DORKE AND ANOTHER VRS DOTSE (A1/04/2021) [2023] GHADC 1113 (19 December 2023)

1 IN THE DISTRICT COURT HELD AT AVE-DAKPA ON TUESDAY THE 19TH DAY OF DECEMBER, 2023 BEFORE HIS WORSHIP AKOSAH AGYARE-AMOANPONG YAW- THE MAGISTRATE SUIT NO. A1/04/2021 1. STEPHEN DORKE 2. SIMON DORKE BOTH OF METSRIKASA GLADYS DOTSE VRS JUDGMENT The Plaintiffs in this matter have instituted this action claiming against the Defendant the reliefs herein. (1) An award GH¢2,000 general damages against the Defendant for the defamatory words the Defendant published against the Plaintiffs, at paragraphs 15 of her witness statement, in suit No. A1/02/2021, titled “GLADYS DOTSEY VRS. ADZO DORKE”, filed on 20th April, 2021, at this very court, wherein the Defendant, as the Plaintiff in the said matter, stated: “This my vital witness Agbodzi Edi was threatened by the two brothers of the Defendant, Simon and Stephen Dorke, not to testify for me, else they will kill him”, which statement is untrue. (2) An order of the Court compelling the Defendant to retract those defamatory words, by causing a gong-gong to be beaten at the Matsrikasa township. (3) Costs: The Defendant filed no counterclaim against the Plaintiffs. The case of the Plaintiffs is a simple one, and it is that the Defendant, at paragraph 15 of her witness statement filed on 20th April, 2021, in a land matter between her as the Plaintiff in that case, and Adzo Dorke, as the Defendant in the said case, wrote those defamatory words as stated, partly at relief (1) of the Plaintiff herein. That the Plaintiffs became aware of the said defamatory statement when they were reading that witness statement to Adzo Dorke (the Defendant in that land matter). According to the Plaintiffs, the said defamatory words had caused a serious damage to their reputation, and had lowered their self-esteem before the right-thinking people of Matsrikasa. In her defence, as contained in her witness statement filed on 15th October, 2021, the Defendant denied having defamed the Plaintiffs and averred that the statement she had made, which is the main foundation of the Plaintiffs’ action, was only a report made to her by one Agbodzi Edi, who said the Plaintiffs actually threatened to kill him (Agbodzi Edi), should the latter dare come to this court to testify on behalf of this Defendant, in the land matter in which she is the Plaintiff. We are of the opinion that two issues lend themselves for determination as far as this matter is concerned. And those two issues are as stated herein. (i) Whether or not the Defendant can be said to have actually defamed the Plaintiffs. (ii) Whether or not the Plaintiffs are entitled to the reliefs they have sought. Commencing our discussion with the first issue, it has been said that defamation is a publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. Please see the English case of PARMITER V. COUPLANDS (1840) 151 E. R. 340 per Baron Parke. We submit that the parties in this matter being Ghanaians, the applicable law for the instant action is the customary law, as provided by section 54 of the Courts Act, 1993 (Act 459). In a defamation suit based on the English common law, a claimant is required to prove four essential elements. The first of those elements is that the statement made by the defendant is capable of a defamatory meaning. In SIM V. STRECH [1936] 2 ALL E. R. 1237, it was held that the words complained of were not reasonably capable of a defamatory meaning. A rhetorical question was posed by the court thus: “Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” The second element is whether the statement or publication was actually defamatory. To determine this, the words used must by given their fair and ordinary meaning, in the context in which they were used. In the case of CASSIDY V. DAILY MIRROR NEWSPAPER (1929) 2 K. B. 331, the Court of Appeal held that the publication was capable of conveying defamatory meaning relative to the plaintiff. The third element is that a plaintiff in a defamation action must prove or show something that connects him to the defamatory words. That is, the plaintiff or claimant must show that the defamatory words used are indeed referrable to him. In KNUPFFER V. LONDON EXPRESS NEWSPAPER [1944] A. C.116, the former House of Lords (which is now the Supreme Court of England & Northern Ireland) held that the plaintiff could not show that an article published by the defendant newspaper house was referable to him, but that the said article rather referred mainly to the activities of the group. The fourth element is that there must be a publication of the alleged defamatory statement. In PULLMAN V. HILL (1891) I. Q. B. 524, it was held that there had been a publication of a letter which had been dictated by the Managing Director of the defendants to a clerk, and which had been read by two clerks of the plaintiffs’ company. However, in HUTH V. HUTH [1915] 3. K. R. 32 where a letter from an estranged husband, to her wife, was said to have been read by the wife” inquisitive butler, the Court of Appeal held that there had been no publication. That even though the letter had been sent in an unsealed envelope, it was not part of the butler’s duty to open the letter. That the husband/defendant could not reasonably have anticipated that an inquisitive butler would open his wife’s letter. On the other hand, the essential elements of a slander action under the customary law of Ghana were stated in the reported case of AFRIYIE V. DANSOWAH [1976] 2 GLR 172 – 178, at holding (1) where the court stated thus: “Where persons were subject to customary law, the law applicable to a slander action was customary law and a party did not need to elect which law he was proceeding under. A trial judge had first to determine whether the words complained of were spoken and of the party. It then became necessary to determine whether they were defamatory, and lastly, whether they were false, for slander under customary law was actionable per se without proof of special damage provided it was false”. From the above-stated reasoning of the reported case of AFRIYIE V. DANSOWAH [1976] 2 GLR, page 172-178, at holding (1), it may be inferred that a major defence that may avail a defendant in a slander action under Ghana’s customary law is by pleading that the statement made is true, although in some circumstances truth might not even pass as a complete defence. On the other hand, in an action for defamation under the English common law, different types of defences may be available to a defendant. The defences that a defendant may resort to may take the form of either one, or more, of the following: consent, justification (or truth), fair comment, and privilege. (whether absolute privilege, or qualified privilege). Since the cause of action of the Plaintiffs here is said to have emanated from a statement or an averment made at paragraph 15 of the Defendant’s witness statement which she filed in this court on 20th April, 2021, in her position or capacity as the Plaintiff in a land suit between her and Adwo Dorke (the first witness for the Plaintiffs in the instant suit), the said statement comes under the purview of the defence of absolute privilege, specifically by way of a communication in judicial proceedings. Kofi Kumado, at page 249 of the second edition of his book INTRODUCTION TO THE LAW OF TORTS IN GHANA has stated that absolute privilege which is enjoyed in judicial proceedings in Ghana is catered for under Articles 114 (9), 132(3), and 127(3) of the Constitution, 1992. Explaining that point, the author wrote, at the same page 249 of the second edition of his book INTRODUCTION TO THE LAW OF TORTS IN GHANA as follows: “Any statement made from the Bar and the Bench are absolutely privilege and so are statements made before tribunals, committees and commissions of enquiring. It extends not only to judges but to counsel, jurors, witnesses and the parties…”. In the case of CHANTELLE T. S. KUDJAWU V. GLORIA ASSAN ARHIN, SUIT NO GJ/0535/2021, High Court, Accra (unreported), dated 31st May, 2021, the plaintiff prayed for order of the court for (general) damages in the sum of three million, five hundred Thousand Ghana cedis (GH¢3,500.00), aggravated damages, exemplary damages, compensatory damages, and other reliefs. The plaintiff’s action was hinged, as stated on her pleading, on the fact that in a divorce petition between the Defendant (then the Petitioner) and her husband (then the Respondent), the Defendant had made an averment at paragraph 14(a) of her then petition filed at the High Court on Wednesday, 10th February, 2021 in which she (the Defendant) had referred to the Plaintiff (Chantelle Kudjawu) as one of the women with whom the husband (then Respondent) had had, and have continued to have extra-marital affairs. The High Court held thus: “ In conclusion I state that it is the position of the law and the practice at the Courts that for statements i.e. the pleadings made in judicial proceedings such as the divorce petition involving the Defendant and her husband are absolutely privileged and no legal action can be commenced based on the said statement”. In the English case of SCOTT V. STANSFIELD (1868) L. R.3 EX. 220, the plaintiff who was a defendant in a case that was heard by the defendant (a judge), instituted an action against the defendant for defamation for having remarked that he Scott was a harpy praying on the vitals for the poor”. It was said that even if the allegation against the judge were true, it could not ground an action against that the judge (defendant), since he was acting in the course of his duty as a judge, Kelly C. B. wrote that “The provision of the law was for the benefit of the public in whose interest it was that the judges should be at liberty to exercise their function with independence and without fear of its consequences”, Again, in the case of SEAMAN V. NETHERCLIFT (1876) 2 C. P. D. 53 where the defendant (a handwriting expert) stated in an opinion that the signature of a certain will was “a rank forgery”, the plaintiff (an attesting witness to that will) instituted a defamation action against the defendant. The defamation suit was dismissed, because the defendant’s remark uttered in reference to the judicial proceeding was said to be privileged. Applying the reasoning in each of the above-cited three cases, namely the Ghanaian case of CHANTELLE T. S. KUDJAWU V. GLORIA ASSAN ARHIN, SUIT NO. GJ/0535/2021, High Court, Accra, dated 31st May, 2021(unreported), and the English cases of SCOTT V. STANFIELD (1868) L. R.3 EX. 220, and SEAMAN V. NETHERCLIFT (1876) 2. C. P. D. 53, to the peculiar facts of the instant case, this court would state, categorically, that since the cause of action of the Plaintiffs herein is founded on the said averment as contained at paragraph 15 of the Defendant’s witness statement filed on 20th April, 2021, in a land suit which involved the Defendant herein (as the Plaintiff of that matter), and Adzo Dorke, DW1 (as the Defendant in the said land matter), the said averment of the Defendant is absolutely privileged. Hence no cause of action can be grounded or can arise out of that statement. The following constitute our findings of fact. (1) The Plaintiffs’ action for defamation is based on an averment as found at paragraph 15 of the Defendant’s witness statement in a land matter between the Defendant and one Adzo Dorke, the first witness for these Plaintiffs. (2) The Defendant’s said averment formed part of judicial proceedings or document in that land matter before the court. (3) That averment is protected by law, and it thus constitutes an absolute privileged. Let us now proceed to discuss our second issue which is whether or not the Plaintiffs are entitled to their reliefs. It is not out of place for this court to repeat here that the Plaintiffs’ suit has just been ruled as being not actionable on account of the fact that it is based on an averment made by the Defendant in the course of judicial proceedings, thereby making that averment absolute privilege. In the case of PROGRESSIVE PEOPLES PARTY (PPP) V. THE ATTORNEY – GENERAL, WRIT NO. J1/8/2014, dated 28th July, 2015, S. C. (unreported), Akamba JSC stated that: “No matter the nature of the fancy dressing a party gives to his relief, it has to pass the scrutiny of this court as to whether it is an appropriate matter that invokes our jurisdiction”. We are of the strong view that the above-quoted reasoning from the case of PROGRESSING PEOPLES PARTY (PPP) V. THE ATTORNEY – GENERAL, WRIT NO. J1/8/2014, dated 28th July, 2015, S. C. (unreported), can aptly be applied to the facts of the instant case for this court to state that the Plaintiffs’ defamation suit against the Defendant has no leg to stand on, as it is not actionable. It is rather Privileged. For the above reasons, all the reliefs sought by the Plaintiffs are hereby dismissed. There would be no order as to costs, as the parties are related. (SGD) AKOSAH AGYARE - AMOANPONG YAW THE DISTRICT MAGISTRATE