Veronica Vrs Darkoaa [2023] GHADC 135 (24 February 2023)

IN THE DISTRICT MAGISTRATE COURT DUAYAW NKWANTA, AHAFO REGION – A. D. 2023 SUIT NO: A5/03/2021

ANIMA VERONICA V 1. DARKOAA 2. MAAME YAA

JUDGMENT

INTRODUCTION

ACTION Plaintiff herein sued the Defendants on the following terms: Particulars of claim a. “The plaintiff claim from the defendants is for General Damages for tarnishing her reputable image in the public place and in the presence of rightful thinking people of Yamfo. To wit Tuutuu nii baa, sansanii baa which literally means prostitute and useless woman with decay teeth, an old lady whose virginal sweet her and always use her bottom to attract men.” b. General Damages for unlawful battery. Facts 1 | P a g e From the summary of subject matter of claim accompanying the writ of summons and subsequently in the Statement of Claim, Plaintiff avers that She is a farmer and lives in Yamfo and that on 30th June 2021 a quarrel ensued between her in-laws and the Defendants. According to the Plaintiff, she went to separate them and immediately 1st Defendant saw her she started insulting her to wit: Tuutuu nii baa, obaaberewa a wotwemu ye wo de which literally means prostitute and useless woman, an old lady whose “vagina sweets her” and always use her bottom to attract men and could not wait for her husband when he travelled in the presence of rightful thinking people at Yamfo. (SIC). Plaintiff says per the above statements, the 1st Defendant has ridiculed her hard-won reputation as a married woman. Plaintiff claim against the 2nd Defendant is that 2nd Defendant assaulted her without a just

cause. According to Plaintiff, those allegations by 1st Defendant have tarnished her hard-won reputation and the 2nd Defendant assaulted her without just cause, hence the action. Plea: The Defendants pleaded not liable to the reliefs sought by the Plaintiff setting up the matter for trial. The case of the Defendants The Defendants denied the claims of the Plaintiff. 1st Defendant’s defence is essentially that she has not defamed the Plaintiff whiles 2nd Defendant’s case is simply denial of the case of assault/battery the Plaintiff has made against case. 2 | P a g e Written Statements The suit being an action for defamation, the court ordered parties to file written statements (pleadings) in accordance with the requirements of C. I. 59 (Order 18 Rule 1(3) which said order the parties complied with.

ISSUES FOR DETERMINATION 1. Whether or not the Plaintiff has made a case of defamation against the 1st Defendant 2. Whether or not the Plaintiff has established her case of assault/battery against the 2nd Defendant

MODE OF TRIAL The court ordered parties to file pleadings or written statements in accordance with the requirements of Order 18 rule 1 (3) of C. I.

59. The court accordingly did direct parties to file witness statements. The Plaintiff filed three (3) witness statements, one by herself and by two other witnesses (PW1 & PW2). However, at the trial only the Plaintiff and one other (PW2) testified. The Defendants filed also filed two witness statements, one by 1st Defendant and another by 2nd Defendant. STANDARD OF PROOF, BURDEN OF PROOF AND PERSUASION A writ of summon as a form of civil litigation, the standard of proof is one on balance of probabilities or preponderance of probabilities. The proof as prescribed in civil trials is provided in section 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). These sections on burden of proof, burden of persuasion and burden of producing evidence, provide thus: 3 | P a g e (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a

ruling on the issue against that party. 12 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the 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. As was held by the Supreme Court per Adinyira, JSC in Ackah v Pergah Transport Ltd [2010] SCGLR 728 at p. 736: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of his claim may fail…” 4 | P a g e

THE TRIAL ITSELF

EVIDENCE LED BY THE PLAINTIFF Evidence of the Plaintiff Plaintiff testified that on 30th June, 2021, she was in her house when she heard a quarrel so she went to the scene and realise that the Defendants and their in-laws were quarrelling and testified further that the moment the 1st Defendant saw her (Plaintiff), she quickly turned her anger on her that all the nonsense Plaintiff told her mother reached her and 2nd Defendant also held her hand and said the Plaintiff has been going round talking of her matter to the community. The evidence further has it that 1st Defendant insulted her that… “tutuni baa, obaaberewa a wotwemu ye wode, prostitute and useless woman, an old lady whose vagina sweetens her and always use your bottom to attract men and could not wait for your husband who has travelled abroad.” Plaintiff testimony also has it that the alleged insults happened “in the presence of one Ebenezer Adu. According to the Plaintiff evidence-in-chief, the said Ebenezer Adu recorded the said insults on her. Evidence of Kyerewaa Juliana (PW1) Kyerewaa Juliana filed the witness statement as PW2 but the one who filed as PW1 did testified in court so for chronological purposes, Juliana testified as PW1. PW1 testified that the Plaintiff is her niece. PW1 further testified that at the time of the quarrel, she was not there. According to PW1’s evidence-in-chief, she was from

market going home when she met the Plaintiff and 1st Defendant’s mother talking and 1st Defendant’s mother pleaded with Plaintiff to take care of her mother because she is old and she has started to distribute her belongings of which some were given to her (1st Defendant’s mother). Further evidence of PW1 is that she (PW1) “advised the Plaintiff to take good care of her mother and told 1st Defendant’s mother to pick and keep belongings 5 | P a g e of the Plaintiff’s mother anything she brings some to her” and that “after the conversation she left with the Plaintiff home”.

EVIDENCE LED BY THE DEFENDANTS Evidence of the 1st Defendant 1st Defendant testified that on 22nd June, 2021, the mother-in-law and sister of the Plaintiff came to insult her in her house without any course (sic) and she also insulted them and left them and entered her room to sleep. Further, 1st Defendant testified on the said date and during the exchanges, the Plaintiff was nowhere and did not come there. 1st Defendant testified that she did not see, meet let alone insulting the Plaintiff as alleged by the Plaintiff and further that she did not also see the 2nd Defendant in the exchanges that occurred. 1st Defendant also maintained in her evidence in chief that the incident took place in her (1st Defendant’s) house and the said Adu Ebenezer was not present as alleged by the Plaintiff. Evidence of 2nd Defendant 2nd Defendant evidence is that she had gone to sell kenkey and was returning home and met the Plaintiff in front of the 1st Defendant’s house around 6:30pm and the Plaintiff upon seeing her (2nd Defendant) held her dress by the chest and questioned if she had told somebody something about her without telling her exactly the words or who she might have told something about her to. 2nd Defendant testified that she became confused and removed Plaintiff’s hands off her and she departed. The Court’s Analysis and Opinion It is trite law that for every case there is a burden

of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case. See sections 10-17 of or Evidence Act 1976 (Act 323). The quest of the court here is to 6 | P a g e determine whether the Plaintiff has proven her case of defamation against the 1st Defendant and that of assault/battery against the 2nd Defendant. Defamation- meaning Defamation has been sufficiently defined in both academia and case law. Defamation according to Milmo and Rogers in their book Gatley on Libel and Slender, 10th Edn, Sweet and Maxwell, London, 2004, is the publication of an untrue statement which reflects 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. In Winfield & Jolowicz on Tort (13th edition, 1989), W. V. H Rogers (ed) Sweet & Maxwell, London, (International Student edition) 1990, at p. 294, Defamation is defined as: “the publication 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 case of Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790, which laid out the principles of that tort at common law, at p.801-802 of that judgment, Benin JSC restated the common law principles on the definition and law of

Defamation. Quoting Halsbury’s Laws of England (4th ed) (Reissue) Vol 28 page 7, para 10 he defined the tort as follows: A defamatory statement is a statement which tends to lower a person in the estimation of right-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 in his office, profession, calling trade or business.” Benin JSC then went on to explain that “There are two steps involved in establishing that the 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.” 7 | P a g e From these, he teased the principles that in establishing that a publication was defamatory the plaintiff must plead and lead evidence on the following matters in order to succeed: - i) there was publication by the Defendant ii) the publication concerned him, the Plaintiff iii) the publication was capable of a defamatory meaning in its natural and ordinary sense. iv) alternatively, or in addition to (iii) above, that from the facts and/or circumstances surrounding the publication, it was defamatory of him. Was the alleged statement by the 1st Defendant defamatory to the

Plaintiff? There is no doubt or question that the alleged statement by 1st Defendant against the Plaintiff is capable of defamatory meaning. For emphasis, we restate the alleged statement here: …” tutuni baa, obaaberewa a wotwemu ye wode, prostitute and useless woman, an old ladt (sic) whose vigina sweetens her and always use your bottom to attract men and could not wait for your husband who has travelled abroad.” The Plaintiff’s case is that as a married woman, those words have tarnished her image within the Yamfo township. The court takes the view that the alleged statement is capable of being defamatory. As can be gleaned from the definition of defamation above, the alleged statement such as useless and prostitute has the potential to affecting a person’s reputation and to lower a person’s reputation in the estimation of right-thinking members of society. The court takes the view that the alleged statement being complained of by the Plaintiff is capable of being defamatory. Did the Plaintiff prove her case that the said words were said or published by the 1st Defendant? Upon establishing that the alleged words are capable of being defamatory, the next task of the court is to establish whether the said words were published. 8 | P a g e 1st Defendant denied uttering or saying the said defamatory words to the Plaintiff and in effect Plaintiff had the burden to prove otherwise

that the 1st Defendant said the said defamatory. In simple terms, who alleges must prove. Plaintiff vigorously pursued her case that the 1st Defendant said the said defamatory words. Plaintiff testified that one Ebenezer Adu was present when the insults were cast on her. Whiles the said Ebenezer filed a witness statement as PW1, Plaintiff did not bring her proposed witness to court during trial. The court therefore placed no value on the witness statement that he filed. Failing to bring the said Ebenezer to the trial was effectively disastrous to the case of the Plaintiff. Whiles corroboration is not necessarily needed to prove a case, in the instant case corroboration was vital to the success of the case. Plaintiff indeed mentioned the said Ebenezer in her evidence-in-chief making him a material witness in her case and her failure in producing the material witness effectively ended her case. Equaling damaging to the case of the Plaintiff was the evidence of PW1. PW1 testified that “at the time of the quarrel I wasn’t there” and confirmed same during cross-examination and that part of the cross-examination is produced below: Q. You have stated in your evidence-in-chief (p.4) that at the time Plaintiff and the Defendants were quarrelling you were not present. Do you stand by it A. Yes, I was not present The conclusion here is that PW1’s evidence did nothing in aiding the

Plaintiff established her case. Conclusion on issue 1 Plaintiff failed to prove a case of defamation against 1st Defendant. Assault/Battery- meaning 9 | P a g e Section 85 of Act 29 says assault includes battery. Assault and battery have been defined in section 86(1) of the Act 29 to mean the situation where a person, without the other person’s consent and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting him anger, he forcibly touches the other person or causes another person, animal, or matter to forcibly touch him. Again, assault has been defined in the Osborn’s Concise Law Dictionary (8th Edition) edited by Leslie Rutherford and Sheila Bone as “… any act committed intentionally or recklessly, which lead another person to fear immediate personal violence. An assault becomes battery if force is applied without consent”. Did Plaintiff prove a case of battery against the 2nd Defendant? Plaintiff”s case against 2nd Defendant is based on assault/battery involving the 2nd Claim that the moment the 2nd defendant saw her, the 2nd assaulted her without any course (sic). Plaintiff testified on the alleged assault as follows: … “the 2nd defendant also hide (sic) the plaintiffs (sic) hand and said the plaintiff has been going around talking about her matter to the community”. The 2nd Defendant denied the assault/battery charge against

her in the Defendant’s Statement of Defence. Since the Plaintiff pleaded the assault/battery, the burden of proof rested with her, for it is trite law that he who alleges assumes the initial burden of producing evidence. In the instant action, assault/battery are criminal offences and thus the standard of proof is beyond reasonable doubt, although in civil trial. On the alleged assault/battery against the 2nd Defendant, the court takes the view the Plaintiff evidence did not met the required standard of proof of beyond reasonable doubt. Conclusion on issue 1 Plaintiff failed to prove her case of assault/battery against the 2nd Defendant. 10 | P a g e Conclusion The action of the Plaintiff fails in its entirety and is accordingly dismissed. Cost of GHC1.000.00 is awarded against the Plaintiff.

STANLEY ADJEI 24/02/2023 11 | P a g e