GANYA VRS ADEGBE AND ANOTHER (A5/01/2022) [2023] GHADC 1161 (14 June 2023)

IN THE DISTRICT COURT HELD AT ANLOGA ON MONDAY THE 14TH DAY OF JUNE, 2023. BEFORE HER WORSHIP REJOICE ASEYE GADAGOE, DISTRICT MAGISTRATE. ADZORLOLO AWUMEY NICHOLAS GANYA OF ATORKOR A5/01/2022 PLAINTIFF VERSUS 1. KORMI ADZORLOLO ADEGBE 2. WONDER ADZORLOLO OF BLEMAZADO/OBUASI DEFENDANTS JUDGMENT By a writ of summons filed on 30/06/22; the Plaintiff herein sued the Defendants and claimed against them jointly and severally as follows: a. “TWENTY THOUSAND GHANA CEDIS GH¢20,000.00 compensatory damages in lieu of a scientific proof that FIAGBOR ADZORLOLO FRANCIS (deceased) was killed by the Plaintiff. b. An order of the Honourable Court for an autopsy to be performed to determine the cause of death of the deceased, FIAGBOR ADZORLOLO FRANCIS. c. An order of the Honourable Court restraining the Defendants by themselves, their chief mourners, family members, associates, relations and any other person or persons from burying the deceased, FIAGBOR ADZORLOLO FRANCIS by the Defendants on the schedule date of 9th July, 2022 until the said autopsy is conducted on the corpse of the deceased. d. An order of the Court, strictly directed against the Defendants to retract the said false allegation published against the Plaintiff, using the local radio stations ie JUBILEE and SUN CITY FM stations. e. Any other order or orders as the Honourable Court may deem fit and appropriate. f. Costs.” CASE OF PLAINTIFF: The Plaintiff stated that he was invited to meet with a team comprising five members of the Council of Elders of TOGBI GELI ACKUMEY ADZORLOLO III of ATORKOR. They met in KPORDORLOR'S HOUSE. There, the Council of Elders enquired from him if he was responsible for the death of the late FRANCIS FIAGBOR ADZORLOLO who died in 2022. Plaintiff averred that he denied any knowledge how the late Francis died. According to Plaintiff, the Elders proceeded to inform Plaintiff that the first Defendant (D1) had categorically accused him of killing D1’s late brother Francis Fiagbor Adzorlolo. That D1 had Accused him both at ASHAIMAN and at ATORKOR. The Elders asked to know what he intended to do about D1's accusation. Plaintiff suggested he would visit a Fetish/Shrine to vindicate himself and redeem his image. He said the Elders disagreed with him and rather gave him two options which were that; 1. Plaintiff must summon D1 before a Chief; or, 2. He must go to a Court of competent jurisdiction. THE ELDERS ALSO PROMISED TO SHOW UP AND TESTIFY IN FAVOUR OF PLAINTIFF. Plaintiff acted on the advice of the Elders and proceeded to summon D1 before the Arbitration Court of TORGBUI GAWU KPEMINIMI of WHUTI. There, D1 showed up on an invitation and told TORGBUI GAWU he had not uttered the words Plaintiff was ascribing to him. Not satisfied, Plaintiff again commenced the instant action in tort of defamation against D1 and one of the children of the late Francis Fiagbor Adzorlolo. True to their promises, two of the Council of Elders in the persons of the Acting Chairman, MR. COURAGE ADZORLOLO (PW1) and MR. BESAH SEANEFU (PW2) showed up in Court as Plaintiff's witnesses. Plaintiff was given an opportunity to call other witnesses possibly from Ashaiman but he declined the offer and opted to rely on his informants only. EVIDENCE OF PW1: PW1 and PW2 effectively corroborated each other's testimony with slight omissions and additions on either side. The Honourable Court has as a result opted to rely on the evidence in- chief of PW2. EVIDENCE OF (PW2): PW2 testified that he is the Acting Chairman of the Council of Elders of TOGBI GELI ACKUMEY ADZORLOLO III. He succeeded the late Francis Fiagbor Adzorlolo. He averred that he was one of the five Elders who met with the Plaintiff to inquire into whether or not he is responsible for the death of FRANCIS FIAGBOR ADZORLOLO. PW2 insisted D1 had categorically accused the Plaintiff before them at ASHAIMAN, as the one who caused the death of his late brother Francis. PW2 even added that D1 repeated the said allegation before TOGBI ADZORLOLO III at ATORKOR. TOGBI therefore directed that the plaintiff be invited for questioning but the five of them elected to rather go and meet with the Plaintiff. PW2 confirmed that when Plaintiff denied 'killing' Francis, he became furious and threatened to send D1 to a Shrine/Fetish to vindicate his name. PW2 said, they discouraged Plaintiff from pursuing that course of action and advised that he either summoned D1 before a different Chief or sues him in a Court. Then they promised to show up to testify for Plaintiff against the Defendants. PW2 again informed the Court that in spite of their advice to Plaintiff, they proceeded to present their Report to TOGBI GELI ACKUMEY ADZORLOLO III and leaked same to the Plaintiff without the knowledge of the Defendants. PW2 said he did not believe the late Francis said anything to D1 before his demise. DEFENCE OF D1 ON BEHALF OF DEFENDANTS: D1, MR. KORMI ADZORLOLO ADEGBE, informed the Honourable Court that his late brother, FRANCIS FIAGBOR ADZORLOLO had confided in him just three days prior to his sudden death. According to D1, his late brother had told him that the Plaintiff MR. ADZORLOLO AWUMEY NICHOLAS GANYA had a disagreement with him over a project TOGBI GELI ACKUMEY ADZORLOLO “delegated” to him (the deceased), to supervise. Whilst on the project Site, Plaintiff had gone to the place and threatened Francis with the words; "we will see if you will be alive to see the completion of the project". According to D1, his Late brother Francis said, the confrontation occurred in the presence of a certain BESA ADZORLOLO and another Man from Dzita. D1 averred that he asked his brother if he made TOGBI ADZORLOLO III aware of the threat. The late Francis had told D1 he did so through a phone call to TOGBI GELI ADZORLOLO III. D1 said TOGBI does not reside in Ghana. COUNSEL'S SUBMISSIONS: On 15/05/2023, Lawyer for the Defendants prayed the Honourable Court to expunge the evidence of PW1 and PW2 from the record of proceedings. Counsel's request was grounded on the fact that the two Witnesses heard whatever they were testifying to in their capacities as Panel Members of TOGBI GELI ADZORLOLO's Arbitration Court. It therefore did not lie in their mouths to be putting the information in evidence against the Defendants. The Honourable Court in its ruling on 16/05/2023, agreed with Counsel but denied his request based on certain principles and findings. The Court ruled as follows: “The two witnesses PW1 and PW2, spoke directly to how the Plaintiff found himself in the state he is in, and their evidence was very germane to the gravamen of the instant defamation suit. Their evidence shall therefore remain part of the record of proceedings”. At the end of deliberations, the Court set down the following two issues for resolution. 1) WHETHER OR NOT DEFENDANTS UTTERED THE DEFAMATORY WORDS? In every defamation action, the plaintiff is required to prove a number of fundamental elements. The four basic elements requiring proof of the tort of defamation are as follows:  That a statement has been made  The statement is false but purporting to be true;  The statement had the potential or tendency to lower the Plaintiff in the estimation of right thinking members of society;  The statement had resulted in injury or caused damage to the Plaintiff. SIM V STRETCH [1936] 2 ALL ER 1237 AT 1240. PARMITER V COUPLAND [1840] 65M X W 105 AT 108. HALSBURY’S LAWS OF ENGLAND 4TH EDITION. (REISSUE) VOL. 28 PARA 10 It provides: ‘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 disparage him in his office, profession, calling, trade or business.” According to the Plaintiff, the Defendants did not accuse him directly. Plaintiff got infuriated by the information relayed to him by the Five (5) Council of Elders/Committee Members. The intentions of the Council of Elders was clearly revealed in the following submissions by PW1 MR. BESA SEANEFU. Paragraphs '16' and '17' of PW1's witness statement have been reproduced as follows: "16: When the question as regards the allegation was thrown to the Plaintiff, the Plaintiff after denying the allegation retorted and said that the matter be sent to a Fetish place for divination in order to ascertain the truth or otherwise of the allegation being leveled against him. "17: The committee rejected the Plaintiff's suggestion of sending the matter to a fetish and advised that, if the matter is sent to a Chief for arbitration, the committee can present itself at the hearing and narrate its version of the story". Indeed, PW1 and PW2 testified for the Plaintiff and against the Defendants. They also narrated their VERSION OF D1’S STORY. Their version of the story unfortunately was that, D1 categorically accused the Plaintiff of killing the late Francis Fiagbor Adzorlolo. D1 on the other hand denied ever uttering those words. He maintained that he brought the reported threat on his late brother Francis' life to the attention of the Council of Elders as well as to the attention of TOGBI ADZORLOLO III himself. D1 said he did so with the aim of having the necessary action/rites performed before his late brother was buried. D1 maintained he never accused the Plaintiff directly. D1 recounted what his late brother, Francis Fiagbor Adzorlolo told him just three days prior to his untimely death as follows;  That Plaintiff came to Francis on the Building site of Togbi Geli Ackumey Adzorlolo.  That whilst Francis was going about his work on the day, Plaintiff threatened him with death.  That Francis told D1 the incident happened in the presence of a certain BESA ADZORLOLO AND ANOTHER MAN FROM DZITA. Finally,  That, Francis had informed TOGBI ADZORLOLO about the threat. Fortunately, this is not what the Plaintiff is angry about. For emphasis, the Plaintiff is infuriated because Members of TOGBI ADZORLOLO's Council of Elders had informed Plaintiff that D1 had categorically accused him of killing his late brother Francis Fiagbor Adzorlolo. RESPECTFULLY, REQUESTING FOR A PROBE INTO AN ALLEGED THREAT BY THE PLAINTIFF IS CLEARLY DISTINCT FROM CATEGORICALLY ACCUSING HIM OF THE DEATH OF THE DECEASED FRANCIS ADZORLOLO. From the elements of defamation listed above, Plaintiff had failed to establish the first element of proving to this Court that D1 actually uttered the defamatory words that triggered the instant action. Without crossing that initial hurdle, the Court cannot move to establish any of the other elements. The Court impressed upon the Plaintiff to produce at least one other witness aside of his informants but Plaintiff was adamant and insisted on relying on his INFORMANTS ONLY. This court is seised with jurisdiction to ensure individuals’ right to protect their reputations and dignity from unwarranted and malicious attacks are respected. However, from the facts, there is no indication that the First Defendant set out to slander the Plaintiff. Slander must be intentional with the sole purpose of ruining another person's reputation. PW2, Mr. COURAGE ADZORLOLO insisted the deceased would have confided in at least one other Council Member if D1’s claims were true. D1 rebutted that assertion by maintaining that the late Francis confided in TOGBI GELI ACKUMEY ADZORLOLO III himself via a telephone call. The fact remains that, Plaintiff was not privy to what D1 told TOGBI ADZORLOLO III at all. He is in Court because of the stories he heard from the Five Elders. This Court is not in a position to know how the said information was packaged for the Plaintiff. It is however pretty obvious that the impact on Plaintiff was overwhelming. Plaintiff was aware or ought to have known that TOGBI GELI ACKUMEY ADZORLOLO III sent his Elders to him because he saw merit in the complaint of D1; and considered the matter worthy of his time. Yet, Plaintiff joined forces with the Elders to seek redress elsewhere before TOGBI GAWU KPEMINIMI. This Court recognizes Plaintiff's right not to submit to TOGBI GELI ADZORLOLO's authority. The Defendants also have those rights but submitted to TORGBUI GAWU. It is the Court’s considered view that if Plaintiff had at reciprocated Togbi ADZORLOLO's courteous gesture towards him, maybe we would not have been here. From the evidence adduced, the FIVE ELDERS may have diverted from the assignment TOGBI GELI ADZORLOLO gave them and were ON A FROLIC OF THEIR OWN. In the end, the Plaintiff and his two Witnesses/Informants failed woefully to adduce sufficient evidence to prove to this Court that D1 actually said what they ascribed to him. THE ELDERS sent Plaintiff on a "WILD GOOSE’S CHASE"; and ARE SOLELY RESPONSIBLE FOR THE AGITATED STATE OF PLAINTIFF. 2) WHETHER OR NOT THE COUNCIL OF ELDERS OFFENDED THE LAID DOWN STATUTORY PROCEDURES? From the evidence adduced, TOGBI GELI ACKUMEY ADZORLOLO III after receiving a formal complaint from the D1, acted appropriately by sending for the Plaintiff so he could be questioned about the information received. According to the Plaintiff and his two witnesses, the Elders opted to rather go to Plaintiff only to inform him that D1 had accused him of killing the late Francis Fiagbor Adzorlolo. SECTION 90 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798); provides as follows; “Agreement to submit to customary arbitration 90. (1) A report of a dispute by a party to that dispute to a qualified person as provided in section 92, followed by a request to that qualified person to help resolve the dispute shall constitute a submission to customary arbitration. (2) A customary arbitrator to whom a submission for customary arbitration is made by a party shall inform the other party of the submission and invite that other party and the party who made the submission to pay a fee or a token for the arbitration. (3) The payment by the parties of the arbitration fee or token demanded by the arbitrator in customary arbitration constitutes, (a) consent to submit to customary arbitration; and (b) the appointment of the arbitrator. (4) Customary arbitration shall not commence where the other party rejects the invitation by failing to pay the fee or token demanded by the arbitrator. (5) Failure by the other party to accept the invitation within twenty-one days of receipt of the invitation or within a period of time specified by the arbitrator shall be deemed to be a rejection of the invitation. (6) A person shall not be forced or coerced by another person, institution or authority to submit to customary arbitration”. The sequence above was laid out in the 1959 Case of BUDU II VRS CAESAR & OTHERS. A good example was what played out when the plaintiff first summoned D1 before TORBUI GAWU KPEMINIMI of Whuti. D1 was invited to appear before them. The Elders did not leave the Palace to go and meet with him elsewhere. The Court recognizes that the Plaintiff on his own volition, could have refused to submit to the authority of TOGBI ADZORLOLO III. That was however not allowed to happen. Plaintiff was prevented from exercising that right by the Council of Elders. D1 approached the right persons with the requisite capacity to resolve such customary issues. The Council of Elders related the matter to Plaintiff differently, usurping Togbi Adzorlolo’s mandate to hear, d etermine and bring a proper closure to the matter before the late Francis was buried. Paragraph '10' of PW2's witness statement is reproduced below: "The ACKUMEY GELI ADZORLOLO III of ATORKOR have a committee called Council of Elders who is charged with the responsibility to superintend the affairs of the family including organizing funeral meetings and arrive at decision when a member of ADZORLOLO FAMILY is deceased and or any matter(s) touching and appertaining to the welfare or otherwise of a member of the ADZORLOLO FAMILY". It would have been very useful and prudent for the Honourable Court to pay a courtesy call on TOGBI GELI ADZORLOLO III of ATORKOR. That would have enabled him to bring His wisdom to bear on the instant matter. Unfortunately, D1 informed the Court under oath that TOGBI GELI ACKUMEY ADZORLOLO III was out of the country. The fact that the Elders presented their Report to TOGBI GELI ACKUMEY ADZORLOLO III; without letting him know the Plaintiff had gone to another forum to seek redress, speaks volumes about their conduct. The least said about the manner the Council of Elders have taken their office for granted the better. This Court is of the considered view that that the Five Elders misconducted themselves, acted in a self-serving manner and offended the ACT 798. EVALUATION OF THE EVIDENCE: In all civil suits, the primary burden of proof, that is, the duty of producing evidence in support of averments necessary for the court’s decision, is upon the party who made the averment. The primary burden of proof is usually on the plaintiff because he made the primary averments by commencing the action. However, where the plaintiff adduces sufficient evidence in discharge of the primary burden, the onus shifts under section 14 of Act 323 onto the defendant. the Defendant would therefore be required to adduce sufficient evidence in rebuttal, in order to avoid a ruling against him on the particular issue, The first is the production of evidence in proof of the averment, as required by sections 11(1) and 14 of the Evidence Act, 1975 (N. R. C. D 323). The common law defence of qualified privilege allows free communication in certain relationships without the risk of an action for defamation where the person communicating the statement has a legal, moral or social duty to make it; and the recipient has a corresponding interest in receiving it. The scenario painted in paragraph '10' of PW2's witness statement reproduced above, clearly point to the existence of such a relationship between first Defendant on one hand; and TOGBI GELI ACKUMEY ADZORLOLO III and his Council of Elders on the other hand. That means D1’s step taken in a bid to have a purported issue between his late brother Francis and the Plaintiff resolved before his burial, is clearly protected by qualified privilege and not actionable in tort of defamation. At the time the committee members were busy pledging their unflinching desire to tell their version of whichever story if Plaintiff went to another forum to seek redress, those same members had presented their REPORT to TOGBI GELI ADZORLOLO III. This Court takes judicial notice of the fact that the title "TOGBI III" definitely refers to a Chief so the Honourable Court is not sure why the Elders robed TOGBI GELI ACKUMEY ADZORLOLO III of the opportunity to parade the two parties before him, hear their grievances and to effectively deal with all matters customarily. The Elders took on the role of the Palace "Bailiff" and performed miserably at it. In the end, they deviated from the intended course of Togbi Geli Ackumey Adzorlolo III and seriously abused their offices. It is my humble evaluation that, PW2's statement that because D1 failed to facilitate the movement of the ‘Palace Bailiff’, the five of them decided to take on that duty of the said errand person; is in bad taste, not tenable and self-serving. CONCLUSION: A Defendant is Liable in tort of defamation when he makes an untrue statement that has been presented as fact and causes harm to the Plaintiff or to a business to which he/she relates. The statement has to be malicious and lower the claimant in the estimation of right thinking members of society generally. Defamatory statements might include things like allegations of dishonesty, incompetence, immoral or illegal conduct. To examine if a statement is defamatory or refers to the claimant, the court must first decide what the words in question actually mean. This is a complex issue. The court will attribute an ‘ordinary or natural’ meaning to the words complained of, using the benchmark of what the reasonable person would understand by the words. Again, the rules governing Customary Arbitration have been laid down in SECTIONS 90 AND 92 OF THE ALTERNATIVE DISPUTE RESOLUTION ACT, 2010 (ACT 798) referred to supra. SECTION 179 OF THE EVIDENCE ACT 1975 (NRCD 323) interprets various aspects of legal tools in the following manner; 1. ESSENTIAL FACTS: "Are facts which must be established to make out a cause of action or defence as determined by substantive law;" 2. EVIDENCE: "Means testimony, writings, material objects, or any other things presented to the senses that are offered to prove the existence or non-existence of a fact". It is very unfortunate that Plaintiff relied solely on HEARSAY and TWISTED GOSSIP to mount the instant action. Plaintiff has misdirected his anger because his CAUSE OF ACTION lies with the five Elders. They directly accused him of killing Francis Fiagbor Adzorlolo. This suit is in substance, between the Council of Elders and the Defendants. Plaintiff is only their conduit/victim whose emotions, reputation and his level of appreciation of the events are all being toyed with by the Elders; resulting in the acrimonious relationship that has developed between the Parties. Under the prevailing circumstances, this Court shall rely on SECTION 127 (3) OF THE EVIDENCE DECREE, 1975 (NRCD 323) AS AMENDED; and impose liabilities and obligations on the Council of Elders even though they are not Parties to the instant suit.  PLAINTIFF'S CLAIM IS UNSUBSTANTIATED. ORDERS:  DEFENDANTS ARE NOT LIABLE TO PLAINTIFF FOR THE STATED RELIEFS.  PLAINTIFF'S SUIT IS ACCORDINGLY DISMISSED IN ITS ENTIRETY.  COSTS IS WAIVED ON HUMANITARIAN GROUNDS. ANCILLARY ORDERS:  THE FIVE COUNCIL OF ELDERS LISTED BELOW; MR. COURAGE ADZORLOLO MR. BESAH SEANEFU MR. EMMANUEL PENU MR. JONES MICHAEL PENU MR. KWASHIE KUETSIDZO; SHALL COMPENSATE THE PLAINTIFF AND D1 WITH FIVE THOUSAND GHANA CEDIS (GH¢5,000.00). THEY SHALL BE JOINTLY AND SEVERALLY LIABLE FOR THE PAYMENT OF THE SAID AMOUNT. - PLAINTIFF SHALL RECEIVE GH¢2,500.00. - D1 SHALL ALSO RECEIVE GH¢2,500.00.  THE COUNCIL OF ELDERS MUST BE ASSIGNED A WRITTEN/ DEFINED ROLE TO PLAY IN TOGBI GELI ACKUMEY ADZORLOLO'S PALACE.  THESE ROLES SHALL BE IN LINE WITH THE PROVISIONS OF THE ADR ACT, 2010 (ACT 798).  THE HONOURABLE COURT LEAVES THE RESOLUTION OF D1'S ORIGINAL COMPLAINT TO THE DISCRETION OF TOGBI GELI ACKUMEY ADZORLOLO III. SGD. HW REJOICE ASEYE GADAGOE DISTRICT MAGISTRATE, 14/06/23. COUNSEL: PLAINTIFF NOT REPRESENTED. LAWYER FRANCIS DOE-GLAH FOR DEFENDANTS. 12