputtingittoyouthateventhePlaintiffadmittedthattheyareverygoodfriends. A–Thatisnottrue.IsaysobecauseofthethingsthattheDefendanttoldme. 17 Q – I am putting it to you that because they are very good friends the Defendant cannot say anything badaboutthePlaintiff. A–TheDefendantsaidbadthingsaboutthePlaintifftome. Q–TellthisHonourablecourtthosewhowerepresentwhentheDefendantsaidsomethingbadabout thePlaintiff A–Itwasjustthetwoofus. Q–IamputtingittoyouthattheDefendanthasnevertoldyouthatthePlaintiffisnotamanofGod. A–MyLord,theDefendanttoldmethatthePlaintiffisnotamanofGod. Q – I am further putting it to you that the Defendant never said it anywhere that the Plaintiff has buriedgoatsandsheepathischurchandusingsametodrawpeopletohischurchandthatiswhyyou havenowitness. A – The accused person said so in front of all the church members. He also said that in front of one Wofa Atta, Simon Kwaku Wusu, Zakari and Nana Kwame. The Defendant told a certain man who cametothePlaintiffforcounsellingtocomeanddemonstratethedirectivesthatthePlaintiffgavehim. Q–IamputtingittoyouthatwhatyoujusttoldtheHonourablecourtisnotthetruthandthatiswhy noneofthenamesyouhavementionedisawitnessinthecase. A–KwakuWusuandZakariarewitnessesinthiscase. Q–IamputtingittoyouthatthereisnoZakariaswitness. 18 A–HeisratherawitnessfortheDefendant. Q–Youwanttobeapastor.Isthatright? A–Thatistrue. Q–Andyouhavedoneevangelismbefore.Isthatso? A–YesmyLord Q–ThenyouwillagreewithmethatiftheDefendanttoldyoutochangefromChristianitytoMuslim, thereisnothingwrongwithit. A–Ididnotseeitlikethat. Q–ThenIamputtingittoyouthattheDefendantwantedyoutobecomeaMuslimandthatwaswhy hetoldyouthat. A – That is not true because he did not have to destroy the Plaintiff’s church in order to draw me to Islam. I am convinced that there was a publication concerning the Plaintiff and the question to be asked is; Was the said publication when read as a whole capable of a defamatory meaning when taken in its natural andordinary sense? Thewords spoken “Wasie mp)nkye nennwan wow’asorekwanano na woderetweed)mbaw’as)remu”translatedas “You haveburiedgoatsandsheepat theentranceof your churchwiththeaimof attractingmemberstoyour church” tomy mindandtothemindof any ordinary person is quite plain and it means that the Plaintiff who holds himself out as a pastor engagesinsomeformofritualswhichhastheeffectofdrawingpeopletohischurch.Thesewordsare 19 defamatory in and of itself and it is not capable of an innocent meaning. This is what the Blacks law dictionary refers to as defamation per se. I find these words complained of to be defamatory of the Plaintiff with particular reference to his profession as a pastor especially in this era where the character of most Christian pastors as well as their churches are constantly under attack for not leadingthesheepbythetenetsofthebiblewithitsaccompanyingscandals.Ialsofindthewordstobe malicious to the extent that the Defendant sought to use those words to get PW3 who is under the tutelageofthePlaintifftoquithischurch. Derick Adu-Gyamfi Esq. in his book, Law of Defamation, Practice & Procedure in Ghana at page 83 and in discussing words calculated to disparage a party defamed in any office, profession, calling, trade or business refers to the learned authors of Halsbury’s Laws of England where they state “In a claim for slander in respect of words calculated to disparage the claimant in any office, profession, calling, trade or business held or carried on by him at the time of thepublication, calling, tradfe or business held or carried on by him at the time of the publication, it is not necessary to allege or provespecialdamage,whetherornotthewordsarespokenof theclaimant inthewayofhisoffice, profession,calling,tradeorbusiness.Ithasbeenheldthatthisprovisionappliestoofficesofprofit and offices of honour alike. A statement so disparages a person if it imputes to him the lack of some general essential quality for the office, such as honesty, fidelity, capacity, competence, experience, qualification, knowledge, skill, judgment or efficiency or the like, or connects the imputationwiththeclaimant’s office.It isalsostillthelawthata slanderis actionableper seifthe word were published of the claimant in the way of his office or calling and in relation to his conductandimputedunfitnessforormisconductinthatofficeorcalling.” 20 Apart from the testimony of the Plaintiff and his witnesses with respect to the effect that the words spoken by the Defendant has had on the reputation of the Plaintiff, I am of the view that the words spoken has the effect of denigrating the Plaintiff in his office as a Pastor and would ward off right thinkingmembersofthesocietyfromattendinghischurchorevenbelievingthefaiththatheproffers. Iwillnowdealwithissues3and4whichareasfollows;  WhetherornotPlaintiffkilledtheDefendant’sanimals(goats).  WhetherornottheDefendantisentitledtohiscounterclaim. According to the Defendant the Plaintiff fed his goats and sheep with poisoned maize which killed them and he also contended that on one occasion, he saw the Plaintiff hit the animals with a stick causing them to diesubsequently. It is noteworthy that none of the witnesses called by theDefendant spoke about this issue of the Plaintiff killing the Defendants animals and DW1’s evidence is mainly hearsayspeakingtothingsthatshewastoldbyoneOforiwaa.AccordingtotheDefendant,hemadea number of complaints to the police, however he did not either call any Officer from the Police Station in question to testify on his behalf or tender a copy of his complaint in evidence. The position of the law is that a party does not prove his case by simply mounting the witness box to repeat what he stated in his pleading. Thus, in Majolagbe Vrs Larbi (1959) GLR 190 at page 192, it was held that proof in law is the establishment of fact by proper means, in other words, the establishment of an avermentbyadmissibleevidence.Itis notenoughtojustenterthewitness boxtorepeattheaverment onoath. 21 On the totality of the evidence I find that the parties had a cordial relationship but same turned sour along the way. It appears the main cause of this was in relation to a piece of land. According to the Defendant the plaintiff told him that he needed the land for his business but the Plaintiff denied it contending that it was rather the Defendant who wanted that piece of land but as he had issues acquiringsame,hepleadedwithhimtoassist.Theevidenceof PW3whoconstructedthecontaineron thelandis instructiveandthatistotheeffectthatitwas theDefendant whoengagedhimtoconstruct a container on the land in question and thereafter hepaid him the sum of One Hundred GhanaCedis (GH 100.00) for the work. He also confirmed it under cross examination without any contention from counselfortheDefendant.Thus,atpage23oftheRecordofproceedingsthefollowingoccurred; Q –You willagreewithmethatitwastheDefendant whoemployedyou toworkon his containerfor him.Isthatright? A–YesmyLord. Q – And you will also agree with me that when you went to the site, you met the Plaintiff and the Defendantthere. A–Thatistrue. Q–ThenyouwillagreewithmethatthePlaintiffandtheDefendantareclosefriends. A–Icannottell.Ionlymetthematthesite. 22 Q – And when you went to the site, you did not hear any word from the Defendant insulting the Plaintiff.Youwillagreewithme. A–Iagreewithyou. Q–Andwhenyoucompletedtheworkyouwereemployedtodo,itwastheDefendantwhopaidyou themoneyofOneHundredGhanaCedis(GH₵100.00). A–Thatiscorrect. Q – You will agreewith methatit was theDefendant who employed you to work for himbut notthe Plaintiff. A–Thatiscorrect. Therefore, the Defendant’s contention that it was the Plaintiff who needed the land cannot be true. I am of the view that as the relationship turned sour, the Defendant went on a malicious journey to defame the office of the Plaintiff. On a preponderance of probabilities, I find the Plaintiffs case to be more probable than that of the Defendant and the effect is that the Plaintiff claim is upheld and Defendant’s counterclaimis dismissed. It is herebydeclared thattheoralstatements spoken aboutthe Plaintiff by the Defendant in public are false, defamatory and malicious to right thinking members of the society. The Defendant is ordered to retract the said statement/publication and to render an unqualified apology to the Plaintiff through the Information Centre at Juaso for a period of one week from the date of judgement. In Cater-Ruck on Libel and Slander (5th Ed) at page 206, the authors state 23 “the law relating to the grant of interim or interlocutory in defamation actions is significantly different from that relating to injunction in general. Although the House of Lords gave authoritative consideration to the circumstances in which interlocutory injunctions should be granted in the case of American Cyanamid Co v Ethicon Ltd, the Court of Appeal has repeatedly assertedsubsequentlythatthisdecisionhasnoapplicationtoactionsfordefamationandmalicious falsehood. The jurisdiction of the court to grant interim injunctions in actions for defamation is exercisedwiththegreatestcautionandonlyintheclearestpossiblecases.”I amof theviewthatthe Plaintiff has made a case against the Defendant therefore the Defendant, his agents, assigns, privies servants, workmen, labourers or otherwise are restrained from further publication of the said words oranyofthemoranywordtolikeeffectandconcerningthePlaintiff.Ihavefoundthatthepublication made were actuated by malice so I award aggravated damages of Fifty Thousand Ghana Cedis (GH 50,000.00) to the Plaintiff fordefamation of his character. I will however notgrant general damages as claimed by the Plaintiff because aggravated damages are subsumed under the larger head of General damages. I award Cost of Five Thousand Ghana Cedis (GH 5,000.00) in favour of the Plaintiff against theDefendant. 24 SGD. NANAASANTEWAAATTAKORAH (CIRCUITCOURTJUDGE) COUNSEL ELVISOFORIASANTEFORPLAINTIFF WILLIAMASAMOAHSARPONGFORDEFENDANT REFERENCES: ACKAHVPERGAHTRANSPORTLTD&ORS(2010)SCGLR728 GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD. V HANNA ASSI (2005-2006) SCGLR458. 25 HARRISON EDWARD NARTEY MARTIN VRS BARCLAYS BANK (GH) LIMITED CIVIL APPEALNO.J4/42/2017DELIVEREDONTHE13THDAYOFDECEMBER,2017. FOSUHENEVATTAWUSU(2011)SCGLR273 IN RE WILL OF BREMANSU AKONU-BAFFOE & ORS V BUAKU & VANDEYKE (SUBSTITUTEDBY)BREMANSU(2012)2SCGLR1313. IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & ORS V KOTEY & ORS (2003-2004) SCGLR420 BENJAMIN DUFFOUR VRS BANK OF GHANA & GRAPHIC COMMUNICATIONS GROUP LTD(2022)175GMJ166 OWUSU-DOMENAVRSAMOAH[2015-2016]1SCGLR790 MAJOLAGBEVRSLARBI(1959)GLR190 BOOKS BLACKSLAWDICTIONARY(9THEDITION) HALBURYSLAWSOFENGLAND(4THEDITION)VOL28 LAWOFDEFAMATION,PRACTICE&PROCEDUREBYDERICKADUGYAMFIESQ. CATER-RUCKONLIBELANDSLANDER(5THEDITION) 26