IBRAHIM MAHAMA VRS BERNARD ANTWI BOSIAKO & 2 ORS. (GJ/1213/2020) [2023] GHAHC 578 (20 October 2023)

IN THE HIGH COURT OF JUSTICE GHANA (GENERAL JURISDICTION COURT 4) HELD IN ACCRA ON FRIDAY THE 20TH DAY OF OCTOBER, 2023 BEFORE HER LADYSHIP OLIVIA OBENG OWUSU, (MRS.) J. SUIT NO: GJ/1213/2020 PLAINTIFF/APPLICANT IBRAHIM MAHAMA 10 PATRICE LUMUMBA STREET WEST AIRPORT, ACCRA :: VRS 1. BERNARD ANTWI BOSIAKO (CHAIRMAN WONTUMI) 2. WONTUMI MULTIMEDIA CO. LTD (WONTUMI COMMUNICATIONS) H/NO. 147 ESERESO KWABRAFO AREA KUMASI – ASHANTI REGION 3. KENNETH MENSAH ACCRA :: DEFENDANTS/ RESPONDENTS ======================================================= ======================================================= R U L I N G This is an Application by Learned Counsel for the Plaintiff/Applicant praying for an order striking out paragraphs 6, 7, 9 and 12 of the 1st Defendant/Respondent’s pleadings as well as 7, 8 and 10 of the 2nd Defendant/Respondent’s pleadings contained in the Statement of Defence filed and a further order dismissing the said defences as Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 1 | P a g e i. ii. iii. An abuse of the process of the Court. Scandalous , frivolous or vexatious It may prejudice, embarrass or delay the fair trial of the action. The Application is accompanied by an affidavit. The Defendants/Respondents vehemently oppose the Application and have filed affidavits in opposition. The Plaintiff/Applicant will, for ease of reference, be described hereafter simply as the Plaintiff and the Defendants/Respondents as the 1st and 2nd Defendants. Counsel on both sides advanced arguments in support of their respective positions as disclosed in the affidavits. Counsels’ submissions for the sake of brevity would be summed up. Arguing in support of the application, Learned Counsel for the Plaintiff submitted as follows: 1. The defence of Partial Justification is not a valid defence to the instant action. It may be a defence under Australian law by reason of the statutory inroads made but it is certainly not a defence under our laws or common law. The defendants do not expressly deny making the said publication. Rather in what appears to be novel to our jurisprudence in the area of defamation they rather seek to plead the defence of “Partial Justification”. This defence is not in essence a defence to a defamation suit but rather it goes to mitigation in damages. The defendants have therefore failed to raise any justifiable defence to the instant suit which warrants a full scale trial. 2. The defences filed by the defendants amount to an abuse of the Court process because the issue pertaining to the address of the 3rd Defendant was dealt with and same was dismissed by the Court on 10th February 2022 as unmeritorious. Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 2 | P a g e 3. The Pleadings demanding that the Plaintiff discloses how he acquired his businesses and his income lack a legal basis. They are scandalous, frivolous vexatious and calculated to embarrass the Plaintiff. It is clear on the face of the defences without further recourse to any evidence that the defences filed are without merit, legally untenable and frivolous and the Court has a discretion to dismiss same. Arguing to the contrary Learned Counsel for the 2nd Defendant submitted as follows: 1. While the power to strike out a claim or defence is an important tool in the administration of justice it must be used with great caution. Striking out the 2nd Defendant’s defence would prematurely deprive it of its right to a fair trial and consequently result in injustice being done. 2. Also the 2nd Defendant’s defence is based on valid legal arguments and evidentiary support. It is not frivolous, scandalous or an abuse of the Court’s power. The Court should thus consider the merit of the 2nd Defendant’s defence. 3. A statement of defence cannot be struck out summarily just because it appears weak or unlikely to succeed. As long as it discloses a reasonable defence it must be allowed to proceed to trial where the evidence can be tested and the merits of the defence assessed. It is imperative that I state at this point that although the Court asked Counsel on both sides to submit Written Submissions on the Application Learned Counsel for the 1st Defendant failed to do this. Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 3 | P a g e In spite of his failure to do this I have examined his affidavit in opposition, paying due regard to the grounds on which he resists the application. The salient points in his affidavit in opposition are captured in paragraphs 6,7, 8, 12,13, 14, 15, 18 and 19. They read as follows:- “6. That I shall contend that Plaintiff’s Application in its form and content is not poorly drafted but highly incompetent and lacks merit and same be dismissed by this honourable Court. 7. That 1st Defendant/Respondent denies paragraphs 6, 7, 8, 9 and 10 of Plaintiff’s averment and shall contend that in law 1st Defendant’s defence does not sin against Order 11 Rule 18 of CI47 and the defence filed by 1st Defendant is permissible by law and same is competent in law. 8. The 1st Defendant denies paragraph 11 of the averment and says in answer that the Plaintiff has failed through the application to demonstrate in law how frivolous, scandalous and vexatious 1st Defendant’s defence is. 12. That I shall further contend that since paragraph 6 and 7 raise issue concerning allegations of fraud the proper procedure is that the matter must be interrogated and investigated through full scale trial. 13. That I shall contend further that the issue raised in paragraph 6 and 7 have not been determined by the honourable Court and granted that it has been determined this court has a legal duty to hear the parties by the exhibition of the record of Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 4 | P a g e proceedings and the alleged judgment and not by this incompetent procedure been adopted by Plaintiff. 14. Paragraph 14 is denied and the 1st Defendant shall contend through counsel that the defence of partial justification is valid in law and refer this Court to HARRY’S DEFAMATION BRITISH AND AUSTRALIAN DEFAMATION Lawyer in their famous book titled “The Defence of Partial Justification” as well known case of WILSON VRS BAUER MEDIA. 15. That the 1st Defendant denies paragraph 15,16 and 17 of Plaintiff/Applicant averment and in answer says the alleged paragraph 6,7,9 and 12 of the 1st Defendants defence that Plaintiff seeks to impugn and strike out has been an abuse of the Court process, vexatious, scandalous, frivolous and that the defence raises no reasonable defence in law is an attempt by Plaintiff to deny 1st Defendant his fundamental human right under the constitution to fair hearing and to drive the 1st Defendant from the seat of Judgment. 18. That I shall further contend in law that the Application before this Court has not demonstrated any reasonable grounds for the pleading of the 1st Defendant to be struck out that a careful consideration of the Plaintiff in the defence disclose a reasonable defence that was fit to be investigated and that the mere fact that the defence filed before this Court is alleged to be weak and unlikely to succeed does not authorize it to be struck out. 19. That I finally contend that on the issue of paragraph 6 and 7 of the Defence the question raised by the Applicant on the question of estoppel by previous proceedings and the related identity of the 3rd Defendant are matters that would have to be interrogated at the trial of the action.” Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 5 | P a g e From the arguments presented by Learned Counsel the following issues which fall to be determined by the Court are whether the pleadings complained of are i. ii. An abuse of the process of the Court. Scandalous , frivolous or vexatious iii. May prejudice, embarrass or delay the fair trial of the action. Order 11 rule 18 of The High Court (Civil Procedure) Rules, 2004 (C. I. 47) C. I 47 contains provisions by which offending pleadings may be struck out by the Court suo motu or upon Application of a party to the action. Therefore as a basis for the Application of the rule there must be averments contained in a pleading which do not serve the purpose that the pleading is meant to achieve. Order 11, r 18 of C. I 47 states: (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds (a) It discloses no reasonable cause of action or defence; or (b) It is scandalous, frivolous or vexatious (c) It may prejudice, embarrass, or delay the fair trial of the action; or (d) It is otherwise an abuse of the process of the court, And may order the action to be stayed or dismissed or Judgment to be entered accordingly..” It is well established that it is only in plain and obvious cases that recourse should be had to the summary process under Order 11 Rule 18 of C. I. 47. Speaking about the Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 6 | P a g e exercise of the power under the rule in GBENARTEY & GLIE V NETAS PROPERTIES & INVESTMENTS & OTHERS [2015-2016] 1 SCGLR 605 Anin Yeboah JSC @ PAGE 619 said as follows: “It follows that the procedure of terminating proceedings by summary process should be applied only in cases where the action is clearly unsustainable, plain and obvious that it is beyond doubt that the case is unarguably frivolous and vexatious; and even legitimate amendments could not cure the defect.” The first issue of importance to consider is whether the pleadings contained in the Statements of Defence are an abuse of the process of the Court. Abuse of Process according to the OSBORN’S CONCISE LAW DICTIONARY (8TH ED) EDITED BY LESLIE RUTHERFORD AND SHEILA BONE is “ .. A frivolous or vexatious action as e.g. setting up a case which has already been decided by competent Court…”. In BARRONS DICTIONARY OF LEGAL TERMS (4TH ED) BY STEPHEN H. GIFIS “abuse of process” is defined as “improper use of legal process.” The Plaintiffs' Application to strike out the Defendants’ pleadings, has been brought under the inherent jurisdiction of the Court. The practice under the inherent jurisdiction of the Court is well established. In TIAH V JOHNSON AND OTHERS [1964] GLR 661 Djabanor J said: “The inherent jurisdiction is not confined to cases where the abuse is manifest from the pleadings, but may be exercised where the facts are proved by affidavit which show an abuse of the process of the Court”. Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 7 | P a g e It will aid a better appreciation of the ruling, if the relevant paragraphs of the Defendants’ Statements of Defence are reproduced. They are set out as follows: PARAGRAPHS 6, 7, 9 AND 12 OF 1ST DEFENDANT’S PLEADINGS “6. That 1st Defendant shall contend that 3rd Defendant residential address is fake and shall subject Plaintiff and 3rd Defendant to prove same. 7. The 1st Defendant shall further contend that 3rd Defendant was sued and the fake residential address was used purposely to create a forum for the hearing of the suit in the Greater Accra Region because 1st and 2nd Defendants reside in the Ashanti region of Ghana and the suit ought to have been filed in the Ashanti region of Ghana. 9. That 1st Defendant in further answer to paragraph 6 and 12 demand that Plaintiff should declare his source of wealth and how he acquired those businesses in Ghana. 12. The 1st Defendant denies paragraph 15,16,17,18,19,20,21 and 22 of the Statement of Claim and shall plead partial justification to paragraphs 15 to 22…” PARAGRAPHS 7, 8 AND 10 OF 2ND DEFENDANT’S PLEADINGS “7. In further denial of paragraph 5 of the Statement of Claim, the 2nd Defendant shall contend that H/No 11 Mango Street, Santa Maria Accra provided as the residential address of the 3rd Defendant is fake and that strict proof of same shall be demanded from the 3rd Defendant. 8. It shall further be contended by the 2nd Defendant that the said residential address of the 3rd Defendant was contrived for the sole purpose of having filed and tried in the Greater Accra Region instead of the Ashanti Region where the 1st and 2nd Defendants reside. Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 8 | P a g e 10. In further denial of paragraphs 6 to 12 of the statement of Claim, the 2nd Defendant shall demand from the plaintiff a vivid demonstration before this Honourable Court the sources of his wealth as loudly acclaimed in the instant suit for the purposes of determining its legitimacy and statutory tax compliance.” I have carefully studied the paragraphs 6 and 7 of the 1st Defendant’s pleadings and 7 and 8 of the 2nd Defendant’s pleadings. All the arguments being canvassed by the Defendants’ Counsel are rehashed for same were made before the Court and a ruling given on 10th of February 2022. To allow Paragraphs 6 and 7 of the 1st Defendant’s pleadings and 7 and 8 of the 2nd Defendant’s pleadings to stand would thus amount to an abuse of the Court process. Under its inherent jurisdiction, the Court would prevent a party seeking to raise anew substantially the same question already decided by a Court of competent jurisdiction in prior proceedings between him and another party. See the cases of AMOAKO V AMADOS AND OTHERS [1975] 1 GLR 401 AND NAOS HOLDING INC V GHANA COMMERCIAL BANK LTD [2011] 1 SCGLR 492. If the Defendants felt aggrieved about the ruling delivered on 10th of February 2022 their remedy was to appeal but there is no such appeal; and therefore the ruling concerning the transfer of the suit to the Ashanti Region stands until it is set aside. Paragraphs 6 and 7 of the 1st Defendant’s pleadings and 7 and 8 of the 2nd Defendant’s pleadings therefore will be struck out. The other criticism levelled against the Defendants’ pleadings is that paragraphs 9 and 12 of the 1st Defendant’s pleadings and paragraph 10 of the 2nd Defendants pleadings are scandalous frivolous or vexatious and may prejudice, embarrass or delay the fair trial of the action. Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 9 | P a g e The purpose of the Order 18, rule (1) (b) and (c) of C1 47 is to prevent claims which on the face of the pleadings are shown to be frivolous, vexatious or scandalous, or may prejudice embarrass or delay the fair trial of the action. It is clearly a matter in the judicial discretion of the Court and a pleading will only be struck out under the rule in a plain and obvious case. Explaining the words “scandalous, frivolous vexatious” Honyenuga J A in the case of FRANCIS KORANTENG V CROCODILE MATCHETS (GHANA) LIMITED [2013] 58 G. MJ 101. at page 120 had this to say: “A test for scandal is whether the averment in issue is relevant to the relief sought. In the case of an action being frivolous and vexatious are very obvious which demand no definitions or explanations” This is a defamation suit. According to the Plaintiff the defamatory comments were made on the “Wontumi Morning Show”. Paragraph 9 of the 1st Defendant’s pleadings and paragraph 10 of the 2nd Defendant’s pleadings demand that the Plaintiff should disclose the source of his wealth and how he acquired his businesses in Ghana. Not only do I find that these pleadings are irrelevant to the issues before the Court but also think they are scandalous, vexatious and frivolous and will prejudice, embarrass and delay the fair trial of the action. A Statement of Defence should answer the allegations made by the Plaintiff by admissions or denials. The Defendants must therefore plead averments that are relevant to their defence to the cause of action. It is my considered opinion that paragraph 9 of the 1st Defendant’s pleadings and paragraph 10 of the 2nd Defendant’s pleadings do not contain the Defendants’ answer to the Plaintiff’s Statement of Claim i.e the reason why the Plaintiff has no valid case. These pleadings would thus be struck out as offending Order 11 rule 18 (b) and (c) of CI 47. The defence filed by the 1st Defendant sets up the defence of partial Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 10 | P a g e Justification. The 1st Defendant has given particulars of what he relies on to assert what he claims in paragraph 12 of his statement of defence. Aside the defence of partial justification there is also a denial of the alleged publication by both Defendants in their Statements of defence. In my view the kind of defence being put up by the defendants calls for a trial. As held in the case of APPIAH II V BOAKYE [1992-93] GLR 417 whenever the pleadings raised some questions fit to be decided by evidence, the mere fact that a party’s case or defence might be weak would be no ground for striking it out. It is my considered opinion that this case is not one fit and proper to be decided summarily. I think the proper thing to do in this case is to allow the case to proceed to trial. Paragraph 12 of the 1st Defendant’s Statement of Defence will thus be allowed to stand. The application succeeds in part. Paragraphs 6, 7 and 9 of the 1st Defendant’s pleadings and 7, 8 and 10 of the 2nd Defendant’s pleadings are struck out. The Plaintiff’s application for the Court to enter Judgment is however dismissed. There will be no order as to costs. (SGD.) H/L OLIVIA OBENG OWUSU (MRS.) JUSTICE OF THE HIGH COURT PARTIES: PARTIES ABSENT COUNSEL: Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 11 | P a g e JOHN KWASHIGAH NENYO ESQ.; H/B FOR REINDORF TWUMASI ANKRAH FOR PLAINTIFF/APPLICANT PRESENT CHRISTABEL MILLS ESQ., H/B FOR MAURICE KWABENA AMPAW FOR DEFENDANT/RESPONDENT AND ISAAC RIVERSON 2ND 1ST DEFENDANT/ RESPONDENT PRESENT IVAN MENSAH DADZIE ESQ., FOR 3RD DEFENDANT/RESPONDENT PRESENT REFERENCES: CASES REFERRED TO: 1. 2. 3. 4. 5. 6. GBENARTEY & GLIE V NETAS PROPERTIES & INVESTMENTS & OTHERS [2015-2016] 1 SCGLR 605 TIAH V JOHNSON AND OTHERS [1964] GLR 661 AMOAKO V AMADOS AND OTHERS [1975] 1 GLR 401 FRANCIS KORANTENG V CROCODILE MATCHETS (GHANA) LIMITED [2013] 58 G. MJ 101 APPIAH II V BOAKYE [1992-93] GLR 417 NAOS HOLDING INC V GHANA COMMERCIAL BANK LTD [2011] 1 SCGLR 492. ENACTMENT: THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 47) BOOKS: 1. BARRONS DICTIONARY OF LEGAL TERMS (4TH ED) BY STEPHEN H. GIFIS 2. OSBORN’S CONCISE LAW DICTIONARY (8TH ED) EDITED BY LESLIE RUTHERFORD AND SHEILA BONE Ruling delivered by Her Ladyship Justice Olivia Obeng Owusu J. on 20/10/2023 at GJ4 12 | P a g e