Heitey Iii Vrs Ghartey Vii [2023] GHAHC 138 (18 January 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON MONDAY THE 18TH DAY OF JANUARY, 2023, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. SUIT NO. E4/001/2021 NANA HEITEY III … PLAINTIFF H/S NO GD 1/9, GYAHADZE SUING PER HIS LAWFUL ATTORNEY JOHN KWAME NINSON VRS NEENYI GHARTEY VII … DEFENDANT PARAMOUNT CHIEF, EFFUTU TRADITIONAL AREA, WINNEBA. _______________________________________________________ J U D G M E N T The Plaintiff on the 25th day of November, 2020 caused a Writ of Summons to be issued against the Defendant herein and claimed for the following reliefs: a. A declaration that the statements complained of supra and contained in Defendant’s letter dated 9th March, 2020 addressed to Plaintiff are defamatory of the Plaintiff. b. Payment of an amount of Twenty Million Ghana Cedis (GH¢ 20,000,00.00) as damages for defaming the Plaintiff. c. An order for perpetual injunction restraining the Defendant howsoever from further publishing and /or causing to be published the said defamatory statement against the Plaintiff. d. An order for a retraction of the defamatory statement complained of supra imputing criminality to Plaintiff and published by the Defendant against the Plaintiff. e. An order for a public apology by the Defendant and publication of same in two national daily newspapers. f. Costs THE CASE FOR THE PLAINTIFFS The Plaintiff is the Chief of Gyahadze and Gyaasehen of Effutu Traditional Area of the Central Region whilst the Defendant is the Paramount Chief of the Effutu Traditional Area of the Central Region. The Plaintiff is known in private life as John Sam and the Magistrate of the District Magistrate Court, Dzolo-Kpuita in the Ho West District of the Volta Region of the Republic of Ghana. It is the case of the Plaintiff that prior to his appointment as a Magistrate of the District Court; he was an educationist with several years of service in the sector. According to the Plaintiff, on 9th March, 2020 the Defendant wrote a letter addressed to him with the title “END THE WANTON DISSIPATION OF EFFUTU STOOL LANDS NOW”. The Plaintiff avers that in the said letter the Defendant wrote and consciously took steps to publish defamatory matter against him as follows: “Your general attitude was reflected in the forgery medical report that you sent to the judicial committee hearing a case against you but which gave you a leverage that you were not given a fair hearing. Hence, the ruling at the Regional House of Chiefs annulling the hard work of the panel of the Effutu Traditional Council. See, what you did which has vividly been told several times by those you planned with. Of course, this is not the signature of my good friend Dr. J. C. Otoo. I just want to let you see yourself in perspective before getting into the main subject”. The Plaintiff avers that the said letter authored by the Defendant was addressed to him and Defendant caused copies of same to be extensively published and sent to the Municipal Chief Executive of Winneba, the District Commander, Winneba and all rural Chiefs. The Plaintiff avers that the Defendant’s allegation that he forged a medical report and signature of one Dr. J. C. Otoo and sent same to the Judicial Committee of the Regional House of Chiefs is false, malicious and without any justification whatsoever and Defendant vehemently denies the said allegation. The Plaintiff further avers that by the ordinary meaning of the allegations in the said letter, the allegations are meant and understood to mean that the Plaintiff is criminally minded, a rogue, dishonest person and a common criminal. The Plaintiff says that the publication and the statements contained therein were calculated to cause hatred, disparage, ridicule and injure the Plaintiff’s hard earned reputation and that of his family in the minds of right thinking members of the society. The Plaintiff avers that due to the extensive publication of the said letter, he has suffered great distress, embarrassment and damage to his reputation as a Chief, Magistrate and his person. According to the Plaintiff on 30th March, he wrote a letter to the Defendant to retract and apologize within two (2) weeks for authoring and publication of the said letter extensively published, evidenced a clear intention on the part of the Defendant to unabatedly smear and scandalize the reputation of the Plaintiff without just cause. The Plaintiff avers that the recalcitrance of the Defendant in retracting and apologizing for the falsehood peddled against the Plaintiff, even when Defendant’s attention was drawn to the apparent defamatory matter contained in the said letter and extensively published, evince a clear intention on the part of the Defendant to unabatedly smear and scandalize the reputation of the Plaintiff without just cause. The Plaintiff says unless restrained by this Honourable Court, the Defendant will continue to write, publish and/or cause to be published the said or similar words defamatory of the Plaintiff. THE CASE FOR THE DEFENDANT In answer to paragraph 1 of the Statement of Claim, Defendant avers that there is currently a matter pending before the Judicial Committee of the Effutu Traditional Council in respect of the destoolment of the Plaintiff as Chief of Gyahadze within the Effutu Traditional Area. According to the Defendant, he has not published any defamatory statement against the Plaintiff which is calculated to cause hatred, disparage, ridicule and injure his hard earned reputation and that of his family in the minds of right thinking members of the society. In further answer in denial, the Defendant says that save that he authored the said letter addressed to the Plaintiff, same was never published and it cannot therefore be a basis for any defamatory action. The Defendant further says that the Plaintiff shall be subjected to a strict proof of the averments that he caused the said letter to be published. The Defendant contends that at no point in time did he by any stretch of imagination per the said unpublished letter meant that the Plaintiff is criminally minded, a rogue, dishonest and a common criminal as being alleged. According to the Defendants, the Plaintiff is his sub-chief and he was the one who elevated the Gyahadze stool to the position of Gyaasehen within the Effutu Traditional Council and would not do anything to dent the image of the occupant of the Gyahadze stool. Defendant says that, without admitting, if the content of the unpublished letter has in anyway dented the image of the Plaintiff, then he renders an unqualified apology for the unintended damage caused to him. According to the Defendant, the Plaintiff is not entitled to the reliefs being sought. ISSUES FOR TRIAL There are two key issues for the determination of this matter which are as follows: 1. Whether or not the words authored ad contained in the Defendant’s letter to the Plaintiff dated 9th March, 2020 is defamatory of the Plaintiff. 2. Whether or not there was publication of the defamatory materials THE BURDEN OF PROOF IN A CIVIL ACTION Sections 10, 11, 12, and 14 of the Evidence Act 1975, sets out the standard of proof in any civil discourse. Section 10 (1) and (2) of the EVIDENCE ACT, 19751 defines the burden of persuasion thus: (1) For the purposes of this Decree, 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 to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. (NRCD 323) SEE: BAKERS – WOODE v NANA FITZ. Also, Section 11(1)(4) of NRCD 323 deals with the burden of producing evidence and defines same thus: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. ______________ ²[2007 – 2008] 2 SCGLR 879 SEE : FOSUA & ADU – POKU v DUFIE ( DECEASED) & ADU POKU – MENSAH⁴. Again, Section 12(1)(2) NRCD 323 provides for the Proof by a Preponderance of the Probabilities thus, (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. SEE: SARKODIE v FKA COMPANY LTD, ZABRAMA V. SEGBEDZI2 and MAJOLAGBE V LARBI AND ORS3 In the instant case before this court, what must the Plaintiff prove in this case in order to succeed on his claims? The law of proof in Ghana is regulated by the Evidence Act 1975 NRCD 323 and the common law established by sound legal opinions of the Superior Courts in Ghana and in other jurisdictions. The general position is captured in the principle. He who asserts must prove. This position of the law has been affirmed by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI as follows: “…….a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and ³[2009] SCGLR 310 @ 325 – 327. ⁴[2009} SCGLR 65. 5[1991] 2 GLR 223 credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”. The Plaintiff has a duty to establish his case by leading evidence sufficient enough to meet the legal standard set by law in civil a discourse. In the case of MOJOLAGBE VRS. LARBI the Court in its bit to provide the accepted guideline in evaluating the worth of adduced evidence stated as follows: “Proof in law is the establishment of facts by proper legal means where a party makes an averment capable of proof in some positive way e.g. by producing documents description of things, reference to other facts, instances or circumstances; and where his averment is denied, he does not prove it by merely going into the witness box and ______________ 6[1959] GLR 190 – 195 ⁷[1959] GLR 190 @ 192. repeating the averment on oath and having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”. I shall proceed to examine the evidence adduced by the parties in relation to the issues set out in this case and the law, in order to determine whether or not the parties have discharged their respective burden of proof to the standard as prescribed by the Evidence Act and case law. From the pleadings of the parties in this suit, the onus of proof is on the Plaintiff as the Defendant did not in any way counter claim against the Plaintiff. The nature of the onus is explained in the case of BANK OF WEST AFRICA LTD. VRS. ACKUN⁸ where the Supreme Court stated that, the onus of proof in civil cases depends upon the pleadings and that a party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The above case has clearly buttressed the position of the law in ZABRAMA VRS. SEGBEDZI (SUPRA). SEE ALSO: OKONTI BORLEY & Another V HAUSBAUER LTD⁹. _________ ⁸(1963) 1 GLR 176. ⁹[2021] 17G. M. J.321 S. C I will first of all determine issue one and proceed to deal with issue two and make a determination to that effect. The Plaintiff’s Attorney John Kwame Ninson gave evidence and on behalf of the Plaintiff and was the sole witness so to do. The words complained of as being defamatory of the Plaintiff were thus: “Your general attitude was reflected in the forgery medical report that you sent to the judicial committee hearing a case against you but which gave you a leverage that you were not given a fair hearing. Hence, the ruling at the Regional House of Chiefs annulling the hard work of the panel of the Effutu Traditional Council. See, what you did which has vividly been told several times by those you planned with. Of course, this is not the signature of my good friend Dr. J. C. O too. I just want to let you see yourself in perspective before getting into the main subject”. See Exhibit B. According to the Plaintiff’s Attorney, the Defendant caused copies of the said alleged defamatory letter were extensively published or sent to the Municipal Chief Executive of Winneba, The District Police Commander and the Rural Chiefs. The Defendant however denied publishing the contents of the alleged defamatory letter but did not deny the fact the letter in issue was authored by him. The Plaintiff is the Chief of Gyahadze and a member of the Effutu Traditional Council whilst the Defendant is the Chief and Omanhene of the Effutu Traditional Council. Indeed the letter was to the effect that the Plaintiff should end the wanton dissipation of Effutu Stool lands which creates the impression that there was a land related dispute between the parties but the subject matter of this suit. The Defendant was alleged to have authored the alleged defamatory letter when the Regional House of Chiefs annulled a decision of the Effutu Traditional Council because of an alleged medical report the Plaintiff submitted which made the Regional House of Chiefs rule that the Plaintiff was not given a fair hearing. As stated earlier, the Defendant did admit that he authored the letter except to say that it was not published. However, to state that a Chief has forged a medical report for the Regional House of Chiefs to rule in favour of the Plaintiff who is a Chief with Elders and subjects is capable of defamatory meaning and actionable per se. Indeed, I find that the words complained of imputes criminality and lowers his reputation in the eyes of the right thinking members of the society including his subjects. See: ADEJUMO v. ABEGUNDE AND ANOTHER. ___________ ¹⁰[1965] GLR 499-511 SC. I will now proceed to decide on issue two and as to whether or not the words which had defamatory meaning, was also published and extensively as asserted by the Plaintiff. In the case AHEVI V AKOTO IV per ACQUAH J., the court at holding 1 held thus: “(1) a plaintiff in an action for defamation was not obliged to prove the exact words or the whole of the defamatory statement uttered by the defendant in order to succeed. It was enough to establish his claim if he proved that the defendant uttered some words bearing the defamatory meaning complained of. In the instant case, since the defendants published of the plaintiff that he was unfit to live in their society, words usually meant for those who had committed heinous crimes, and consequently prohibited any interaction between him and other citizens of the town, that publication was defamatory.” In order to succeed in a defamation action in a slanderous conduct, the words complained of must be duly published. In the instant case, the persons the Plaintiff said were copied the alleged defamatory letter were never produced to testify neither ___________ ¹¹{1993 – 94} 1 GLR 512 – 538 was there any evidence that the letters were delivered to them. Also no member of the society or community testified that those defamatory words indeed came to their attention or knowledge. It was argued for and on behalf of the Plaintiff that because the Defendant used the letter head of the Effutu Traditional Council then one or all of the elders knew about the content of the letter and its defamatory meaning directed at the Plaintiff. This argument is flawed because the fact that Defendant wrote the letter on the letter head of the Traditional Council does translate into every elder of the Council reading same. Also granted he wrote the letter on behalf of the Council, nothing stops him because he is the embodiment of the Traditional Council through whom the character, conduct and activities of the Council are expressed. This notwithstanding, there is no evidence to show that the content of the letter was published. In the case of SIDI v. ISSAH¹², the facts of the case which was subject of Appeal from the decision of the High Court, Tamale, was that the Plaintiff-Respondent was an employee of the Ministry of Roads and Highways. The Defendant- Appellant wrote a letter, exhibit A, to the Secretary for Roads and Highways complaining about the plaintiff's injudicious use of his discretion in the hiring out of road making machines and equipment belonging to the ____________ ¹²[1991] 1 GLR 599-607 ministry to private contractors. The Defendant also complained about the award of contracts to undeserving contractors by the Plaintiff. A copy of the letter addressed to the plaintiff allegedly passed through a series of office-holders who read it, including the plaintiff's own clerks the third and fourth Plaintiff witnesses. The Plaintiff, claiming that the letter was defamatory and had been published to others, therefore brought an action at the High Court, Tamale for ¢10 million damages for defamation. At the trial, the Defendant who had pleaded justification, boldly amplified his allegations with serious and damaging evidence. The Plaintiff admitted some of the allegations in his testimony. The trial judge however found that the words contained in exhibit A were defamatory and because other people apart from the plaintiff had read exhibit A, it had been published. He therefore awarded the Plaintiff ¢1 million damages for libel. Aggrieved by that decision the Defendant appealed, and the main issue which fell for determination was whether exhibit A had been published. However, the Court of Appeal, allowing the appeal held that: “ from the authorities it was clear that to succeed in proving publication the plaintiff must lead evidence to show that the defendant knew that all letters addressed to him (the plaintiff) would be intercepted, opened and read by those employees and officials who testified for him and that each had lawful authority to intercept, open and read all letters addressed to the plaintiff in their usual course of business. In the instant case, the evidence before the trial court did not show that the witnesses were empowered and had lawful authority to intercept, open and read all letters addressed to the plaintiff in their respective capacities in the usual course of business. Consequently, the trial judge misdirected himself both on the law and the facts on the issue of publication since his finding on it was plainly wrong. “ Similarly, and in the instant case, the fact that the letter was written on the letterhead of the Traditional Council does not mean that some or all of them read the contents of the defamatory words. Indeed the there is the need for cogent evidence to establish publication of the defamatory material and not merely by conjectures. OPPONG v. ADVANCE PRESS CO., LTD¹⁴. Also in the case of AMOAKO v. TAKORADI TIMBERS LIMITED¹⁵ and also quoted by Counsel for the Defendant, the Court at holding 2 held: “(2) In an action for damages for defamation it was not sufficient for the plaintiff to say that in his self-estimation the words alleged conveyed some obnoxious meaning to him. He must go further to prove that the obnoxious __________ ¹⁴[1980] GLR 842-848. ¹⁵[1982-83] GLR 69-73. meaning was conveyed to persons other than himself and the words had lowered him in the estimation of those persons; in other words no civil action for libel or slander could be maintained unless the plaintiff had established that the words complained of had been published to persons other than himself and those persons had understood the words in the defamatory sense attributed to them by the plaintiff. In the instant case, the PTO alone could not constitute the public or a section of the public. In the absence of evidence that the matter was published to other timbermen or members of the public or a section of it, it could not be said that the words exposed the plaintiff to public hatred, ridicule or contempt or in any way injured him in his trade.” From the foregoing I find and hold that the Plaintiff failed to establish on the balance of the probabilities that the defamatory words were published. In the case of ODAMETEY v. CLOCUH AND ANOTHER¹⁷ , the SUPREME COURT, per ADADE, TAYLOR, FRANCOIS, WUAKU AND AMUA-SAKYI JJ. S. C. in holding (1) Held: “(1) the present position was that if the plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim for ___________ ¹⁷[1989-90] 1 GLR 14-45. which he sought relief, then he could not rely on the weakness in the defendant's case to ask for relief. If, however, he made a case which would entitle him to relief if the defendant offered no evidence, then if the case offered by the defendant when he did give evidence disclosed any weakness which tended to support the plaintiff's claim, then in such a situation the plaintiff was entitled to rely on the weakness of the defendant's case to strengthen his case. That was amply supported by sections 11 and 12, particularly section 11 (4) of the Evidence Decree, 1975 (N. R. C. D. 323). SEE :BARIMA GYAMFI AND ANOTHER V AMA BADU4 In the instant case before this court and per the evidence on record, I have no doubt in my mind and without re – inventing the wheel that the Plaintiff failed to lead sufficient evidence on the balance of the preponderance of the probabilities to establish his case. I further hold that having failed to establish the words with defamatory meaning were published, the Plaintiff cannot erroneously conclude that the words exposed the Plaintiff to hatred, disparage, ridicule. Neither did the words injure his hard earned reputation and that of his family in the minds of the right thinking members of the society. CONCLUSION I have examined the totality of the evidence adduced before me by the Plaintiff and the Defendant, the respective legal submission filed by the parties, the authorities and the laws hold the candid view that the Plaintiff failed to establish the case of defamation against the Defendant on the balance of the preponderance of the probabilities. Accordingly, the matter is dismissed on its entity for want of merit. Cost of GH¢4,000.00 is awarded against the Plaintiff in favour of the Defendant. (SGD) H/L JUSTICE ABOAGYE TANDOH JUSTICE OF THE HIGH COURT HIGH COURT, WINNEBA COUNSEL RICHARD LAAPO ESQ, FOR THE PLAINTIFF/APPLICANT. DANIEL ARTHUR ESQ, FOR THE DEFENDANT/RESPONDENT. /MK/ 19