Tamea v Mercy (A5/07/24) [2024] GHADC 790 (12 November 2024)

SITTINGINTHE DISTRICT COURT ATWENCHI IN THEBONO REGION ON TUESDAYTHE12TH DAY OF NOVEMBER, 2024BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB MAGISTRATE) SUITNO. A5/07/24 JULIANA TAMEAOF AKETE ………….. PLAINTIFF VRS YAAMERCY OF AKETE …… DEFENDANT JUDGMENT The plaintiff brought this action against the defendant seeking the following reliefs fromthe courtand against the defendant herein; a. An order of the court to compel the defendant to retract the defamatory words defendant used against the plaintiff to wit; "gyimini, ashawonii, kromfoc" which literally mean "foolish person, prostitute, thief" among other words to the hearing of right-thinking members of the Akete community a suburb of Wenchi where both parties stay and which said defamatory words though false has tarnished theimage ofthe plaintiff herein; 1 b. Costand c. Anyfurther order(s) as thecourt may deemfit tomake. The defendant pleaded not liable to the claims after same were read and explained to herintwi. This court upon an examination of the pleadings filed by the parties and from the plaintiff's particularsofclaim set thefollowing issues downfortrial 1. Whether or not the defendant herein used the words that the plaintiff complained about; 2. Whetherornot thosewordsaredefamatory; 3. Whetherornot thewordswere directedat the plaintiff; 4. Whether or not the words were published to any third party or used at a public place; 5. Whether or not the words defamed the plaintiff or caused any injury to her reputationand image. In establishing her (plaintiff) claim, the plaintiff stated in her evidence-in-chief that she is Juliana Tamea and that she is a trader as well as a farmer and lives at Akete near Wenchi. That she returned from her (plaintiff) husband's house in the morning and met the defendant standing with her (plaintiff) daughter Rukaya Hamza, with the defendant raining insultsonher (plaintiff) daughtertowit "gyiminii ba,beyiwo maame kraman bini fri mefie anim", which means a fool’s child come and pick your dog's 2 faeces from my house. Plaintiff said because she (plaintiff) owns a dog she then instructed her(plaintiff) daughtertopick thesaid dogfaeces fromthere. Plaintiff said a month later, the defendant and one Kweku Takyi were quarrelling when the said Kweku Takyi told the defendant in the process that she (plaintiff) was his witness to all what the defendant was saying to him and all what was happening. Plaintiff said whiles she (plaintiff) was standing in front of her house, the defendant then started raining insults on her (plaintiff). That the defendant told in twi; "woye gyiminii, kromfoc, wone woba Lawrencia ye ashawofo" which means you are a fool, thief, you and your daughter Lawrencia are prostitutes among other defamatory word. Plaintiff said she informed her (plaintiff) uncle about what the defendant had done and the uncle advised her (plaintiff) to report the defendant to her (defendant) father. Plaintiff said after she reported the defendant to her (defendant) father, the defendant's attitude towards her (plaintiff) became worse as the defendant kept insulting and defaming her (plaintiff). Plaintiff said she reported the defendant to the Assemblyman for Akete Electoral Area but the defendant still continued with the insults each time she (plaintiff) sees her (defendant). Plaintiff said all efforts made to get the defendant retract the words failed while the defendant continued with the insults. Plaintiff said she therefore decided to come tocourt. The sole witness for the plaintiff (pw1) was one Takyi Francis who said he is a welder and lives at Akete. That he knows the parties herein. Pw1 said he and the parties are 3 residents of Akete and are also neighbours. That somewhere last year (2023) that he (pw1) and one woman called Theresa Nuro had a misunderstanding concerning a fowl both of them were claiming ownership of. That the fowl case ended up at the Wenchi Police Station where the said Theresa Nuro was adjudge the owner of the fowl and same given to her. Pw1 said because of that each time the defendant sees him (pw1) she (defendant) laughs and rain insults at him (pw1). Pw1 said he was thenbathing one day when the defendant tried to enter the bathroom but he (pw1) used his towel to cover himself. That when he came out the defendant then held his (pw1) towel and slapped him (pw1). Pw1 said whiles the defendant did all that the plaintiff herein stood in front of her house, so he (pw1) then told the plaintiff if she had seen all what the defendant did and that the plaintiff should be his (pw1) witness. Pw1 said after he told the plaintiff that, the defendant then started raining insults onthe plaintiff to wit; "bayifour, komfour, ashawonii, pragya befawo ne woba ko Wenchi kobo ashawo, wowia nkrofo nnwan, nkok) k) wafuom, gyiminii", which literally means "witch, thief, prostitute, motor tricycle conveys you and your daughter to Wenchi for prostitution, you steal peoples’ sheep and fowls to yourfarm, foolish person tothe hearing of their neighbours. Pw1 said that is what he knowsabout the case betweenplaintiff and the defendant. Inher evidence in chief, the defendant told the courtshe is Mercy Kyeremaa. That she is a trader and farmer and lives at Akete. That she knows the plaintiff who is a resident of Akete. That on the 5th day of October 2023 they were celebrating their yam festival at Akete. That after the yam program, one Kweku Takyi (pw1) passed through her 4 (defendant) house and told her that the krontihene has tagged him (pw1) as a thief and that he stole a goat. That whiles they were talking the krontihene came and told pw1 that the issue of the goat was a thing of the past. That whiles she (defendant) was then tracing her (defendant) son she had sent to buy her sachet water, she (defendant) saw the krontihene and otherstanding and thatpw1 had stolena henand was been attacked by krontihene and his people. That it was there that the said Kweku Takyi (pw1) told her he will put her (defendant) into serious trouble and so has connived with the plaintiff to go and summon her (defendant). That she (defendant) has no problem with the plaintiff and that it is pw1 who is creating the problems. Defendant therefore prayedthe courttostrike the case oftheplaintiff out. The sole witness of the defendant also told the court she is Gyabaah Mary and that she is unemployed and lives at Akette. That she knows the plaintiff. She also knows the defendant who is her biological mother. That on the 5th day of October 2023, she was in their house with defendant when one Kweku Takyi (pw1) came. That she heard pw1 telling defendant that they said he (pw1) is a thief and hadstolen agoat. That defendant asked pw1 who made those allegations and pw1 mentioned the krontihene. That the krontihene heard what they were saying and came there. That the krontihene told pw1 the issue about the goat had passed and so pw1 should not revisit same. That immediately they all left the scene defendant sent her son to go and buy sachet water for her (defendant). That when the son was delaying, the defendant decided to trace him. That after the defendant left she (dw1) heard a loud noise outside and rushed out 5 to see what was going on. Dw1 said she saw Kweku Takyi (pw1) being attacked by the krontihene and his members that he (pw1) had stolen a hen. Dw1 said she knows that Kweku Takyi blamed the defendant that her (defendant) son was the one telling people that he (pw1) stole a hen and that he (pw1) will put defendant into trouble. That she (dw1) knows it is because of what pw1 told the defendant that is why he (pw1) connived withthe plaintiff totake the defendant tocourt. It is important to observe after a careful evaluation of the evidences that, the plaintiff said whiles the defendant was engaged in a quarrel with pw1, pw1 then called her (plaintiff) to bear witness to what the defendant was doing and this was because the plaintiff was standing by and saw all what went on as neighbours. This was corroborated by the said pw1, kweku Takyi when he testified before the court as a witness forthe plaintiff herein. The witness, pw1 told the court he had an issue with one Theresa Nuro over a fowl and the defendant who stood by started laughing at him (pw1) and rained insults. This indeed was also corroborated by the defendants own witness Gyabaah Mary who said the defendant is her biological mother. The witness dw1, Gyabaah Mary told the court whiles she was with the defendant the said Kweku Takyi (pw1) came and said the defendant and others called him (pw1) athief and that he (pw1) stoleagoat. So clearly the fact has been established from the evidence that the defendant had an issue with pw1, Kweku Takyi and which said issue had nothing to do with the plaintiff hereineventhoughtheplaintiff stood byas aneighbor. 6 And again, it must be stated that the claim by the defendant that the said Kweku Takyi (pw1) had an issue with the krontihene and not her (defendant) is not accurate and same has beencontradicted by herown witness(dw1) GyabaahMary. Again, it must be stated that the plaintiff contended that when pw1 called her out to bear witness to what the defendant was doing and saying to him (pw1) the defendant then directed the insults at her (plaintiff) and in the presence of pw1 and other neighbours, defendant called her (plaintiff) awitch, a prostitute and athief among other words of defamation. This the plaintiff said happened without any provocation. This again was confirmed by Kweku Takyi (pw1) who said he called the plaintiff to bear witness to what the defendant did to him (pw1). The witness (pw1) told the court that the defendant called the plaintiff a thief, a prostitute, a witch and that pragya riders convey plaintiff and her daughter to Wenchi for prostitution. These clearly are the same words the plaintiff told the court the defendant used on her. And it is important to note that neither the defendant nor her sole witness Gyabaah Mary controverted the fact that the defendant used those defamatory words onthe plaintiff safe to say that Kweku Tayi told defendant during the said exchanges between himself (pw1) and the defendant that, he (pw1) will put defendant in a serious trouble and so that is why pw1 has connived with the plaintiff to bring this action against the defendant. I find this argument very moot. This is because if the defendant initially had issues with pw1, Kweku Takyi and who claimed the defendant called him a thief, what would have prevented him (pw1) from suing the defendant. Obviously if the witness (pw1) felt 7 defamed and wanted to take any legal action against the defendant, that would have beenwell withinhis (pw1) right todo so. If pw1 did not do so and the plaintiff who equally felt defamed has brought an action against the defendant, that cannot be said to have been instigated by pw1 as there is no evidence before this court to support that claim. As a matter of fact, the only reason why from the evidence that one can ascribe to the decision by Kweku Takyi (pw1) to testify for the plaintiff herein would be the fact that he called the plaintiff to bear him witness in the heat of Kweku Takyi's issue with the defendant. So if the defendant was not happy that Kweku Takyi called plaintiff as a witness and for which reason the defendant rained such insults on the plaintiff, the plaintiff has every right to seek legal redress as she justifiably done. It is therefore clear that the defendant herein used those wordsagainst theplaintiff just because pw1 called the plaintiff tobe his witness. Having therefore established the fact that the defendant herein used those words, it is important to state that to call a person a thief, a prostitute and a witch is obviously reducing the person to public ridicule and reducing her to a common criminal as stealing is a crime. If these words are therefore defamatory and the defendant used same onthe plaintiff, thenclearlythe defendant defamed the plaintiff. The evidence has also shown that where the defendant used those words was in front of the house of the plaintiff where pw1 said the plaintiff stood at the time he (pw1) called the plaintiff to bear him witness. The frontage of the house of the plaintiff clearly is a place opened to all neighbours and other people who pass by. This then makes the 8 place a public place. Indeed, the said defamatory words were also spoken by the defendant in the presence of other people including pw1, dw1 Gyabaah Mary and otherswho were also present atthe scene. Finally, it must be stated that the plaintiff as a mother and an adult member of the Akete community has a reputation and which reputation has undoubtedly been injured by the said false and defamatorystatementsmade by the defendant herein. Fromthe evidence thereforeI found the following asfacts; 1. The parties herein are residents of Akete near Wenchi and who are also neighbours. 2. That the defendant had a quarrel with pw1 in the presence of the plaintiff and in thecourse ofwhich pw1 called theplaintiff to be his(pw1) witness. 3. That the defendant got offended by the plaintiff being called as witness and rained insults onthe plaintiff. 4. That thewords thedefendant used whichthe plaintiff stated aredefamatory. 5. That the words or statements are untrue ad have also caused injury to the image and reputationofthe plaintiffin the Aketecommunity. The law on the burden of prove in civil trials is that the party who in his/her pleadings or writ of summons raise issues that are essential to the success of their case assumes theonus ofproof. SeeFaibiVs State HotelsCorporation [1968] GLR, 176. 9 On the standard of proof, required of the party laying the claim, the proof is by a preponderance of the probabilities as provided for in sections 11 (4) and 12 (1) of the Evidence Act 1975(NRCD323). Section11(4) ofNRCD323provides that; Section11 (4)"in othercircumstances the burden ofproducing evidence requires aparty to produce sufficient evidence so that on all the evidence a reasonable mind could conclude thatthe existence ofthefact was moreprobable thanitsnon-existence". Then section 12 (1) states that; "except as otherwise provided by law, the burden of persuasion requiresaproof bythe preponderance ofthe probabilities". This is explained further in section 12 (2) to mean the degree of certainty of belief in the mind of the court by which the court is convinced that the existence of the fact was more probable than its non-existence". In a claim for damages for defamation, the law has been set out in the case of Abu Vs BPI Bank [2014] 66 GMJ 115 at 144-144 that "words are capable of being defamatory of a plaintiff if they turn to hold him up in contempt, scorn or ridicule or if they turn to lower him in the estimation of right thinking members of the society generally or if they caused himto be shown oravoided". Therefore, in proving that the plaintiff was defamed, the plaintiff must show that defendant used the words complained about and that the words were directed at the plaintiff and also that the words are defamatory as noted in the case cited above. There 10 however some legal defences to a claim of defamation. These as enumerated in the case ofAbu Vs BPI Bank (supra) arethat; a. The defendant must show thatthe wordsused amountedto afair comment; b. That theywere used in theheat ofsome verbal exchangesor c. That thewords orstatementsare true. In the instant case however the evidence led showed that the defendant herein used the said defamatory word on the plaintiff. It was also been shown that the defendant was engaged in some verbal exchanges with one Kweku Takyi (pw1 herein) and that had nothing to do with the plaintiff. That the insults directed at the plaintiff by the defendant was unprovoked and completely without any justification as the plaintiff did not do anything to warrant the said such insults. That the words used were false as the defendant could notprove anyofthem. From the evidence and the law therefore, it is my considered conclusion that the plaintiff has proved her claims against the defendant and judgment is hereby entered forthe plaintiff. The reasonsfor theaboveconclusion include; 1. That the defendant and the plaintiff are neighbours at Akete near Wenchi and who have hadastrained relationship. 2. That on the day in question the defendant was quarreling with one Kweku Takyi (pw1) and pw1 called plaintiff tobe his witness. 11 3. That the defendant then redirected her outburst to the plaintiff and used the wordscomplained about onthe plaintiff. 4. That the said words defamed the plaintiff in the presence of all the other people therebycausing hereminence embarrassment and damage toher image. 5. That the action of the defendant was unjustified and unfair as the plaintiff never did anything tothe defendant. 6. That the plaintiff proved her claims on the preponderance of the probabilities and as required by law. The following ordersare herebymade; 1. The defendant is ordered to within seven (7) days from today 12th day of November2024retract thesaid wordsand renderanapologytothe plaintiff. 2. An amount of GH₡2,000.00 is awarded against the defendant and for the plaintiff in generaldamagesfor the injurycaused tothe image ofthe plaintiff. 3. Cost of GH₡1,000.00 is awarded for the plaintiff and against the defendant herein. .......................................... 12 ISSAHABDUL-WAHAB (MAGISTRATE) 13