AMPOFO VRS. POKU AND ANOTHER (A5/01/2024) [2025] GHADC 32 (22 January 2025)

IN THE DISTRICT COURT HELD AT WIAMOASE ON WENESDAY, THE 22nd DAY OF JANUARY, 2025 BEFORE HER WORSHIP, SHIRLEY ASANTE (ESQ) – DISTRICT MAGISTRATE SUIT NO: A5/01/2024 ERIC AMPOFO VRS 1. JOHNSON OSEI POKU 2. AFIA SAAH JUDGMENT BACKGROUND The plaintiff on 29th may,2024, instituted the present action against the defendants herein claiming the following reliefs; 1 The defendants to withdraw defamatory comments they made against the plaintiff and render an apology to the plaintiff at : a. Information centers at Wiamoase b. Calvary liberty Pentecostal ministry c. Wiamoase Market Square 2 Damages of Twenty thousand Ghana Cedis (GH₵ 20,000.00) to the plaintiff for defaming the plaintiff 3 Costs 4 Any other reliefs that the court may deem fit 1 CASE OF THE PLAINTIFF The plaintiff in his statement of claim stated, that the defendants stationed their information car in front of his house and started announcing that he was a thief and had stolen torch, plantain and flat screen from one Dada Asuo who is a former administrator at Salvation Army Hospital. That since then whenever they saw him at Dominase Playground, they would start calling him out his name and announcing that he was a thief. That they also add that he had gone for an idol to conduct his church service and they know the fetish priest he went to. That he was so disturbed that he went to the said Dada Asuo to confront him if he had ever stolen anything from him and he said no. THE CASE OF THE DEFENDANTS The defendants in their statement of defence denied spreading any false news about the plaintiff. That they have never made any such announcement to defame the plaintiff ISSUES After examining the pleadings and evidence, I am of the considered opinion that the issues for determination are 1. Whether or not the defendants have communicated defamatory words against the plaintiff in the sight and hearing of other persons 2. Whether or not the plaintiff is entitled to damages. ISSUE ONE Whether or not the defendant has communicated defamatory words against the plaintiff in the sight and hearing of other persons 2 To establish a case of defamation, the plaintiff must prove the following elements; 1. That the words were capable of defamatory meaning 2. That the words were actually defamatory. 3. That the words referred to the claimant. 4. That the words were published by the defendant to at least one person other than the plaintiff. In other words, the plaintiff must prove to the satisfaction of the court that the words were spoken to or in the presence of a third party. That these words lowered the plaintiff’s reputation and the words must be reasonably understood by others in a defamatory sense. WHETHER THE STATEMENTS WERE CAPABLE OF DEFAMATORY MEANING Lord Atkins in the case of Sim V Stretch [1936] 1 A.E.R 1237 remarked that a defamatory statement is one which tends to lower the claimant in the estimation of right-thinking members of the society generally and to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disdain. In the case of Youssopoff V M.G.M pictures [1934]50 T.L.R, the definition of defamation was given us 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 Professor Stephen Offei writing on the tort of defamation, in his book law of torts in Ghana at page 530, explained among others that “The statement must result in the claimant being opened up to “hatred or the statement must result in the claimant being 3 opened up to “hatred or contempt … or causing people to shun or avoid him or to discredit him in his office, trade or profession.” It was held in the case of Parmiter v Coupland [1840] that a publication without lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule is libel. In the case of Professor Adekolu John V UDS & Anor civil appeal no J4/59/2013, it was held that what must be clearly understood that the tort of defamation is meant and designed to protect persons from false imputations which harm their reputation before right thinking members of the public Parke Baron in the case of Parmiter v Couplands (1840) 6 M & W @ 108 151 ER 340, defined defamation to be a false publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, ridicule or Contempt. See: ADEJUMO v. ABEGUNDE AND ANOTHER [1965] GLR 499-511 SC. Similarly, if any person maliciously and deliberately 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. See Villers v Monsley [1769]2 Wils. 403 THAT THE WORDS WERE ACTUALLY DEFAMATORY 4 Beside establishing that the words complained of were capable of defamatory meaning, the plaintiff must prove that they are actually defamatory, see Kumado, (op. cit. 240-241) and Mrs. Abena Pokuaa Ackah v Agricultural Development Bank (civil Appeal no. j4/31/2014, delivered 19/12/17 (unreported). The thrust of this element is that it is not enough for the subject words to be of a defamatory nature. The statement as rendered by the defendant therefore must actually result in defaming the plaintiff. That it was made out of malice, solely to irritate the plaintiff and open his past for ridicule. In the case of Hartt v Newsgroup Newspaper Publishing PLC [1989], 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 n 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.” THAT THE WORDS REFERRED TO THE PLAINTIFF For the defamatory words complained of to be referrable to the claimant, two things must be shown. a. That the statement must be reasonably be understood to refer to the claimant, b. That the statement must be understood by reasonable people as referring to the claimant. 5 Lord Atkin in the case of Knupffer v. London Express Newspaper Ltd [1944] AC 116 AT 121, held among others that “To be actionable, the defamatory words must be understood to be published of and concerning the Plaintiff.” Thus, the test to be applied is whether a reasonable man or an ordinary reader will believe that the statement was referring to the claimant. A defamatory statement naming the claimant is prima facie of reference to him. Accordingly, indirect defamatory statements are sufficient if there is enough evidence to point to the claimant as the subject of the statement, see-Morgan v Odhams Ltd [1971] 1WLR 1239. THAT THE WORDS WERE PUBLISHED TO AT LEAST ONE PERSON BESIDE THE CLAIMANT. The claimant must prove that the alleged defamatory statement(s) was published by communication of the words to at least, one person other than the claimant. In Pullman v Walter Hill & co (1981),1QB 524 Lord Esher MR, defined publication as “Making known the defamatory matter, after it has been written or spoken to some person other than the person of whom it is written or said.” Professor Stephen Offei writ (op. cit, 528-539) explains the rationale behind this element: “The reason why publication to the claimant alone is not actionable is that the tort of defamation protects a person from injury to his reputation among people, and not from injury to feelings about himself”. Publication of the said defamatory statement may be communicated through radio, television, newspapers, emails. Other forms of communication are newspapers, emails, SMS, and DEFENCES 6 Professor Kumado in his book, the law of torts in Ghana at pages 249-255 outlines the defence that may avail a defendant to a defamation suit. a. Absolute privilege b. Qualified privilege c. Fair comment d. Justification e. consent Justification A defendant who raises the defence of justification to a defamation suit says that the words he published are wholly or substantially true. He assumes the burden of proving the truth of the words published. A defence of justification is an absolute defence to a defamation action at common law. e. Consent If the publication was done with the consent of the plaintiff, an action by him will fail. ANALYSIS OF THE EVIDENCE AND THE LAW a. WHETHER THE STATEMENTS WERE CAPABLE OF DEFAMATORY MEANING Evidence of Plaintiff The plaintiff testified himself and called five witnesses. The plaintiff and his witnesses particularized in their evidence before the court, the instances and the words made by the defendants that were referable to the plaintiff with the intent to defame him. Plaintiff in paragraphs 4 to 6 his statement of claim outlines the alleged defamatory statements and the alleged places they were made. 7 In paragraph 4 he states “that two weeks ago, the defendants stationed their information car Infront of the plaintiffs house and started announcing that he is a thief and he has stolen torch, plantain and flat screen from one Dada Asuo who is a former administrator at salvation army hospital.” Further in paragraph 6, the plaintiff further states that the “1st defendant also added that he has gone for a charm from fetish priest at Enyinasu to conduct his church services and that they know the fetish priest he went to. He further stated in paragraph 6 of the witness statement that since then whenever the 1st defendant met him, he would start calling him names and announcing the was a thief. PW2 in his witness statement narrated in paragraph 3 that one Sunday on his way from church, he met the 1st defendant asking one Rose who trades in a store that have you heard the thief “Sofo Komfo Ampofo has been arrested. That afterwards whenever the 1st defendant met them at the playground at dominase he will start his announcement and hooting in is car that the plaintiff is a thief. And that the 1st defendant has been disgracing the plaintiff and calling him a thief. PW3 in his evidence before the court, stated that few weeks ago, the plaintiff came and told him that the 1st defendant has been accusing him of stealing his items and wanted to inquire if he had ever stolen from him. It is the evidence of PW4 that one Sunday, he was on his way to work when he got to dominase he heard the 1st defendant announcing to the public that the plaintiff had stolen torch, Shoe and phone from one Akwasi Akabrey and Mr Asuo Baffour formerly of salvation Army Hospital. That the 1st defendant also said that the plaintiff had gone for a char from a shrine to start his church. And that the plaintiff can take him to wherever he wanted. 8 PW5 in his evidence also stated that one evening he was playing with his friends at a place popularly called one corner when he saw the 1st defendant walking towards them and pointing fingers at him and insulting him. That he and family that he and the plaintiff’s grandfather was a thief and he had used his thievery to give birth to them. That he was the fool who was preventing him from saying that the plaintiff had gone to steal someone’s items. Defendants’ evidence The 1st defendant testified himself and called one witness The 2nd defendant did not give any evidence. He stated in his defence that he was an announcer and was only announcing wat he had been given. That one Akwasi Akabrey who also happened to be his only witness in this case, came and informed him to announce his missing items. That in the course of making the announcement the said Akwasi Akabrey called that he had seen the items so he should end the announcement. DW1 in his witness statement stated ; 3. that on 19th may,2024, I was on night duty at the salvation army hospital. At about 3:00am when I fell asleep and later woke up to find out that my phone and sandals had been taken away by thieves. 4. I took time to search for my lost items but to no avail. Later in the day, I had a call from my friend saying that someone had picked the phone and he identified himself as Eric Ampofo, the plaintiff herein. 9 5. That I asked my friend whether the lost items had been found and he informed me that the items were found on the plaintiff. 6. That I was surprised and confused and to how the plaintiff had access to my items without my knowledge and asked myself how he managed to enter. 7. That the Plaintiff later offered apology through the administrator of the hospital. Yaw Krah my grandfather and some of his church members in order to discontinue the case. When the 1st defendant cross examined the plaintiff, he did not deny ever making the statement that the plaintiff and his witnesses claims he made while using his information van and when he met them in public. I reproduce portions of exchanges when the 1st defendant cross examined the plaintiff. Q: Are you called “a thief”? A: No. Q: How do you then say because I have announced “thief” it is referrable to you? A: You mentioned my name and my church’s (Calvary Liberty Pentecostal Ministry [CLPC) name that I am thief and I have gone to a shrine for an idol to conduct my church services. That you came to me in a queue at Anyinasu for an idol to conduct church services. You further said that I have gone to steal plantain, torch and flat screen tv from Dada Asuo. Q: I am putting it to you that the announcement that you heard is someone who brought it to me and I did not mention your name while making the announcement neither did I mention the name of your church. A: You mentioned my name and you did it in the whole of Wiamoase. I have witnesses Q: I did not make the announcement in the whole of Wiamoase. Where did you see me standing saying you are a thief? A: You said it three times at Dominase, where they play draft. 10 Q: I put it to you that your name was not mentioned when we were making the announcement about a thief. A: You mentioned my name and said we have caught the thief in this town. Interestingly, the 1st defendant did not deny ever making an announcement calling someone a thief when he was cross examined by the plaintiff Q: You called me a thief. Where did I go and steal from? A: I have never called you a thief. Q: I put it to you that you have announced in your car that I am a thief in Wiamoase town. A: That is not so. Q: I put it to you that you called me a thief and insulted my father at Budumura in Wiamoase in my presence. A: That is not so. I do not even know your father. Q: You called me a thief in front of Dr. Willie’s drugstore and pointed at me in public and called me a thief. A: That is not so. Q: I out it to you that you took your information car and called me a thief in front of Auntie Asor who told you to not involve her in your defamatory statements you were making A: That is not so. Q: I put it to you that you were defaming me in your announcement car and your uncle Kwaku Sah asked you why you were doing that to me? A: that is not so. I only said “the thief who stole the item” From paragraphs 3-6 of his witness statement of defence, defendant admitted making the statements complained of by plaintiff and averred that they factually true. He states that he only announced what was given to him to announce. 11 In his evidence in chief and under cross examination, he insisted that his statements were only announcements that he had had been given to make. The words uttered by the 1st defendant of the plaintiff bothered on a criminal act. The words are without doubt, of a category that would ridicule any individual before right thinking members of the society the defendant however justifies them as only being a message he was delivering through his announcement van. He sought to justify them. From the evidence adduced so far, this court is of the view that the plaintiff has proved that the words complained were capable of defamatory meanings. It became apparent that the defamatory words spoken by the defendants herein were not made to the hearing of the plaintiff alone. As shown in the evidence of the plaintiff’s witnesses these words were uttered to the hearing of the general public. Three out of the four witnesses called by the plaintiff, led evidence to establish that the words were spoken to their hearing I reproduce exchanges between the 1st defendant and the plaintiff’s witnesses This was what transpired when the 1st defendant cross examined PW1 Q: I put it to you that I have not defamed the Plaintiff A: You have defamed him. There are witnesses to that. You continuously defamed him through the announcements you were making until the matter was brought to court which has caused you to stop. Q: How many times did you hear me make the announcement? A: About five or six times Q: I put it to you that what you are saying is false. A: That is not so. I heard it more times than the Plaintiff because I stay closer to where you make the announcements 12 Q: Who did you see me making the announcement When PW2 was cross examined by the 1st defendant the following exchanges transpired Q: Whose name did I mention when I was making the announcement? A: You mentioned Ampofo. Q: Per your witness statement, you stated that I said the Plaintiff has stolen Mr. Asuo’s items. Was it in the same announcement that you heard me mentioning all those things? A: Yes. You stated that the Plaintiff had gone to steal Mr. Asuo Baffour’s torch on that same day you were making the announcement. Q: I put it to you that I did not mention anybody’s name in the announcement. All I said was thief! A: You mentioned Ampofo and also stated that he conducts church service at Liberty Church at Dominase. Q: I put it to you that I don’t even know the church the Plaintiff attends. A: That is not true. You mentioned the church’s name and location. With that, the plaintiff has satisfied the second element required to be proved in an action for defamation. REFERENCE TO PLAINTIFF It has been explained above that as an element of the tortious offence of defamation, and as a pre-condition for proving defamation, the plaintiff must, among others, prove that the defamatory statements were in reference to him. An The plaintiff’s pleading as well as his evidence and that of his witnesses before the court, indicates that the words spoken by the defendant were referable to the plaintiff. In Hulton v Jones [1910] A.C.20, it was held per Lord Loreburn: “Libel is a tortious act. What does the tort consist in? It consists in using language which others, knowing the 13 circumstances, would reasonably think to be defamatory of the person complaining of and injured by it…. It was not what the defendant intends, but what the people around the area think of the words.” In the instant case, all the evidence adduced points to the fact that that defendant was referring to the plaintiff. WHETHER THE WORDS ACTUALLY DEFAMED PLAINTIFF. The consideration of this element ought to be done with the consideration of defendant’s defence. That was because, whether or not the plaintiff was actually defamed is dependent on the success or failure of fair comment and justification raised by defendant. If the statements were justified or amounted to fair comment, then they could not have actually defamed the plaintiff, and vice versa. To that effect, section 13 (1) of NRCD 323provides: “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” See-Sasu Bamfo v Simtim (supra It is the case of the 1st defendant that he was only making an announcement as in the normal line of his duties as an announcer. He stated that it was DW1 who asked him to make the announcement. However, nowhere in the evidence of DW1 did he sate that he asked the 1st defendant to make the said announcement. Per article 19(2) (c) of the 1992 constitution, an individual is deemed innocent unless proven guilty by a court of competent jurisdiction. 14 Thus, until an accused person is declared person by a court, no one can declare or make a pronouncement on the criminality of the said individual. No individual can therefore be called a thief unless a court of competent jurisdiction has said so. In the instant case, the 1st defendant admitted making announcement calling someone a thief, that person it has been established was the plaintiff even though there has been no determination in that regard by any court of competent jurisdiction. In Majolagbe v Larbi [1959] GLR 190, the venerable Ollenu J (as he then was) held: “Proof, in law , is the establishment of fact by proper legal means, in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.” It is trite, that a person can only testify of things which he has personal knowledge of. That the evidence to be adduced must be firsthand and not based on information heard from another person. This is what is generally referred to us hearsay evidence. In Ghana, section 116 the Evidence Act, NRCD 323 defines “hearsay evidence” as evidence of a statement, other than a statement made by a witness while testifying in the action at the trial, offered to prove the truth of the matter stated.” In the case of AMOAKO v. TAKORADI TIMBERS LIMITED [1982-83] GLR 69 -73 the Court at holding 2 held: “(2) In an action for damages for defamation it was not sufficient for the plaintiff to say that in his self-estimation the words alleged conveyed some obnoxious meaning to him. He must go further to prove that the obnoxious meaning was conveyed to persons other than himself and the words had lowered him in the estimation 15 of those persons; in other words no civil action for libel or slander could be maintained unless the plaintiff had established that the words complained of had been published to persons other than himself and those persons had understood the words in the defamatory sense attributed to them by the plaintiff. In the instant case, the PTO alone could not constitute the Public or a section of the public. In the absence of evidence that the matter was published to other timber men or members of the public or a section of it, it could not be said that the words exposed the plaintiff to public hatred, ridicule or contempt or in any way injured him in his trade.” From the evidence adduced so far in this matter, I find that the plaintiff has been able to discharge the burden required of him under the evidence act in a civil matter. As stated earlier, the law requires the plaintiff to adduce sufficient evidence to proven his case by a preponderance of probabilities. In law “If a party has to establish his case and therefore assumes the onus of proof, he must call witnesses material to establish that case. In that event, his failure to call a material witness may result in a ruling being given against him for the reason that he has failed to establish that case: see NRCD 323, s 11(1).” It is trite that in the case of doubt or failure to prove a case on the balance of probabilities, the party on whom the onus of proof lies must lose: See Kodilinye v Odu(1935) 2WALR 336, Addo v Owusu (1938) 4 WACA 96 and Wakelin v London & South Western Railway Co.( 1886)56 LJQB 229. This court finds that the plaintiff has been able to establish the essential elements of the tort of defamation in support of his claim. 16 There is enough evidence to support the claims of the plaintiff against the 1st defendant. However, no evidence was led to establish that the 2nd defendant has ever been in charge of the information van and to have used same to make eh said announcement. Also, none of the plaintiff’s witnesses, gave evidence to support the fact that the 2nd defendant at any point in time uttered the said defamatory statements against the plaintiff This court finds that the 1st defendant has defamed the plaintiff ISSUE TWO Whether or not the plaintiff is entitled to damages. General damages was defined in the case of Delmas Agencies (GH) LTD v Food Distributors International LTD [2007] Civil Appeal NO.J4/1/2007 ‘General damages is such as the law will presume to be the natural or probable consequence of the defendant's act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate. The plaintiff in his reliefs before the court is claiming for damages of GH¢ 20,000.00. He claims he has been wrongly accused by the defendants and their actions have seriously dented his reputation and as a result, many of the members of his congregation have left the church. He further states that the stigma has left a mental tole on his wife, his children and himself and causing problems in his marriage and family 17 However, no evidence was led in support of same. The law is that he who alleges must prove. No evidence was led to establish the number of congregants the plaintiff had and how many are left as a result of the actions of the defendants As was held in KHOURY AND ANOR. V. RICHTER (JUDGMENT WAS DELIVERED ON THE 8TH DECEMBER, 1958) and referred with approval in MAJOLAGBE V LARBI& ORS (1965) GLR 190 “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” Having determined, that the statement made by the 1st defendant were indeed defamatory of the plaintiff, it is prudent that some of damages be awarded. This court awards damages of GH¢ 2,000.00 in favour of the plaintiff. CONCLUSION This court haven established that the 1st defendant has defamed the plaintiff, it is hereby ordered that 1. That the 1st defendant withdraws the defamatory comments he made against the plaintiff and render an apology to the plaintiff using the announcement van once at a. Wiamoase market square b. One information Centre in Wiamoase c. Dominase playground in Wiamoase 18 2. Cost of GH¢500.00 in favour of the plaintiff. (SGD) SHIRLEY ASANTE ESQ (DISTRICT MAGISTRATE) 19