Division: IN THE HIGH COURT, KUMASI
Date: 14 MAY 1964
Before: SOWAH J
JUDGMENT OF SOWAH J
The main points argued in this appeal are points of law. Counsel however submitted that in the case of the third appellant there was no evidence upon which she could be found liable for uttering the slanderous words complained of.
I propose to deal firstly with the argument of law. Counsel has submitted that the law of slander as known to customary law does not give damages as its relief or remedy to the person slandered. The only remedy that an aggrieved person can obtain is to get the court to impose a small fine which may be given to him by way of compensation and further the court may order the slanderer to recant, that is to say:
“… make him walk through the town or village carrying a heavy stone in front of an officer of the Court, who, at convenient halting-places, beats a gong; the guilty slanderer is compelled to recant his base falsehoods, and to confess his disgraceful behaviour, amid the sneers and jeers of the multitude.”
See Sarbah, Fanti Customary Laws (2nd ed.), p.114.
Learned counsel cites the case of Kwaku v. Addo1 in support of his contention and submits that the remedy or relief of damages is unknown to the customary law of slander. Learned counsel relies on the words of Ollennu J. (as he then was) in Kwaku v. Addo,2 “These words give the impression that [the] native customary remedy for slander is more to penalize than merely to compensate.” Counsel therefore submits that the local magistrate was wrong in awarding damages and in any case the plaintiff was not entitled to damages as of right.
Learned counsel was however faced with the judgment of Apaloo J. (as he then was) in Wankyiwaa v. Wereduwaa.3 In this case Apaloo J. held that the customary law of slander is wider than the common law of slander and that an action even lies for vituperative words in certain circumstances. He also held that damages are the proper remedy or relief.
Counsel submitted that Apaloo J. never made those findings himself and that he relied mainly on the findings of the local magistrate that vituperative words gave a cause of action at law and if the action was successful damages could be awarded. Counsel has criticised the following statement by Apaloo J. which appeared in his judgment, “Judges who sat in this court and in the Supreme Court have said time and again that native custom is peculiarly within the bosom of the native courts.”4
I have read the judgment of Apaloo J. quoted above and I must say that I agree with counsel’s criticism in this respect, and in this respect only, namely, a decade ago the passage quoted above would have been true having regard to the constitution of the courts, the fact that persons who sat in those courts had some knowledge of or informal education in customary law and also because the courts were then constituted by chiefs, their linguists and the elders of the society in which the courts were situated. It is however common knowledge that the present day local magistrates are appointed from the populace at large without much regard to this fact; they may or may not be learned in our local customs. Indeed some have no knowledge whatsoever of customary law before their appointment. To say of such persons that the principles of customary law are embedded in their bosoms is to ask the ordinary man to stretch his imagination a bit far.
With this criticism apart, I consider that the judgment of Apaloo J. is founded on sounder grounds. It would be wrong to say that he did not expound the law of slander or that he did not support his contention with authority and principle. He cited Sarbah’s Fanti Customary Laws (2nd ed.), and the case of Mensah v. Quamina Attopi5 reported by Sarbah. Again he adopted the reasoning of Adumua-Bossman J. in the case of Quacoe v. Dadson,6 though obiter, and gave forceful reasons for so doing. In a reasoned judgment be showed that damages are the proper remedy for slander at customary law in a civil action. In fine, the foregoing criticism apart I will adopt the whole of the reasoning by Apaloo J. in the Wankyiwaa case.
But I would like to approach this appeal from a different angle that is to say from the organic
development of law or principles of law. There is little doubt that in Sarbah’s day the law had been established that an action for slander lay at the instance of the person slandered. Once a principle has been established it is for the court to interpret the principle, if necessary to adopt and extend it to meet the requirements of a modern society unless of course the principle is so well established as to need legislation to change it. It will appear pedantic, if not tedious, to go outside that great body of law known as the common law. It may be of interest to make the law of contract our starting point.
Up to the fifteenth century there was no direct remedy for the breach of an informal executory contract. A person whose contract was broken took an action in trespass upon the case, that is to say, an action originally lay against a person doing an act which was wrongful ab initio; it was later applied to misfeasance or improper conduct in doing what was not otherwise wrongful to do and finally it was applied to cases where a person has not done what he was bound to do, in other words, where a person has committed a breach of his contract. The conception originally was that a breach of contract was a quasi wrong. When, however, the stage was reached when a person was held liable for breach of his promise the courts began to circumscribe the limits of the principle by the introduction of the doctrine to exclude from its ambit gratuitous promises. Thus by gradual process of interpretation and extension of principle, the law of contract as we know it today was developed.
The law of tort of negligence as it is known in modern times also affords example of gradual development of principle. The law of tort of negligence started its life as an action of trespass to the person; in certain cases this cause of action still exists. There was, however, gradual development of this particular branch of law until it became a specific tort and was recognised as such in the great case of Donoghue v. Stevenson7 and in the case of Lochgelly Iron & Coal Co. v. McMullan.8 We may also turn to the development of the principle of strict liability and to the gradual process by which the rule in Rylands v. Fletcher9 was reached. Though the principle developed was in consequence of water escaping from a reservoir to flood the plaintiff’s mine, the courts have not hesitated to apply and extend the principle (as can be seen in the case of Charing Cross Electricity Supply v. Hydraulic Power Company10) to things other than water escaping from a reservoir. The law of damages has in the same way been modernised to meet the changing times not by legislation but by the judicial process; there is little doubt that the great cases of Hadley v. Baxendale11 in contract and Re Polemis and Furness Withy & Co.12 in the tort are landmarks in the development of this branch of law. In my view therefore once a principle has been established, it can be developed by the judicial process. A principle when first established is like a seed which has been planted. It must be constantly watered and as it grows, nurtured and carefully watched and finally pruned to shape. I consider that the principle was established in Mensa v. Quamina Attopi (supra) that an action for slander lies at the instance of the person slandered. This principle was also recognised by Sarbah. Slander at customary law is wider than the common law slander; it includes words of a vituperative character. Counsel however argued that the remedy for such
an action cannot be damages and quoted Ollennu J. in Kwaku v. Addo that “These words give the impression that native customary remedy for slander is more to penalize than merely to compensate.”13 In the Wankyiwaa case Apaloo J. has shown why an aggrieved person is entitled to damages and disagreed with Ollennu J. on the impression he formed as to the law.
I am of the view that the remedy that a person must recant is obsolete; indeed no one outside a mental hospital will suggest that our courts can enforce that remedy today but the courts on the principle of Mensah v. Quamina Attopi (supra) are entitled to make the slanderer pay adequate damages.
Damages in defamation are not only to compensate for injured feelings but also to vindicate the reputation of the person defamed. I consider the quantum of damages should have some relation to the seriousness or otherwise of the injury and to the extent of damage done. In my view there is no difference in principle between damages which should be awarded when an action for slander in customary law succeeds and damages for common law slander. I consider that as in all cases of the assessment of damages the question should be left to the discretion or good sense of the court after proof of damage suffered. In the circumstances I am of the opinion that the magistrate was right in awarding damages. I consider in principle the argument fallacious which limits the award to small damages only in customary law slander.
It appears however that the case was not proved against the third appellant. Neither the respondent nor her husband gave evidence as to the alleged slanderous words of the third appellant. It is true that the third witness of the respondent stated that the third appellant called the respondent a prostitute but that was not the allegation made against the third appellant: vide the writ of summons. I think if the local magistrate had considered the evidence in respect of each of the appellants he would have found the third appellant not liable. In the circumstances I will dismiss the appeal of the first and second appellants as there was abundant evidence on which the decision of the local magistrate was based. I will however allow the appeal of the third appellant. The respondent will have her costs against the first and
second appellants assessed at 25 guineas. The third appellant will have her costs against the respondent assessed at £G7 7s. The third appellant will also have her costs against the respondent in the circuit court assessed at £G5 5s. The costs of both the respondent and the third appellant in the local court to be taxed. Local court to carry out.
DECISION
Appeal allowed in part.
S. A. B.
