OSEI VRS. YIADOM (A5/02/2024) [2024] GHADC 582 (21 November 2024)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON THURSDAY 21ST NOVEMBER, 2024 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. A5/02/2024 STEPHEN OSEI YAW PLAINTIFF VRS. ANDREWS ADARKWA YIADOM DEFENDANT JUDGMENT 1. The plaintiff issued a writ of summons on 22nd May, 2024 against the defendant for defamation. The words complained of were that the plaintiff was a thief and an armed robber who has been convicted twice and served a four- and seven-year jail terms respectively. As a result of these unfounded allegations, the plaintiff claims he has been greatly injured in his character, credit and reputation and has been subjected to public ridicule. He is therefore seeking the following reliefs: a. a declaration that the said allegations are false, b. compensation of GH¢50,000.000, c. general and punitive damages, and d. costs. 2. In response, the defendant denied calling the plaintiff an armed robber who had been twice convicted and incarcerated. He however admitted that he told the plaintiff he was a criminal. 3. The issues for determination are: a. whether or not the defendant called the plaintiff an armed robber or a thief, and Page 1 of 13 b. whether or not the plaintiff is entitled to compensation of GH¢50,000.00 as well as general and punitive damages 4. The case of the plaintiff is that he is a businessman who hails from Adansi Atobiase. The defendant is his older brother. According to him, he was resident in Accra and came to Atobiase in 2018. Upon his return, he heard the defendant had given land belonging to him and their three siblings to a certain District Officer by name Tetteh at Atobiase to cultivate cocoa on abunu tenancy for an amount of GH¢300.00. He had a heated disagreement with the defendant on this, and later stopped the said Tetteh from cultivating the land. He then took the land and gave it to one Akwasi Hia to cultivate food crops, after which he returned to Accra. He came back to Atobiase in 2021 and went to harvest plantain on the farm under the care of Akwasi Hia. Upon his return from the farm, the defendant entered his room, took the bunches of plantain to the Police Station, and there accused him of stealing the said plantain from his farm. The case was assigned to Chief Inspector Owen Addo for investigations. After close of investigations, it was found that he had not committed any crime. 5. On 12th March 2023, the defendant lodged a second complaint of stealing five bunches of plantain with the Police Commander at New Edubiase against him, their sister Akosua Kodie and their niece Esther. Consequently, they were summoned to the Commander’s office for interrogation. In the presence of the District Commander and Detective Sergeant Tengey, the defendant called him “an armed robber who has been convicted before.” On 15th March 2023, the New Edubiase Police Commander instructed Detective Sergeant Joseph Tengey to go with him, the defendant, and Nicholas Nyame to look to the farm to look at where the said plantain was allegedly stolen from. On arrival at the farm, the defendant said “Officer coman and look at where the plantains were stolen from. It is Stephen Page 2 of 13 Osei Yaw who came and stole the plantains because he is an armed robber.” He threatened to summon the defendant to court for his statement. In response, the defendant said he had proof to back what he said. 6. On 12th March 2024, the defendant attempted to sell family land located at Old Atetem. When he heard about it, he reported the matter to the police at Fomena to stop the defendant. They were called into the ASP’s office, and there in the presence of and Lance Corporal Sowah, Yeboah, and Akwasi Kwakye the defendant again said he was “an armed robber who had been convicted twice, serving a sentence of four- and seven-year jail term.” In June 2024, the defendant yet again made the same statement against him at the Hwiremoase Police Station in the presence of Stephen Appiah and Yeboah. 7. On 28th September 2023, Abena Boatemaa came to his house to inform him that the defendant had yet again accused him of stealing five bunches of plantain from her and selling same to Akua Agyireba. The defendant then advised Abena Boatemaa to lodge a complaint to the police for the arrest of the plaintiff for selling stolen plantain and of Akua Agyireba for buying stolen plantain. 8. During cross-examination, the defendant insisted that he called the plaintiff a thief, while the plaintiff insisted that the defendant called him an armed robber. This is what transpired: “Q: I am putting it to you that I said you were a thief. I never called you an armed robber. A: That is not true. You called me an armed robber. When I confronted you, you said you had proof. Q: Do you remember I told you, you had a criminal mind while we were on the farm with Sergeant Tengey? Page 3 of 13 A: No, you called me an armed robber. I threatened to slap you but you said you had proof. Q: I am putting it to you that I said you had a criminal mind. I never said you are an armed robber. A: That is not true. You said I was an armed robber. Nicolas Nyame, a tricycle rider was present when you said this. Q: Was Akua Agyireba present when I called you an armed robber? A: No, she was not. But you went to her house and told her not to buy plantain from me again because I am a thief. Q: I never told Akua Agyireba that you are a thief. A: It was Akua Agyrieba who told me you went to her house and told her that I am a thief.” 9. According to his witness Akua Agyireba, she is a trader residing at Atobiase. On 28th September, 2023, she was at the market when Abena Boatemaa came to her and said to the hearing of others that the plaintiff had gone to steal her plantain and sold same to her. She told Abena Boatemaa that she hadn’t bought plantain from the plaintiff. She then asked her who told her she had bought stolen plantain, and Abena Boatemaa replied that it was the defendant. Abena Boatemaa then threatened to have her and the plaintiff arrested for stealing her plantain. She again denied buying stolen plantain and challenged Abena Boatemaa to prove where and how she bought the alleged stolen plantain. She told Abena Boatemaa that if she was unable to prove what she was alleging, she would summon her, the plaintiff and the defendant to court for accusing her of buying stolen plantain. Angry, she went to the plaintiff’s house to inform him about Abena Boatemaa’s accusations and threat. She then told the plaintiff several times of her intention to summon Abena Boatemaa and the defendant to court for disgracing her at the Page 4 of 13 market. The plaintiff told her he was equally fed up with the disgrace and was going to summon Abena Boatemaa and the defendant for accusing him of stealing. 10. It is the case of the defendant that the plaintiff is his younger brother. He has never called the plaintiff an armed robber, he rather called him a thief and a criminal because the plaintiff on two occasions stole two bunches of plantain from his farm. The first incident of theft occurred in 2021 when the plantain stole a bunch of plantain from his farm. He reported a case of stealing to the Adansi Atobiase police station. However, he was advised by elders of the community to discontinue the case, which advice he heeded. Again in 2023, he reported a case of stealing against the plaintiff at the New Edubiase Police station. During interrogation by the District Commander, it came to light that they were siblings. The Commander thus advised him not to pursue the matter to court. Again, he took the advice and discontinued the case. After the case was settled, the plaintiff was issued with a cease and desist letter to stay off his farm. It was at the police station that he called the plaintiff a thief. These incidents occurred 2021 and 2023. He never said the plaintiff had been twice convicted and sentenced to prison. 11. According to the evidence of the first defendant witness Esi Adarkwa, she is a hairdresser. The plaintiff is her brother-in-law while the defendant is her husband. She denied the plaintiff’s allegation that her husband had called the plaintiff an armed robber. According to her, the plaintiff stole two bunches of plantain from the defendant’s farm in 2021 and 2023. The defendant reported the theft in the year 2021 to the Adansi Atobiase Police Station. After the matter was reported to the police, some elders of their community at Adansi Atobiase prevailed on the Defendant not to pursue the case to court. In the year 2023 the plaintiff stole another bunch of plantain from the defendant's farm. The defendant again reported the matter to the New Edubiase Police Station. When, during Page 5 of 13 interrogation, the District Commander found out that the Plaintiff and the Defendant are siblings, he advised the defendant not to pursue the case, which he agreed. The Police Commander then issued a warning letter to the plaintiff to desist from stealing plantain from the defendant’s farm. She has never heard the defendant call the plaintiff an armed rubber but rather a thief. 12. During cross-examination, it came to light how the defendant came by the information that the plaintiff had been stealing plantain from his farm. this is how it unfolded: “Q: Have you ever met me on your husband’s farm? A: I have never personally met you on the farm., but those who saw you on the farm came to tell us. Abena Appiah and Esther are two people who have reported seeing you on my husband’s farm. Q: I am putting it to you that Abena Appiah has never met me on the defendant’s farm. A: Esther told me herself that you have been harvesting plantain from my husband’s farm.” 13. A plaintiff who summons a defendant to court bears the onus to proof his case on the preponderance of probabilities. Section 11(1) of the Evidence Act, 1975 (NRCD 323) provides that “For the purposes 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.” 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.” 14. The Law Reform Commission in its commentary on section 11 of NRCD 323 stated thus: “The party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party Page 6 of 13 with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency. It is for this reason that the phrase ‘on all the evidence’ is included in each of the tests of sufficiency.” 15. In Bisi and Others v. Tabiri alias Asare [1987-1988] 1 GLR 360 the court quoted with approval the explanation of the word probability given in an American case as follows “preponderance of evidence… becomes the triers belief in the preponderance of probability. An American decision Norton v. Futrell, 149, Cal App. 2d 566 (1957) has explained that: The term ‘probability denotes an element of doubt or uncertainty and recognizes that where there are two choices, it is not necessary that the jury be absolutely certain or doubtless, but that it is sufficient if the choice selected is more probable than the choice rejected.” 16. Taylor, JSC (as he then was) expanded on the meaning of section 11(4) and 12 of the Evidence Act, 1975 (NRDC 323) in Odametey v. Clocuh and Another [1989] 1 GLR 14 as follows: “I think the current principle is quite clear at least since 1st October, 1979 when NRCD 323 came into force… The position is this: If the plaintiff in a civil suit fails to discharge the onus on him and thus completely fails to make a case for the claim for which he seeks relief, then he cannot rely on the weakness in the defendant’s case to ask for relief... if, however, he makes a case which could entitle him to relief if the defendant offers no evidence, then if the case offered by the defendant when he does give evidence discloses any weakness which tends to support the plaintiff’s claim, then in such a situation the plaintiff is entitled to rely on the weakness of the defendant’s case to strengthen his case...” 17. Thus, failure to lead sufficient evidence would lead to a ruling against the plaintiff. He cannot rely on the weakness in the defendant’s case to obtain his relief. Nevertheless, a plaintiff can, as the above-mentioned cases state, take advantage of the weaknesses in a defendant’s case to strengthen his only after he has Page 7 of 13 successfully established same. In Nartey v. Mechanical Lloyd Assembly Plant Ltd [1987-1988] 2 GLR 314 at page 344, the Supreme Court speaking through Adade JSC held thus: “It is true that a person who comes to court, no matter what the claim is, must be able to make a good case for the court to consider, otherwise he fails. But that is not to say that having succeeded in establishing some case, he cannot take advantage of conflicting admissions and other weaknesses in the defendant’s case.” 18. In a slander suit between two persons subject to the customary law, the applicable law is the customary law: Ampong v. Aboraa [1960] GLR 29, Attiase v. Abobbtey [1969] C.C. 149. This position had been given statutory blessing in section 54 of the Courts Act, 1993 (Act 459) which provides that in a tort dispute between two persons in Ghana, the personal law of the parties shall be the applicable law. Personal law is defined as the system of customary law to which a person is subject. There is no requirement by parties before a court to elect which law should apply to them. where it is evident from the evidence before the court that the applicable law is customary law, the trial judge must apply same. In Sogbaka v. Tamakloe [1973] 1 GLR 25, Francois J (as he then was) held that “…a party need not elect which law he is proceeding with. If it appears on the consideration of the whole facts that the law applicable is customary law, it should prevail.” The parties being Ghanaians, blood brothers for that matter, and hailing from the same town, customary law will be applied to the facts of this case. 19. It is settled that defamation under customary law is wider than in common law. In Wankyiwaa v. Wereduwaa [1963] 1 GLR 332, Apaloo J (as he then was) held that mere vituperation is actionable under customary law. Sarbah in his “Fanti Customary law” (3rd ed.) at page 113 said this of defamation under customary law: “Words inputting witchcraft, adultery, immoral conduct, crime, and all words which sound to the disreputation of a person whom they are spoken, are actionable.” Page 8 of 13 20. Dr. Danquah in “Akan Law” stated at page 23 that “Thus, although under the Common Law it is only in very exceptional cases that a plaintiff can succeed in an action for slander, the customary law gives full recognition to all claims for damages for insulting or language used verbally against any person. A suit of this nature (slander) is termed in these judgments ‘action for defamation of character,’ and it covers such serious assertions as that a person is an odonkoba, ‘Son of a slave,’ an Obayifo, ‘a witch,’ an odutufo, ‘one who has killed another by sympathetic magic, a poisoner,’ down to such commonplace assertions as that another is a fool, or a beast such as an ass, or a silly idiot.” 21. The law is also settled that slander under customary law is actionable without proof of special damage provided it is false: Afriyie v. Dansowah [1976] 2 GLR 172. 22. Did the defendant call the plaintiff an armed robber and a thief, or just a thief? The plaintiff, aside his testimony, did not lead any evidence to support his assertions that the defendant called him an armed robber. In his evidence, the plaintiff said the defendant called him an armed robber in the presence of several police officers at the Atobiase, New Edubiase, Hwiremoase, and Fomena police stations. He also mentioned one Nicholas Nyame as being present on the day the defendant called him an armed robber on the farm, as well as one Stephen Appiah and Yeboah being present at the Hwiremoase police station when the defendant called him an armed robber. However, he failed to call any of these police officers or the civilians who were present when the defendant allegedly called him an armed robber. The plaintiff should have had no difficulty in calling at least one police officer and one civilian out of the many people present when these words were uttered to support his case, if he was speaking the truth. Page 9 of 13 23. The evidence before this court overwhelmingly shows the defendant called the plaintiff a thief, not an armed robber. The defendant did not deny calling the plaintiff a thief. An admission of a fact by a defendant relieves a plaintiff of the burden to proof same. The only witness who testified on behalf of the plaintiff, testified that the defendant called the plaintiff a thief, not an armed robber. The defendant admitted calling the plaintiff a thief in 2021 and 2023 for stealing two bunches of plantain from his farm. He does not say how he came by the information that the plaintiff had stolen plantain from his farm. The answer is provided by the first defence witness, who when asked if she had ever met the plaintiff on the defendant’s farm replied “I never personally met you on the farm, but those who saw you on the farm came to tell us. Abena Appiah and Esther are two people who have reported seeing you on my husband’s farm.” Thus, the defendant reported the plaintiff for stealing his plantain upon the allegation of two relatives who claimed to have seen the plaintiff harvesting plantain from his farm. these witnesses were conveniently not called to testify. 24. During cross-examination of the plaintiff’s witness, the defendant sought to deny ever calling the plaintiff a thief in her presence or anyone else for that matter. The only place she called the plaintiff a thief was in the office of the District Commander of New Edubiase. He also sought to create the impression that the evidence of the witness concerned a different matter and was thus not related to the issue before the court. However, the witness was resolute that the issue before this court is the consistent assertion by the defendant that the plaintiff had been stealing plantain from his farm and selling some to her. This is what the witness said: “Q: I am putting it to you that you have been deceived by the plaintiff. The issue you have spoken about is not what you have spoken about. Page 10 of 13 A: I have spoken about the stolen plantain. Your sister came to the market to disgrace me about this issue. You later came home and warned me not to buy plantain from the plaintiff because he had been stealing your plantain. This is what I know. I threatened to summon you, but the plaintiff told me he would do it, so I stopped. Q: I am putting it to you that neither my sister not I have approached you about stolen plantain. Therefore, your presence here is not necessary. A: You came to my house, took a chair, sat down and told me to stop buying plantain from the plaintiff because he has been stealing your plantain. Your sister came to the market and said the same thing in the open market. Angry, I went to the plaintiff’s house to warn him to tell his siblings to stop disgracing me. His nephew pushed me to the ground.” 1. The impressions formed by a court about a witness is crucial in evaluating his or her evidence. Section 80(2) of NRCD 323 provides that “Matters that may be relevant to the determination of the credibility of the witness include, but are not limited to the following: (a) The demeanour of the witness (b) The substance of the testimony; (c) The existence or non-existence of any fact testified to by the witness; (d) The capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies; (e) The existence or non-existence of bias, interest or other motive; (f) The character of the witness as to traits of honesty or truthfulness or their opposites; (g) A statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) The statement of a witness admitting untruthfulness or asserting truthfulness” Page 11 of 13 25. Throughout the first plaintiff witness’ testimony and cross-examination, she looked visibly upset by the incident she was recollecting, especially the portion about Abena Boatemaa disgracing her in the market by accusing her of buying stolen plantain from the plaintiff. I find that the witness was truthful and her evidence relevant to the determination of the issues before this court. 26. The defendant who was adamant that the plaintiff was a criminal because he had been incarcerated at James Town, Ussher Fort and Central Prison, Kumasi could not furnish this court with proof of the incarceration of the plaintiff. The defendant did not have evidence to disprove the plaintiff’s claim that he was remanded at the James Town Ussher fort prison, neither could he rebut the plaintiff’s claim that he had never been sentenced to the Central Prison, Kumasi. On 13th November, 2024 this court sent a letter to the Director of the Central Prison, Kumasi requesting for information on whether or not a convict by name Stephen Osei Yaw had been incarcerated at the facility between 2007 and 2012. In a response dated 15th November, 2024, the acting officer in charge replied that no convict by the name Stephen Osei Yaw had been admitted to their facility within that period. 27. The defendant’s labelling of the plaintiff as a thief in 2021 and 2023 could be excused on the ground that he had filed complaints against him for the offence of stealing, and thus called him a thief in the heat of passion. The words were uttered to police officers whose duty it was to investigate the complaint. However, the name calling did not end at the Atobiase and New Edubiase police stations. The defendant proceeded to accuse the plaintiff of not only stealing his plantain, but that of Abena Boatemaa and selling same to Akua Agyireba. Abena Boatemaa, convinced by the accusation of the defendant, went to accuse the plaintiff and Akua Agyireba in the market to the hearing of others. This statement by the defendant to Abena Boatemaa cannot by any stretch of the imagination be said to Page 12 of 13 have been uttered in the heat of passion. They were calculated to injure the plaintiff. This cannot be excused away no matter which way one looks at it. 28. The defendant, when he suspected the plaintiff of stealing from his farm in 2021 and 2023, rightly reported the matter to the police for investigations. However, it was prevailed upon him each time to discontinue the case because of the blood relations between him and the plaintiff. Having failed to prosecute the case to its final conclusion, the defendant cannot go around calling the plaintiff a thief or a criminal for that matter. This is because the allegations he levelled against the plaintiff were never proven in a court of competent jurisdiction. There is no proof before this court to show the plaintiff has been convicted of the crime of stealing, nor of armed robbery. Hence, for the defendant to continuously call the plaintiff a thief, and to go to the extent of accusing him of stealing his plantain on that basis is unacceptable. 29. Slander is essentially a private wrong and properly redressible by an award of damages. The defendant has not tried to recant his words, nor shown any signs of regret. He is convinced that the plaintiff is the one stealing plantain from his farm, even though he does not have concrete proof to support his allegations. Calling someone a thief without concrete proof is slanderous. I will award the plaintiff GH¢10,000.00 as damages and cost of GH¢2,000.00. H/W ANASTACIA Y.A. KARIMU ESQ. [MAGISTRATE] Page 13 of 13