ABDUL MALIK KWAKU BAAKO VRS. KENNEDY OHENE AGYAPONG SUIT NO. GJ/51/2019 -

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, FINANCIAL & ECONOMIC CRIME DIVISION 2 HELD IN ACCRA ON FRIDAY THE 26^th JUNE, 2020 BEFORE HER LADYSHIP JUSTICE AFIA SERWAH ASARE-BOTWE(MRS.)

ABDUL MALIK KWAKU BAAKO –PLAINTIFF
VRS.
KENNEDY OHENE AGYAPONG –DEFENDANT

COUNSEL:

MR. DENNIS AGYEI DWOMOH FOR THE PLAINTIFF PRESENT WITH NANA AGYEMANG ABU-BONSRA
MR. RAPHAEL AGYAPONG FOR THE DEFENDANT PRESENT WITH MR. KINGSLEY AMOAKWA BOADU

JUDGMENT

This case commenced with the issuance of a Writ of Summons and Statement of Claim on the 16th of October, 2018 in which were endorsed the following reliefs;

a. A declaration that the statements made by the Defendant in both Twi and English Language which is fully transcribed in English indorsed on the writ of summons by way of an attachment and particularized on the attachment with the list media platforms and publication dates and also repeated in paragraphs 9, 10, 12, 14, 15, 16, 18, 19, 20 and 22 of the Statement of Claim are defamatory.

b. An order of the Court directed at the Defendant to publish on three consecutive occasions, on the same platform that he published the defamatory words, an unqualified retraction and an apology, with the same prominence as given to the issuance of the defamatory words against the plaintiff.

c. An order of the Court for perpetual injunction restraining the Defendant, his agents, assigns and servants from further publishing any defamatory words against the Plaintiff.

d. General Damages for the sum of Twenty-Five Million Ghana Cedis (GH$25,000,000) Ghana Cedis for defamation.

e. Exemplary Damages for malicious conduct of the Defendant in defaming the plaintiff.

f. Costs including legal fees and

g. Any other order(s) as this Honourable Court may deem fit.

THE CASE OF THE PLAINTIFF
The Plaintiff, per his pleadings and the evidence before the court, says that he is a Ghanaian by birth and nationality, a renowned Journalist and the Editor-in-Chief of the New Crusading Guide newspaper.

The Defendant, on the other hand, is the Member of Parliament for Assin Central Constituency in the Central Region of the Republic of Ghana.

The Plaintiff avers that he has been a practicing journalist with the highest repute since 1979 and by dint of hard work, perseverance and ingenuity, he was awarded the highest national award of Ghana, the Order of the Volta in the year 2008 by the President of the Republic of Ghana. As a journalist, Plaintiff says he rose through the ranks with such supersonic speed and became the Editor or several newspapers at a very tender age. Such newspapers included but are not limited to, the Frontline Message, Organ of the Movement on National Affairs and the Sport Concorde.

The Plaintiff avers that he further rose to the position of Editor-in-Chief for the several newspapers including The Guide (now the Daily Guide), The Crusading Guide and The New Crusading Guide.

On the political front, the Plaintiff makes the case that he was an activist of the Peoples’ Movement for Freedom and Justice (PMFJ) which led the anti-UNIGOV campaign; Founder and member of the Movement on National Affairs; a member of the erstwhile Alliance for Change; a member of the Convention People’s Party and an active political activist in Ghana’s current political dispensation.

According to the Plaintiff, for his numerous years of being in the public space fighting for the democracy of this country and for a proper constitutional rule, his integrity reputation diligence and good faith have never been in doubt.

The incidents that have given rise to this suit, the Plaintiff says, occurred on the 18th July, 2018, 24th July 2018, 25th July 2018 and 21st August, 2018 and on several occasions thereafter, when the Defendant caused to be published on Net2 TV, Adom FM, Oman FM and Asempa FM several statements against the Plaintiff which are defamatory.

The Plaintiff avers that on the 18th July 2018 on the Net2 TV station in a dialogue with the host, Abedi Anim, the Defendant said of the Plaintiff in both Twi and English Language which is fully transcribed in English as follows;

“Look, I have dared Kweku Baako. He is a very very corrupt guy. Where is his paper? Kweku Baako is very corrupt, Kweku Baako is very very corrupt in his paper”……

The plaintiff further avers that, still on the same programme, the Defendant uttered the following words against the plaintiff in both Twi and English Language which is fully transcribed in English as follows:

“Kweku Baako. Have you seen his interest? Have you seen it? He’s always making a lot of noise. Kweku Baako, you are more involved

in galamsey than anybody. I said, “Kweku Baako, you are more involved in galamsey than anybody in Ghana”……..

Additionally, the plaintiff says that even the call by the host of the programme on the Defendant to make a rational and fact-based analysis could not deter the defendant from making the disparaging comments.

The plaintiff avers that the defendant further made the following defamatory statements against the plaintiff in both Twi and English Language which is fully transcribed in English as follows:

“ You (referring to the plaintiff), Anas and your lawyer, Yeah. They

are real evil guys (referring to the plaintiff and Anas)…….. Kweku

Ba.ako would collapse NPP’s government should he allow it. Have you seen what he’s started with Charlotte Osei?……”

The plaintiff avers that the statements made were by way of innuendo the false and malicious utterances made by the Defendant meant and were naturally and ordinarily understood by right-thinking members of the society to mean that the plaintiff:

a. Lacks honesty and is possessed with the particularly bad moral of corruption which is not only an offence under our Laws but a canker that the State is putting in every effort to eliminate from our social fabric.

b. Is engaging in an illegal act which destroys the environment and will not halt his activities’ efforts to fight illegal mining in Ghana.

c. Is a morally reprehensible person with malicious intents against his beloved country.

The plaintiff avers that the defendant on a talk show “Adom Badwam” on Adom FM on 24th July 2018 with the host Omanhene Kwabena Asante, when one of the panelists suggested to the Defendant that the Plaintiff is very loyal to the President of the Republic, Nana Addo Danquah Akufo-Addo and a best friend to the President, the Defendant spoke of the plaintiff in both Twi and English Language which is fully transcribed in English as follows:

“You don’t know the guy very well. Best of friends because of what he can get …. You don’t know the guy very well…”

The plaintiff alleges that on the said show, not even the host of the show nor the panel could deter the Defendant from making statements to malign the plaintiff in that he further proceeded to make the following statements against the plaintiff in both Twi and English Language which is fully transcribed in English as follows:

“He’s hypocrite……Kweku Baako is not an honest man at all…….

Aw34

The plaintiff avers the defendant further made the following disparaging statements against him on the same show to all the general audience of the programme in both Twi and English Language which is fully transcribed in English as follows:

“I said he’s not a saint. Kweku Baako is not a saint. He’s evil……

Very evil man. He’s a very evil man……

It is the case of the plaintiff further to the matters referred to immediately above, that the false and malicious utterances made by the defendant meant and were naturally and ordinarily understood by rightthinking members of the society to mean that the plaintiff:

a. Is an opportunistic person who is only actuated by his selfish interest?

b. Puts up false appearances merely to deceive people.

c. Is an untruthful person and is full or lies, equivocation and prevarication.

It is further the case of the plaintiff that on a different programme on Oman FM styled “Boiling Point” with Kwabena Kwakye on 24th July, 2018, the Defendant made the following statements in the Twi and English Languages about the Plaintiff to reduce his image before right standing members of the public and this is fully transcribed in English as follows:

“I’ll move with him on the same level. I’ll move with him on the same level. They publish after taking their envelopes. It won’t happen again. I said whoever is given an appointment won’t go to them again. They won’t be afraid of them…”

The plaintiff says that on the same programme, the defendant published to the general audience of the programme the following words against the plaintiff in both Twi and English Language which is fully transcribed in English as follows:

“Kweku Baako is not a clean man that President would tolerate in the office anymore … I said, I have concluded that Kweku Baako is not clean”.

The plaintiff further avers that on the 25th day of July 2018 the plaintiff on Net2 TV station published to all viewers and listeners the following defamatory statements on the plaintiff in both Twi and English Language which is fully transcribed in English as follows:

“Kweku Baako, Kweku Baako should tell us he knows nothing. As soon as we won power, Michael Ofori-Atta, Chairman Wontumi claimed ownership of all these concessions. But because (President) Akufo-Addo has won power, he won’t continue operations. Then Kweku Ba.ako furiously called Michael that Wontumi wants to ta.ke possession of his (concession), in that the compa.ny belongs to him and C & G Aleska. With all seriousness, so Michael called one of Wontumi’s men to come and trash out the issue with Kweku Ba.ako in Accra as he (Michael) doesn’t want any problem. They should leave it (referring to the concession) to them (referring to Kweku Baako and co.) if Kweku Baako claims it is his people. Then, he told him (referring to Michael) that he won’t come. He would never meet Kweku Ba.ako. Wontumi said he is not interested in all that is happening. He ca.n bring a chairman who was present and they are all aware of these things. Now that I am leaking the information, he’s claiming no knowledge of it (referring to the information.)”.

The Plaintiff says that the false and malicious utterances made by the defendant referred to immediately above meant and were naturally and ordinarily understood by right-thinking members of the society to mean that the plaintiff:

a. Has the habit of accepting bribes which is an offence under our laws, an act to compromise the integrity of a person and a highly morally reprehensible behavior.

b. Is a person who cannot be trusted.

c. Is highly materialistic.

The Plaintiff complains of what he the defendant, still with a deliberate attempt to destroy the hard-earned reputation of the Plaintiff, stated on the Ekosii Sen programme on Asempa FM on the 21st day of August 2018, where uttered the following words against the plaintiff to all the listeners of the programme in both Twi and English Language which is fully transcribed in English as follows:

“…. I am talking about it. I do my investigation. If you like, he gave me his contact number; Wassa Amenfi East, call the chairman. He caused the arrest of workers of C & G Aleska. Kweku Baako called to threaten him why they were arrested. He said I should mention his name anywhere and he will come and testify and set him up with the gangs who brought him GH$1,000. He sent the money to the police station because he doesn’t take money…

This is my experience with Kweku Baako. Look, do you

understand it? He said he told him in pain language, when he caused the arrest of the workers of the C & G Aleska, Kweku Baako told the chairman that why should he cause the arrest of some engaged in galamsey while he (referring the Wassa Amenfi East Chairman) was into it himself? He told him, he wasn’t into galamsey”.

It is the Plaintiff’s case, in relation to the matter raised immediately above that the utterances made by the Defendant meant and were naturally and ordinarily understood by right-thinking members of the society to mean that the Plaintiff is engaged in and supportive of illegal mining and as such cannot perform his civic duties of ensuring that those perpetrating in the illegal mining are brought before the law since he himself is a guilty party.

The words, Plaintiff avers, were defamatory words and were authored with malice and with the sole intent of reducing him in the estimation of all right-thinking members of society as a corrupt, greedy, morally reprehensible and dishonest statesman.

The plaintiff says that the aforesaid defamatory statements were disseminated to a substantial number of persons through radio, television, internet streaming, several social media platforms, newspaper and online publications.

For the above reasons, the plaintiff relies on the facts and matters as set out in extensor above in support of the claim for damages, including aggravated damages, for malicious defamation that:

a. The defamatory words uttered by the Defendant were uttered, broadcast or published by Defendant recklessly and not caring to verify the truth or accuracy thereof.

b. The defamatory words uttered, broadcast or publicized without caution in a malicious manner with intent to cause damage and injury to Plaintiff’s hard-earned reputation, to expose him to ridicule and to reduce his image in the estimation of right-thinking members of the society.

c. The Defendant knew that once the aforesaid defamatory statements were made, they would be reproduced on websites of media house and blog sites and accessible to countless numbers of persons around the world.

d. The Plaintiff says that as a result of the acts of the Defendant, his reputation has been seriously damaged, his hitherto eulogized personality in the media and politics has been denigrated, and he has suffered considerable distress and embarrassment.

e. The plaintiff avers that the acts of the defendant have drastically reduced his envied reputation into dishonor, contempt, and reproach on the basis of the above-mentioned unfounded and destructive comments of the plaintiff.

The above founds the claims brought by the Plaintiff for defamation, the particulars of which are endorsed in the writ of summons and couched as follows;

I. 18th July 2018-Net 2 TV
“Look, I have dared Kweku Baako. He is a very very corrupt guy. Where is his paper….Kweku Baako is very corrupt, Kweku Baako is very very corrupt in his paper”

Kweku Baako. Have you seen his interest? Have you seen it? He’s always making a lot of noise. Kweku Bamako, you are more involved in galamsey than anybody in Ghana….”.

“You (referring to the plaintiff), Anas and your lawyer, Yeah They are real evil guys (referring to the plaintiff and Anas)…….. Kweku Bamako would collapse NPP’s government should he allow it. Have you seen what he’s started with Charlotte Osei?…”

II. 24th July, 2018- Adom TV
“You don’t know the guy very well. They are best of friends because of what he can get…… You don’t know the guy very well. ”

“He is a hypocrite……. Kweku Baako is not an honest man at

all……*

“I said he’s not a saint. Kweku Baako is not a saint. He’s evil……

Very evil man. He’s a very evil man……*

III. 24th July 2018-OMAN FM
I’ll move with him on the same level. I’ll move with him on the same level.

They publish after taking their envelopes.

It won’t happen again. I said henceforth, whoever will be given an appointment won’t go to them again. We are not afraid of them.

“Kweku Baako is not a clean man that President would tolerate in the office anymore … I said, I have concluded that Kweku Baako is not

clean”.

IV. 25th July 2018- Net 2 TV
“Kweku Baako, Kweku Baako should tell us he knows nothing. As soon as we won power, Michael Ofori-Atta, Chairman Wontumi claimed ownership of all these concessions. But because (President) Akufo-Addo has won power, he won’t continue operations. Then Kweku Baako furiously called Michael that Wontumi wants to take possession of his (concession), in that the company belongs to him and C & G Aleska. With all seriousness, so Michael called one of Wontumi’s men to come and trash out the issue with Kweku Ba.ako in Accra as he (Michael) doesn’t wa.nt any problem. They should leave it (referring to the concession) to them (referring to Kweku Ba.ako and co.) if Kweku Ba.ako claims it is his people. Then, he told him (referring to Michael) that he won’t come. He would never meet Kweku Ba.ako. Wontumi said he is not interested in all that is happening. He ca.n bring a chairman who was present and they are all aware of these things. Now that I am leaking the information, he’s claiming no knowledge of it (referring to the information.)”.

V. 21st August, 2018- Asempa FM

I am talking about it. I do my investigation. If you like, he gave me his contact number; Wassa Amenfi East, call the chairman. He caused the arrest of workers of C & G Aleska. Kweku Bamako called to threaten him why they were arrested. He said I should mention his name anywhere and he will come and testify and set him up with the gangs who brought him GH01,OOO. He sent the money to the police station because he doesn’t

take money……This is my experience with Kweku Ba.ako. Look, do

you understand it? He said he told him in pain language, when he caused the arrest of the workers of the C & G Aleska, Kweku Baako told the chairman that why should he cause the arrest of some engaged in gala.msey while he (referring the Wassa Amenfi East

Chairman) was into it himself? He told him, he wasn’t into galamsey”.

THE CASE OF THE DEFENDANT
The Defendant has duly entered appearance and filed a defence on the 29th of November, 2018.

In essence, the Defendant denies that the Plaintiff is entitled to any of the reliefs claimed, pleading essentially that all the statements attributed to him were justifiably made. Defendant says that he had over the years, held the Plaintiff in high repute until recently (i.e. seven months prior to filing the defence) when the defendant had been inclined to admit the Janus-faced character of the Plaintiff due to incontrovertible evidence in the Defendant’s possession bordering on the Plaintiff’s character and conduct.

The Defendant says in respect of the words he uttered on Net 2 TV about the plaintiff that they are indeed true, factual and that the comments were justified and that the defendant is (or was) more than willing to corroborate same with evidence at the trial.

The matters relating to C&G Aleska spoken in the Twi language, he says that the Plaintiff properly ought to have reproduced the words spoken and transcribed same to English for the Defendant to indeed appreciate the case to be answered. He therefore challenges the Plaintiff on the accuracy of the translation.

Further, the defendant says that being a well-known anti-corruption campaigner and a Member of Parliament who has a lot of following due to his “rational and fact based analysis” (sic) and that he has no interest in making comments that will seek to denigrate and defame the Plaintiff if the Plaintiff is not involved in unlawful acts he commented on.

Moreover, the Defendant says, the issue about Galamsey or illegal mining has become a national canker and the he (the Defendant) being a known anti-corruption campaigner cannot sit quietly or aloof for the Plaintiff and his cohort acting in the name of “fighting corruption” in society to work in concert with C&G Aleska Company Limited for their personal gains to the detriment of the entire Ghanaian populace with respect to the environment and its effects.

It is the contention of the Defendant that the issue is of public interest and that he did a thorough investigation when he was confronted with evidence of the Plaintiff’s involvement to confirm the authenticity of the information before making the information of the Plaintiff’s involvement public. He undertook to corroborate the information in the course of the trial with information in his possession including a police report.

The Defendant denies appearing on any programme on Adom FM called “Adom Badwam” and would put the Plaintiff to strict proof of the said allegation as well as the translation of the Twi language used. The Defendant says that he has rather been appearing on Adom TV on a programme hosted by Omanhene Kwabena Asante and that he indeed uttered words about the Plaintiff which are true.

The Defendant also admits that he appeared on a programme known as “Boling Point’ on Oman FM and made statements about the Plaintiff which are factually true, except that he would put the Plaintiff to strict proof as to the accuracy of the translation of the words which were spoken in Twi. He reiterates further that the words uttered on that programme about the Plaintiff are true, justified and fair since they are factual.

The Defendant contends that he uttered the words about the Plaintiff and his involvement in illegal and unlawful mining activities with the cooperation and assistance from C&G Aleska and indeed mentioned the name of Michael Ofori-Atta and Chairman Wontumi. However, the Plaintiff says that the words spoken in the Twi Language and transcribed in English to suit Plaintiff’s mischievous motive and same was to be put to strict proof and scrutiny about its accuracy. The Defendant however affirms his position that the words spoken in Twi are true and factually justified and same cannot so injure the Plaintiff’s reputation as to amount to defamation. Indeed, it is the case of the Defendant that the Plaintiff is involved and in support of the illegal mining activities conducted by C&G Aleska Company Ltd. and as such the words he uttered are true, factual and justified.

In furtherance of the statement immediately above, the Defendant says that the Plaintiff’s conduct, which borders on the issue of illegal mining, is of a major public concern and also a public interest matter which has led to the formation of an Inter-Ministerial Committee on the Regulation and Stoppage of Galamsey or Illegal Mining.

In the circumstances, the Defendant says, having provided what are truthful facts after due diligence and thorough investigations, the results of which revealed that the Plaintiff was acting in concert with C&G Aleska Company Ltd in the pursuance of their galamsey business against the national interest for Plaintiff’s monetary gains, he cannot be said to have defamed the Plaintiff. The Defendant in this regard undertook to lead incontrovertible evidence in court to support the facts he gave about the Plaintiff’s conduct. He also stated that he would challenge the accuracy of the transcribed Twi words to English by the Plaintiff without publishing the Twi words spoken and concludes that he uttered the words in Twi which are in and of themselves true and factual and that the Plaintiff is not entitled to any of the reliefs he seeks.

The Defendant pleads the defence of justification of facts and fairness and particularises same as follows;

i. That C&G Aleska Company acting under the orders and instructions of the Plaintiff engaged in illegal mining which led to NPP Chairman at Wassa Amenfi East Constituency reporting same to the Police.

ii. That the Police interference resulted in a serious verbal exchange between the Plaintiff and the NPP Chairman because the Plaintiff wanted the Chairman to kowtow to his instructions and allow C&G Aleska Company to go back to site and continue the illegal activities.

iii. That the Defendant shall lead evidence including audio conversation and text messages to corroborate the words he uttered.

THE LAW AND THIS CASE PRELIMINARY POINT OF LAW
Before dealing with the law and the evidence required in this case, a preliminary procedural point ought first to be determined.

It has been argued by the Defendant that the Plaintiff’s case ought to fail for non-compliance with Order 57 Rule 3 of the High Court Civil Procedure Rules, 2004 (C.I. 47), by the Plaintiff, and that Plaintiff’s writ of summons and accompanying statement of claim does not comply with the rules. It is submitted by Mr. Agyepong for the Defendant that in contravention of Order 57 Rule 3(1) and (2) of the High Court Civil Procedure Rules, C.I. 47, the Plaintiff was required to endorse on his writ of summons and statement of claim, the actual Twi words spoken by Defendant.

What then was required by the Plaintiff in this case?

The procedural question to be determined is whether or not the Plaintiff’s suit is incompetent for failing to set out the “words” he claims are defamatory and placing meanings to them as required by Order 57 Rule 3 (1) of C.I. 47. I shall first consider the procedure issue commencing with what the Plaintiff is required by the rules of court to do and thereafter proceed to deal with the substantive questions if necessary.

Order 57 Rule 3 (1) and (2) of the High Court Civil Procedure Rules, C.I. 47titled Obligations to give particulars provide as follows:

“3. (1) Where in an action for libel or slander the Plaintiff alleges that the words or matters complained of have been used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of the sense alleged.

(2) Before a writ is issued in an action for libel it shall be indorsed with a statement giving sufficient pa.rticula.rs of the publication in respect

of which the action is brought to enable them to be identified.

(Emphases mine)

It is my respectful view that the above procedural rules are unambiguous and requires no interpolation by way of interpretation. The requirement is simply for a Plaintiff in an action for defamation to state the words complained of and give particulars of the facts he relies on in support of the allegation. The particulars of the libelous or slanderous publication complained must be provided by the Plaintiff in the indorsement on the writ of summons as required by Order 57 Rule 2 and in Rule 3(1) state the words and give particulars of same.

Please see the case of OWUSU-DOMENA v AMOAH [2015-20161 1 SCGLR 790, in which the Plaintiff did not comply with the Order 57 provision of C.I. 47 as he did not provide the Court with any word or

statement used by the Defendants in a defamatory sense in either the indorsement of the writ of summons or in the statement of claim.

It was held at Holding 2 of the Headnotes inter alia that the Plaintiff was required to give particulars of the libelous publication complained of in the indorsement of the writ as required by Order 57 rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). And if he desired to do so in the statement of claim, he must seek to amend the indorsement on the writ. The Plaintiff did not comply with the provision in C.I. 47; and yet, the defendant had not raised any objection in the proceedings. However, Order 81, r 1(1) of C.I.47 had taken care of such non-compliance especially where the Defendant had not complained and participated fully in the proceedings. Therefore the particulars of the publication, which were detailed in the statement of claim, would be deemed to have cured the defect in the indorsement.

In my view, the objection raised would be overruled for the following reasons;

a) In the first place, it is quite clear that there are sufficient particulars indorsed in the writ of summons to satisfy the requirements of the Rules.

I have reproduced the indorsement to the writ verbatim in the preceding pages of this Judgment. The Plaintiff has stated what was said on each occasion and cited the date and place that each of the statements complained of were made. The question is whether the indorsements as they stand would suffice.

In the case of BRUCE v. ODHAMS PRESS LIMITED [1936] 1 K.B 697,
it was held that the particulars of claim were supposed inform the opposing party of the case it has to meet so that it may prepare for trial and avoid the expense in preparing a case that may never be put.

Scott LJ said: ‘The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word ‘material’ means necessary for the purpose of formulating a complete cause of action; and if any one

‘material’ fact is omitted, the statement of claim is bad;

(Emphasis mine)

In my respectful opinion, there is sufficient information for the Defendant to formulate his defence, and defend he did. He pleads justification, insisting that the statements made were factual, true, in the public interest and would be proven. Further, in commendable accordance with the Order 57 rule 3, he particularizes his justification in paragraph 32 of his Statement of Claim.

See also:

• STANDARD ENGINEERING CO. LTD. v. NEW TIMES CORPORATION [1976] 2 GLR 209 @ 412
• QUANSAH v. OFOSU [1991] 1 GLR 151 @ 154
b) A further and/or alternative reason for overruling the procedural objection given in (a) above has to do with the fact that the Defendant has taken no step in the course of the proceedings to raise it, and has fully participated in the trial. The matters complained of were admitted in evidence in electronic format, transcribed in the exact manner in which they were spoken (in mixed Twi and English) and then translated into the English language. These are in evidence as Exhibits “C” series, “D” series, “E” series, “F” series and “G” series.

As stated in the OWUSU-DOMENA v AMOAH case (cited supra) the

defendant in this case has also not raised any objection in the proceedings. However, Order 81, r 1(1) of C.I.47 had taken care of such non-compliance especially where the Defendant had not complained and participated fully in the proceedings. Therefore the particulars of the publication as given and the evidence, as well as the particulars of justification given, which were detailed in the statement of claim, would be deemed to have cured the defect in the indorsement.

The procedural matter dealt with, I shall now deal with the substantive law and the evidence.

BURDEN OF PROOF
Before proceeding to deal with the evidence before the Court and whether it is sufficient to found the claims being put before the Court, let me make a few remarks regarding the burden of proof expected of both parties in this case.

THE PLAINTIFF’S EVIDENTIAL BURDEN:
By law, the Plaintiff had a burden to prove his case to the standard required in civil actions; that is, on a balance of probabilities as far as the basic elements of the Tort of Defamation are concerned. .

Section 11 of the Evidence Act, 1975 (NRCD 323) states in part;

Section 11—Burden of Producing Evidence Defined.

(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 circu.msta.nces 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.

Regarding the burden of proof, the dictum of the Supreme Court in the case of KLAH v. PHOENIX INSURANCE CO. LTD T20121 SCGLR 1139,

is relevant. In that case, it was held that;

“Where a party makes as averment at capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.

(See also OKUDZETO ABLAKWA (NO.2) v. ATTORNEY-GENERAL &ANOR [20121 2 SCGLR 845 @ 847 regarding what is expected of a person who goes to court and makes an allegation).

(See also: ACKAH v. PERGAH TRANSPORT LIMITED &ORS (2010) SCGLR 736)

In explaining the principles relating to the duty to produce evidence, the learned S.A Brobbey states at page 31 of his book ESSENTIALS OF THE GHANA LAW OF EVIDENCE thus;

“This literally means “The proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof.”

Where the Plaintiff makes a positive assertion at the start of the trial, he bea.rs the legal burden. At the sa.me time, he bea.rs the evidential burden to adduce evidence at the sta.rt of the trial.”

On a balance, then, can the Plaintiff, who has a burden to succeed on the strength of his own case, achieve this goal?

“On the balance, if the existence establishes more than fifty per cent chance of existence of the fact, the standard of proof can be said to have been achieved. The Bench Book for US District Court Judges…. Restates this principle graphically thus:

“The plaintiff has the burden of proving his [her] case by what is called prepondera.nce of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims is more likely true to be true than not. To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite

sides of the scales, the plaintiff would have to make the scales tip somewhat on his [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant

(III) It is obvious that if the evidence adduced is such that the scales are evenly balanced, the burden of proof on the plaintiff would not have been satisfied. In that event, the case of the plaintiff should fail.”

(See S.A Brobbey Essentials of the Ghana Law of Evidence (Datro Publications), 2014 @ page 41)
By the same measure, the Plaintiff is required to prove his claims against the Defendant on a balance of probabilities.

In an action for defamation, the claimant must prove three elements;

1. That the words were defamatory;

2. That the words referred to the claimant; and

3. That the words were published (to at least one person other than the claimant) by the Defendant.

A defamatory statement is defined as one which tends to lower the claimant in the estimation of right-thinking members of society generally. This may be done by exposing the claimant to hatred, ridicule or contempt or causing people to shun or avoid him or to discredit him in his office, trade or profession.

It has been held that a defamatory statement may be implied or veiled (that is innuendo). These are word which may from which one can draw an impression by what the maker means.

(See OFFEI STEPHEN; THE LAW OF TORTS IN GHANA TEXT, CASES & MATERIALS, 2014).
What elements the Plaintiff has to prove were well set out by the Supreme Court in the case of OWUSU-DOMENA v. AMOAH [2015-2016] 1 SCGLR 790 at page 802. The Court, speaking through Benin JSC (as he then was) stated that a Plaintiff in an action for defamation must plead and lead evidence on the following matters in order to succeed:

(i) That there was a publication by the defendant;

(ii) That the publication concerned the Plaintiff;

(iii) That the publication was capable of a defamatory meaning in its natural and ordinary sense;

(iv) Alternatively or in addition to (iii) above, that the facts and/or circumstances surrounding the publication, it was defamatory of him, the Plaintiff; and

(v) If the Defendant seeks the defence of qualified privilege or fair comment, that the Defendant was actuated by malice.

The Supreme Court further stated that “there are two steps involved in establishing that the publication was defamatory: first, whether the publication was capable of a defamatory meaning. If a defamatory meaning is found to exist, the Plaintiff will have established his claim”. The apex Court after relying on the writings of Winfield and Jolowicz on Tort (18th ed) at page 584, paragraphs 12-15 and the old English case of Jones v Skelton [1963] 1 WLR 1362 and the statement of Lord Morris further stated that “the defamation complained of may be established from the prevailing facts and/or circumstances. Proof of either of these would suffice for the Plaintiff”.

What is capable of defamatory meaning and other matters pertaining to the details of the Plaintiff’s case and what is required will be discussed in the succeeding paragraphs when dealing with the particular circumstances of this case.

THE DEFENDANT’S BURDEN:
After the Plaintiff has established the preliminary elements set out above, the law is that a Defendant who pleads justification would have the burden to prove that the statements made were justified, true and/or factual.

ON DEFAMATION AND THE DEFENCE OF JUSTIFICATION:
The defence of Justification means that the defendant says that the publication is true. It is an absolute defence at common law. What is required in such circumstances is that the defendant must establish the truth of all material elements, that is to say, the pith and substance of the statement; in other words, that the statement is substantially true.

Thus Littledale J. in the case of M’PHERSON v. DANIELS 109 ER 448

AT 451, stated, “the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess”.

See also WAKLEY v. COOKE (1849) 154 E.R. 1316 in which the defendant called the plaintiff a ‘Libelous Journalist.’ He proved that the plaintiff had been found liable for Libel once. The court took the view that these words did not mean that the plaintiff was held liable on one occasion but mean that the Journalist habitually libeled people.

The defence of truth accordingly failed.

The defendant must justify the statement by showing that it was substantially accurate.

The truth of a defamatory statement, if established, is a complete defence no matter how careless, ignorant, or vindictive the defendant.

‘Justification’ (or truth) is a defence of the first importance. The actions in defamation are designed to penalize falsehood, and truth accusations are treated as lowering reputation only to its rightful level. If the truth of the defamatory meaning can be established, then the motive of the defendant in publishing the statement is entirely irrelevant.

‘Justification’ ought not to be confused with ‘Fair Comment’. The latter has to do with comments or criticisms on matters of public interest, such comments being made honestly and without malice.

Please see:

• KOFI KUMADO: INTRODUCTION TO THE LAW OF TORTS IN GHANA (2009) @ Page 259;
• JENNY STEELE: TORT LAW: TEXT, CASES AND MATERIALS (2006) @ Page 768.
In this case, the defence is and has always been that the matters about which the words were uttered were factual and true and would be proven in the course of the proceedings. That is a defence of justification. To fortify the defence further, the particulars of the defence of justification of facts and fairness are particularized.

However, the Defendant does use the words “Public Interest” and “Fairness” in the Defence which might connote the Defence of Fair Comment. For that reason, that defence will, in the interest of justice, be considered as well.

ON DEFAMATION AND THE DEFENCE OF FAIR COMMENT
A brief word on the requirements of the law where the Defence of Fair Comment is raised.

In general, the law is that a Defendant who relies on the Defence of Fair Comment must plead the particulars of the defence in must the same way as the Defence of Justification needs to be particularized.

See: STANDARD ENGINEERING CO. LTD. v. NEW TIMES
CORPORATION [1976] 2 GLR 409.
In this case, the reason for considering the Defence of Fair Comment in addition to justification, despite not being exactly particularized as is normally done, due to the use of the word “Fairness” has been given in the preceding paragraphs.

In the case of BENNEH v. NEW TIMES CORPORATION AND ANOTHER [1982-831 GLR 302 @308 the ingredients of the defence of fair comment were given as follows;

For a successful plea of fair comment the words complained of must be shown to be:

(i) Comment.

(ii) . Fair in the sense of honest comment.

(iii) . Fair comment on a matter of public interest.

A comment, however, is a statement of opinion on facts. The defence does not extend to cover misstatements of fact however bona fide.

On what constitutes matters of public interest, please see the dictum of Gbadegbe JSC in DAILY DISPATCH AND OTHERS v. BONSU AND OTHERS [20101 SCGLR 452, on what constitutes “public interest” for purposes if a plea of fair comment, where he stated that it was in all cases to be decided by the trial judge. The court held that having regard to the position the Plaintiff occupies (being Mamponghene) being of concern to Asanteman, as well as other positions that he held, he was a huge public figure and as such, matters concerning him were of public interest.

See also the decision of Lord Denning in the case of LONDON ARTISTS v. LITTLER [1969 1 2 QB 375 @ 379, (available on www.bailii.org)

where the learned Master of the Rolls stated regarding what could be considered a matter of public interest;

“Was the comment made on a matter of public interest? The Judge ruled that it was not. I cannot agree with him. There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the Judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.

Yet another aspect that must not be lost on us is one raised in the matter briefly mentioned in the case of OWUSU-DOMENA v. AMOAH [2015-2016! 1 SCGLR 790 that if the Defendant seeks the defence of qualified privilege or fair comment, that the Defendant was actuated by malice.

It is the duty of this court to settle on whether in the parties in this case have established their respective evidential burdens.

ISSUES FOR DETERMINATION:
After close of pleadings, the Plaintiff at the Application for Directions on the 11th of February, 2019, brought certain issues to the fore. The

Defendant, per his counsel also filed additional issues. However, the court determined that the issues which were properly joined between the parties and noted as follows;

“Since the pleadings and issues all boil down to the following in sum, the

issues to be determined shall be;

(a) Whether the publications made by the Defendant on 18th July, 2018 and 25th July, 2018 about the Plaintiff on Net 2 TV is defamatory?

(b) Whether the publications made by the Defendant on 24th July, 2018 about the Plaintiff on Adom TV is defamatory?

(d) Whether the publications made by the Defendant on 21st August, 2018 about the Plaintiff on Asempa FM is defamatory?”

(e) To these will be added, “Any other issues arising from the pleadings and the evidence.”

On the authority of the court to set down what issues are relevant in a

case I shall make reference to the case of FIDELITY INVESTMENT

ADVISORS v. ABOAGYE ATTA (2003-2005) 2 GLR 188, CA, in which it
was held that what issues were relevant and essential was a matter of law entirely for the judge to determine.

See also DOMFE v. ADU (1986) 1 GLR 653, CA per Abban JA as he then was in which he stated that although several issues were set down in the Summons for Directions for trial, most of them could hardly be described as relevant. To his mind, which issues were relevant were those that could dispose of the case one way or the other.

Further, please see FATAL v. WOLLEY [2013-2014] 2 SCGLR 1070 @ 1076 per Wood CJ;
“…Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues agreed upon by the parties at pre-trial. Thus if in the course of the hearing, an issue is found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues.

The issues will be dealt with in the order in the following manner by dealing discussing whether each statement in capable of defamatory meaning and if so, whether it is justified. For ease of reference, each of the statements complained of will be reproduced under each head and analysed as stated above,

ON ISSUE (A): WHETHER THE PUBLICATIONS MADE BY THE
DEFENDANT ON 18th JULY, 2018 AND 25th JULY, 2018 ABOUT THE
PLAINTIFF ON NET 2 TV IS DEFAMATORY?
18th July 2018-Net 2 TV
To begin with, the statement endorsed in the writ of summons and further detailed in the statement of claim regarding the words uttered at Net 2 TV on the 18th and 25th of July, 2018 and which the Plaintiff complains of are as follows;

“Look, I have dared Kweku Baako. He is a very very corrupt guy. Where is his paper….Kweku Baako is very corrupt, Kweku Baako is very very corrupt in his paper”

Kweku Baako. Have you seen his interest? Have you seen it? He’s always making a lot of noise. Kweku Baako, you are more involved in galamsey than anybody in Ghana….”.

“You (referring to the plaintiff), Anas and your lawyer, Yeah. They are

real evil guys (referring to the plaintiff and Anas)…….. Kweku Baako

would collapse NPP’s government should he allow it. Have you seen what he’s started with Charlotte Osei?…”

The Plaintiff attributes these words as being the false and malicious utterances made by the Defendant meant and were naturally and ordinarily understood by right-thinking members of the society to mean that the plaintiff:

b. Is engaging in an illegal act which destroys the environment and will not halt his activities’ efforts to fight illegal mining in Ghana.

c. Is a morally reprehensible person with malicious intents against his beloved country.

The question is whether the attribution made by the Plaintiff ought to be accepted by the court.

It must first be noted that at the Case Management Conference held on the 2nd of April, 2019, the CDs capturing all the programmes complained of, as well the pen drive containing the recorded telephone conversation between the Plaintiff and DW2, Nana Kwaku Badu alias Nana Asafoatse Badu, NPP Chairman of Amenfi East, were all admitted without objection as Exhibits “C” series, “D” series, “E” series, “F” series and “G” series and J (the CDS).

A comment must be made on Exhibit J.

Supreme Court decision in the case of RAPHAEL CUBAGEE v. MICHAEL YEBOAH ASARE & ORS; Suit No J6/04/17 dated 28th February, 2018 determined that “to record someone with whom you are having a telephone conversation is to interfere with his privacy beyond what he has consented to. In similar vein, it would amount to breach of privacy to put your phone on loudspeaker for the listening of third parties when you have a telephone conversation with another person because to so would be causing an intrusion into the caller’s private sphere beyond

what she consented to………We are therefore not persuaded to join those

jurisdictions that permit secret telephone recording by a party to the conversation.

Clearly therefore, on the facts of this case the secret recording of the Superintendent Minister amounted to a violation of his right to privacy which has been guaranteed by Article 18(2) of the Constitution.”

Under normal circumstances, then, Exhibit J would be inadmissible.

On the contrary, though, it was held in the case of TAMAKLOE & PARTNERS UNLTD. v. GIHOC DISTILLERIES CO. LTD, SC (Civil

Appeal No. J4/70/ 2018 dated 3rd July, 2019 (reported on the online
portal, Dennislaw as [2019] DLSC 6580, where evidence in respect of an unpleaded fact or by extension some other inadmissible matter, had been led without objection, the trial judge was bound to consider that evidence in the overall assessment of the merits of the case, unless that evidence was inadmissible per se.

In the circumstances of this case, then, Exhibit J was not objected to and would be admissible to assist the court in the determination of the vexed question of whether or not the allegation that Plaintiff is or was involved in illegal mining or “Galamsey” is justified.

The admissibility of evidence should however not be confused with the weight to be attached to it.

In the TAMAKLOE & PARTNERS UNLTD. v. GIHOC DISTILLERIES CO.
LTD, (cited supra) the Supreme Court, relying on Asamoah v. Servordzie [1987-1988] 1 GLR 67 the court stated that:
Evidence was led at the trial to prove the facts relied on. Therefore, if at the trial evidence being given by a party had no bearing on the facts he had pleaded it was the duty of opposing counsel to object to that evidence and exclude it. If that was not done, and the evidence got on the record, then a court could not shut its eyes to it in considering the case as a whole, particularly if it was against the party who led it.

The effect of these cases is that where evidence is admitted without objection, the court could well proceed to rely on such evidence as long as it did not result in a substantial miscarriage of justice. Further, where the court finds evidence not credible, it could also attach little or no weight to the evidence even though has been admitted without objection.

The same considerations would apply to Exhibits KOA series, KOA 1B, KOA 1G. KOA 1 K AND KOA2 which have also been admitted per the record of this court. Any suggestion to the contrary, that those photographs etc. should be declared inadmissible, as is being mooted by Mr. Adjei Dwomoh, when the telephone conversation between the Plaintiff and DW2(Exhibit J) has been admitted in similar circumstances, would be to approbate and reprobate.

Notice should also be taken of the fact that by the order of this Court, and in to the end that the sanctity of the electronic evidence was not brought into question, all the electronic records which had already been admitted for the Plaintiff without objection was to be played in open court. This was done for all the recordings.

The programme held on Net 2 TV on the 18th of July, 2018 and whose video recording is contained on Exhibit C, was played in open court on the 5th of May, 2020.

The following are the words uttered which were transcribed and tendered verbatim and in transcribed format (as evidenced in Exhibits C2 and C3).

[In the Twi language]
Host: sun ss wose ysrekohws part 3.

Ken: Hws Kweku Baako ma dare no. oys very corrupt guy. Where is his paper?

Host: Bokoo, bokoo Ken: Kweku Baako oys very corrupt. Kweku Baako is very very corrupt in his paper.

Host: sdsn nti na woreka sa.a? Ken: Saa a.d.es wei a ode aba ha no…

Host: Yeah Ken: Sa.a company no onkakyers me ss onnim ho hwee anaa…

Host: C&J? Ken: Yes. Alaska ss hwan no…

Host: Yeah

Ken: onkakyers me ss what does he know? Kweku Baako should come and tell Ghanaians ss oys galamsey anaa onys galamsey. Kweku Baako.

Host: Ma menfa paper no nkyers ys cameras. Ken: Kweku Baako

mskankyers Ghanafoo ss oys galamsey ana.a onys galamsey ansana ono nso mede ne record aba.

Host: Mmm Ken: Kweku Bamako. Wahu ne interest. Wahu osore a na n’ano gbagbagbagba. Kweku Baako woys galamsey kysn obia.

[English translation]
Host: Yes, you said we are going to watch part 3.

Ken: Look, I have dared Kweku Baako. He is a very very corrupt guy. Where is his paper?

Host: slowly, slowly.

Ken: Kweku Baako is very corrupt. Kweku Bamako is very very corrupt in his paper.

Host: Why are you saying that?

Ken: This thing that he has brought here…

Host: Yeah

Ken: That Company. Is he telling me he knows nothing about it?

Host: C&J?

Ken: Yes, Alaska or whatever.

Host: Yeah Ken: He should tell me. What does he know? Kweku

Baako should come and tell Ghanaians where he is into “galamsey” or not. Kweku Baako.

Host: Let me show the paper to our cameras.

Ken: Kweku Baako should come and tell Ghanaians whether he does “galamsey” or not before I bring his record out.

Host: Mmm

Ken: Kweku Baako. Have you seen his interest? Have you seen his interest? He’s always making a lot of noise. Kweku Baako, you are more involved in “galamsey” than anyone.

On this same program the Defendant further made the following statements against in both the Twi and English Languages which the Plaintiff says defamed him as follows:

[In the Twi language]
Ken: Obegu n’anim ase because revelations a mede ba no baabia ebi bska guy no. Am telling you. Ba.abia ebi bska guy no. snnsra meko ho na ways busy. Am going to sit the president down and explain everything one by one. Odi agoro a Kweku Baako begu NPP aban. Wahu nea ode a start Charlotte Osei no?

[In English]
Ken: He will disgrace the President because the revelations I am

bringing, a part of it involves the lawyer. I am telling you. I went to see the President yesterday, but he was very busy. I am going to sit him down and explain everything one by one. If he is not careful Kweku Baako will collapse his government. Did you see what he started with Charlotte Osei’s case?

In the case of PROFESSOR E.O. ADEKOLU v. THE UNIVERSITY OF DEVELOPMENT STUDIES lunreported) J4/59/2013) dated 19th
March, 2014, the Supreme Court stated with respect to the Tort of Defamation;

“ What must be clearly understood is that, the tort of defamation is meant and designed to protect persons from false imputations which harm their reputation before the eyes of right thinking members of the public………..

Has the Plaintiff succeeded in proving that the published memorandum is capable of a defamatory meaning?

1. Baron Parke, in the case of Parmiter v Couplands (1840) 6 M & W at 108, 151 E.R. 340 defined defamation to be “a publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, ridicule or contempt

….. “if any man deliberately or maliciously publishes anything [in

writing] concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him it is actionable

See also the definition by Lord Atkin in Tournier v National Provincial Bank [1924] 1 K.B. 461 where situations in which words used damage a person in his profession or business was addressed.

Lord Atkin again in Sim v. Stretch [1936] 2 A.E.R 1237 restated the definition of defamation as follows:

“Would the words tend to lower the plaintiff in the estimation of the right thinking members of the society generally ?”…….

2. A second element in the law of defamation under the common law is the interpretation of the words whether they are a.ctually defamatory? The words must be interpreted in their fair and natural meaning as reasonable, ordinary people will understand unless an innuendo is pleaded. In the meanings ordinarily ascribed to the words used, it is clear they are defamatory especially as no innuendos have been used.

3. To be defamatory, there must be something in the defamatory statement referable to the plaintiff. In the instant case this is not difficult to connect. This is because it was the plaintiff that the 2nd Defendant addressed the memorandum to.

4. Finally, to constitute defamatory material, the words complained of must have been published.. ”

The evidence before the court will be assessed to establish whether these elements are present in this case.

1. ON WHETHER THE WORDS ARE LIKELY TO INJURE THE
REPUTATION ETC. OF THE PLAINTIFF:
In this case, the question to be settled is whether any of the circumstances exist in this case to establish whether the words used in our Ghanaian setting was meant to ridicule and expose the Plaintiff to hatred, contempt and make him appear worthless before his peers and other right thinking persons. Are the words likely to render the Plaintiff ridiculous or tend to hinder mankind or people from associating or having intercourse with him? If that is so, then they would be actionable.

The Plaintiff was described in the programme as “Kweku Baako is very corrupt, Kweku Baako is very very corrupt in his paper”

Further, the Defendant said words to the effect that the Plaintiff is

“involved in galamsey than anybody in Ghana….”.

Further, the Defendant stated on air that the Plaintiff and a person by name Anas, “They are real evil guys” and finally under this head that

“Kweku Baako would collapse NPP’s government should he allow it.” Have you seen what he’s started with Charlotte Osei?…”

Are these words capable of causing the Plaintiff to be exposed to hatred, contempt and make him appear worthless before his peers and other right thinking persons? Are the words likely to render the Plaintiff ridiculous or tend to hinder mankind or people from associating or having intercourse with him?

In my candid view, they doubtlessly can.

The Plaintiff has, as is expected in a suit of this nature, related to the Court his pedigree.

He says he is a renowned Journalist and the Editor-in-Chief of the New Crusading Guide newspaper. The Plaintiff avers that he has been a practicing journalist with the highest repute since 1979 and by dint of hard work, perseverance and ingenuity, he was awarded the highest national award of Ghana, the Order of the Volta in the year 2008 by the President of the Republic of Ghana. As a journalist, Plaintiff says he rose through the ranks with such supersonic speed and became the Editor or several newspapers at a very tender age. Such newspapers included but are not limited to, the Frontline Message, Organ of the Movement on National Affairs and the Sport Concorde.

The Plaintiff avers that he further rose to the position of Editor-in-Chief for the several newspapers including The Guide (now the Daily Guide), The Crusading Guide and The New Crusading Guide.

The Plaintiff has also adduced unchallenged evidence that

I hold therefore that for any person, including a person such as the Plaintiff, with a profession as a journalist of no mean repute and interest in politics, it is obvious that attributing corruption, evilness and a propensity to collapse the government have negative and even criminal connotations that every right thinking person, in his milieu here in Ghana or not, would shy away from.

2. ON THE OF WHETHER THE WORDS ARE ACTUALLY
DEFAMATORY:
In my view, when given their ordinary meaning, the attributes being given to the Plaintiff as being “very very corrupt”, “evil” and participating in illegal mining or galamsey “than anybody in Ghana” and being likely to collapse the NPP government if given the chance definitely have negative connotations and are, to say the least, not complimentary. In fact being corrupt and participating in illegal mining or galamsey can be the subject of criminal charges.

Without going into any greater detail therefore, it is quite clear that the words are actually defamatory.
3. ON WHETHER THE DEFAMATORY STATEMENT IS REFERABLE
TO THE PLAINTIFF:
There is sufficient evidence that the statement is referable to the Plaintiff in that his name, “Kweku Baako” is mentioned several times. At no point has the Defendant ever denied that the statements were made in reference to the Plaintiff. In fact, in his cross-examination, the Defendant made the admission without any equivocation that he was referring to the Plaintiff when he made the statements and as such, there will be no useful purpose served by taking a different tangent to discuss it, since by law, the admission has been made.

In FORI v. AYIREBI [1966] GLR 627, SC, it was held at Holding 6 of the head notes that;

“When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-exa.min.ed upon, he need not call further evidence of that fact.”

(See also:

• TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882)

• ASHANTI GOLDFIELDS CO. LTD. v. WESTCHESTER RESOURCES LTD. [2013] 56 GMJ 84 CA,

• HAMMOND v. AMUAH [1991] 1 GLR 89 @ 91).

I therefore hold that the words uttered were referable to the Plaintiff.

4. ON THE ELEMENT OF PUBLICATION:

In this case, there is no question that the element of publication is clearly present. The court has, together with the parties’ lawyers, made it a point to watch the recorded version of the programme which was broadcast on Net 2TV in the course of the proceedings.

I have noted that in the submissions filed by the Plaintiff, Mr. Adjei Dwomoh for the Plaintiff has shown that the publication went far and wide and that it might have even been carried by “sister stations” of the various news media and on social media.

I will not encourage that kind of argument because there must be actual evidence of carriage on various media. The court will not take judicial notice of mattes that are capable to actual proof.

That notwithstanding, publication on Net 2 TV, by law, would be sufficient. In the case of PROFESSOR E.O. ADEKOLU v. THE UNIVERSITY OF DEVELOPMENT STUDIES & ANOR (cited supra) it

was held that the argument that, the publication was only copied to three (3) officials who had interest in that communication was found to be untenable. Once persons other than Appellant therein (who was the recipient of an office memorandum which contained the defamatory statement) were made aware of the publication, the Court held that the tort had been established. Once the plaintiff proves that the words were communicated to at least one person other than the Plaintiff, the evidential burden of publication would have been met.

See: AMOAKO v. TAKORADI TIMBERS LIMITED [1982-83] GLR 69.
In the same vein, the evidence shows that the words were not uttered to the Plaintiff alone, but were broadcast on TV. The broadcast, which is unchallenged and undenied, would be sufficient evidence of publication.

The above matters now settled, it is clear that the Plaintiff has established a prima facie case of defamation, subject to the assessment of the defences put up.

THE DEFENCE OF JUSTIFICATION IN THE LIGHT OF THIS CASE:
I shall now assess the Defendant’s evidence offered in respect of the defence of Justification. I have, elsewhere in this Judgment detailed what the defence of Justification requires. I have also set out the particulars as put up by the Defendant.

In his written submission on behalf of the Defendant, Mr. Raphael Agyepong writes that “the tantrum between the Plaintiff and Defendant started when the Plaintiff on the 27th day of June, 2018 on a morning show program at Peace FM called “Kokrokoo” as bogus, buffoon, trash and can go to hell after the defendant had publicly announced his intention to show a documentary called “Who Watches The Watch Man” which featured a gentleman called Anas Aremeyaw Anas who is a known protege of the plaintiff. Although Defendant had not pleaded the said incident in his defence, it came to bear without any challenge from Plaintiff’s counsel that indeed the Plaintiff had uttered unpalatable words about defendant on 27th June, 2018 at Peace FM program called Kokrokoo which as a result provoked the Defend.ant to reply same a.gainst the Plaintiff on the dates herein mentioned by the plaintiff. ”

The Defendant relies on the case of BONSU v. FORSON [19621 1 GLR 139 to the effect that defamatory words spoken in the heat of passion were not actionable. Thus, for the Defendant, because the Plaintiff had uttered unpalatable words about defendant on 27th June, 2018 at Peace FM program called Kokrokoo which as a result provoked the Defendant to reply same against the Plaintiff on the dates herein mentioned by the plaintiff.”

Clearly, BONSU v. FORSON is distinguishable from this one and would not be applicable in this case because there were no exchanges between the parties. In the Bonsu case, the exchanges were held contemporaneously. In this case, the matter which provoked the Defendant had occurred on the 27th of June, 2018. The matters complained of commenced several weeks after, from 18th of July, 2018 until 21st of August, 2018.

That stretch of time can by no means be considered at law to be the heat of, or even seething passion.

Let me state without any equivocation that uttering defamatory words that are true could be a defence amounting to justification in an action for defamation, even if the motive is vengefulness. However, sight must not be lost of the fact that the Defendant has the burden of proving that the statements are substantially true by offering positive evidence to establish the claims he made on TV.

Please refer to:

• OKUDZETO ABLAKWA (NO.2) v. ATTORNEY-GENERAL &ANOR
(cited supra)
• KLAH v. PHOENIX INSURANCE CO. LTD(cited supra)
What then is the evidence led by the Defendant to prove that the statements made that the Plaintiff is:

“Kweku Baako is very corrupt, Kweku Baako is very very corrupt in his paper”

Further, the Defendant said words to the effect that the Plaintiff is

“involved in galamsey than anybody in Ghana….”.

Further, the Defendant stated on air that the Plaintiff and a person by name Anas, “They are real evil guys” and finally under this head that

“Kweku Baako would collapse NPP’s government should he allow it ”

are fair, factual and totally justified?

Each allegation and the evidence offered will be dealt with.

JUSTIFICATION: ON THE ALLEGATION OF CORRUPTION AGAINST
THE PLAINTIFF
The Defendant alleges that the Plaintiff is corrupt relating to the taking of bribes to give ministerial appointments and publications. What is the evidence offered in proof of this allegation?

In his pleadings, the Defendant emphasized that the words he uttered

“about the Plaintiff are indeed true, factual and that the comments were justified and that he was more than willing to corroborate same with evidence in his possession at the trial”.

It was expected then that at the trial, by way of his witness statement and in cross-examination, some positive evidence of the corruption would be brought forward.

A study of the Defendant’s witness statement, which was adopted as his evidence-in-chief, including paragraphs 9, 10, 11 and 12 which were struck down for not having been pleaded, would reveal that there is no evidence offered to corroborate the assertion that the Plaintiff is corrupt

and has been involved in the taking of bribes to give ministerial

appointments and publications.

When cross-examined on the matter on the 19th of March, 2020 pages 78 of the proceedings had the following;

Q: You also stated that the plaintiff was acting like an Italian mafia and

God fathers, is that not so?

A: Yes.

Q: You also mentioned that certain persons paid bribe to the plaintiff to

get Ministerial Appointments?

A: Yes.

Q: I am putting it to you that you have brought no document before this

honourable court to prove that somebody paid the plaintiff to get Ministerial Appointment.

A: Yes my lady but if the plaintiff would be sincere to himself, even

where they sit to have meetings at Coffee Shop, it is called Coffee Shop Mafia. Again I want to say that I said whatever I said because of the insults he rained on me and he broke the trust.

Q: I am putting it to you that you have no proof that you have brought

before this honorable court to confirm that the plaintiff took envelope and publish stories.

A: He is saying I have no proof. I have told the court that I said

whatever I said because of what he said and I want the definition of

the Coffee Mafia and what they do there. My la.dy it is unfortunate

that most Ghanaians are cowards and are afraid to come forward to

collaborate what I have said.

Q: Would you concede that when you refer to somebody as Italian

Mafia, you are associating him with criminality in the context that you said it.

A: Yes and I have stated earlier that if the plaintiff would be sincere to

this court, Coffee Shop at Labone where they sit, they call it “Coffee Shop Mafia” so I am not the only one saying it.

(Emphases mine)

The law has always been that it is incumbent on the person who makes a positive assertion in a case who has the burden to adduce the evidence to prove it. It is not for the one who denies a claim who has the burden to prove what is denied or the non-existence of a fact.

See the case of DANIEL KWASI ABODAKPI v. THE REPUBLIC, CA CRIMINAL APPEAL NO.H2/6/07 20th JUNE 2008, it was held that;
“I have always understood it to be a general rule that if a negative averment be made by a party which is peculiarly within the knowledge of the other the party within whose knowledge it lies and who asserts the affirmative is to prove it and not he who avers the negative.

It was observed that the Plaintiff seemed most respectfully, to have had the misguided opinion that he had no burden to prove the truth of the assertion that some appointees had to pay bribes to the Plaintiff or people he refers to as “Coffee Shop Mafia”, but that it was for the Plaintiff to prove his innocence of the allegation.

The bottom-line though, is that the Defendant, from his own showing now alleges in cross-examination that “it is unfortunate that most Ghanaians are cowards and are afraid to come forward to collaborate fsic]

what I have said”, meaning, in all likelihood that the Ghanaians he was expecting to come and bear witness of some interference from the Plaintiff had balked and failed or refused to turn up.

What would have been of evidential value, in this case would have been for the Defendant to produce a material witness to corroborate his assertion that some appointees had had to bribe the Plaintiff and the “Coffee Shop Mafia”.

On failure to call a material witness, see OWUSU v. TABIRI AND ANOTHER [1987-88] 1 GLR 287, in which it was held that failure to call a material witness was fatal to the case of the party who had the onus to prove an assertion made.

In conclusion, I hold, under this head that the Plaintiff Defendant has been unable to justify the allegation that the Plaintiff is corrupt and some appointees had had to bribe the Plaintiff and the “Coffee Shop Mafia”.

JUSTIFICATION: ON THE ALLEGATION THAT THE PLAINTIFF IS
“INVOLVED IN GALAMSEY THAN ANYBODY IN GHANA”.
It cannot be over-emphasized that the Defendant had a burden to prove that the Plaintiff is involved in illegal mining or “Galamsey”.

The case per the particulars indorsed in the Statement of Defence are that;

iii. That the Defendant shall lead evidence including audio conversation and text messages to corroborate the words he uttered.

To corroborate the evidence of the Plaintiff’s involvement in “Galamsey”, the Defendant has brought in evidence Exhibit KOA Series, which are documents of a company known as C& G Aleska.

Exhibit KOA 1 series includes an Agreement dated 9th August, 2016, between the Government of Ghana and C& G Aleska Company Limited in which a prospecting licence was granted to the latter.

Also included in the series Exhibit KOA 1B, a Mining Lease dated 23rd December, 2016, for a place known in the Amenfi Central District of Western Region. From the evidence of DW1, the licence of C&G Aleska has been suspended by the Minerals Commission.

The evidence before the Court is further that the suspension was due to some illegal activities being undertaken by the said C&G Aleska.

There is no question, and same is undenied, that the Plaintiff had intervened in the case of C&G Aleska when the licence of the company was suspended.

The question though is whether the intervention is evidence of the C&G Aleska Company acting under the orders and instructions of the Plaintiff It is the case of the Plaintiff that the intervention was due to the fact that the Plaintiff’s friend, a lawyer by name Mr. Egbert Faibille, had asked that the Plaintiff intervene or their behalf.

In his cross-examination on the 19th of March, 2020, the following

transpired between the Defendant and Mr. Adjei Dwomoh;

Q: You indicated at paragraph 8 of your witness statement that Minerals

Commission confirmed that anytime that the authorities arrest individuals for galamsey, the plaintiff places a call to intervene on behalf of the said arrested people and warn the officials to say off

Mr-. Agyapong: My la.dy I have an objection. The statement at

paragraph 8 is very clear so the question that the minerals commission confirmed is indeed not in the proper context.

By Court: The question must be situated in that context.

Q: Counsel reads paragraph 8 of the defendant’s witness statement to

him, did you say that?

A: My la.dy counsel put two statements together so if I can explain. First

I said I will bring documents to prove that C&G Alaska is doing illegal mining from Minerals Commission. Secondly, anytime C&G Alaska is arrested, the plaintiff will place a call and example is the call he placed to the Minister of Environment and Technology who is responsible for the Inter-Ministerial Committee for the stoppage of galamsey and Minerals Commission has been here to confirm that C&G Alaska was doing illegal mining.

Q: Is it now your testimony that when persons were arrested for doing

galamsey, the plaintiff places a call to the minister in charge of Inter-ministerial Committee.

A: Yes because and the plaintiff also told him that he called the Minister

and they also told him that they were bringing their documents and even the Minister for Lands and Natural Resources, there have been several publications by the plaintiff scaring and threatening the minister from his own papers. Anybody who touched C&G Alaska, he wa.s there to threaten them and also threatened the NPP Chairman and has also threatened Professor Frimpong Boateng and that is why is afraid to come to court. He has been calling people to intercede between the plaintiff and I to settle it out of court because he has threatened him. I will not lie for anybody.

Q: I am putting it to you that the plaintiff has not threatened anybody

including the Minister.

A: He has threatened the Minister and the Minister told me himself and

he had threatened the NPP Chairman.

Q: I am putting to you that you have not brought any proof before this

honourable court that the plaintiff has threatened the Minister.

A: What is threat? Threat can be by word of mouth and if it is not

record.ed., he will sit on the fence and be an Epimenid.es.

The truth of the matter is that the Defendant has been unable to show that the Plaintiff has an interest in C&G Aleska by way of ownership or directorship and has been unable to show that he instructed their illegal activity.

Further, the Defendant has been unable to show the alleged Police interference which resulted in a serious verbal exchange between the Plaintiff and the NPP Chairman because the Plaintiff wanted the Chairman to kowtow to his instructions and allow C&G Aleska Company to go back to site and continue the illegal activities. In fact, the conversation between the Plaintiff and DW2 which was played in this court was cordial, and anything but a serious verbal exchange between the Plaintiff and the said NPP Chairman.

The entire recording was rather to verify from DW2 whether he was involved in Galamsey or illegal mining and to find out why he and others had allegedly gone to set properties ablaze at the C&G Aleska site. There was no intervention on behalf of C & G Aleska by the Plaintiff, neither was there any indication in that conversation that indicated that he had a particular interest in C&G Aleska.

The conversation was not actually what it was touted to be per the pleadings or in the statements made in the media house.

In cross-examination of DW2 on the 14th of May, 2020, the witness conceded that there were no heated exchanges viz;

Q: The conversation that you had with the plaintiff on the said phone

call was not a hostile one I believe.

A: It was a telephone conversation neither of us could see the others

face so nobody could tell whether one was angry or not.

Q: So you concede that there wa.s no insult thrown when he called you?

A: No there were no insults.

The witness also sought to impeach the recording, insisting that it had been doctored. Bearing in mind that the Defendant had had the said exhibit since it was filed in March, 2019, I find that the Defence had ample opportunity to have assessed the recording, but it looked to me, when the recording was played that it was the first time the witness or indeed, counsel for the Defendant had taken the trouble to listen to it. That was their bane.

The Defendant had undertaken to bring in evidence a police report to corroborate this but he failed to do so. Rather, he produced a statement which makes no reference whatsoever to the Plaintiff.

Further, the evidence of the Defendant was that the Plaintiff had interfered with the work of the Minister for Environment, Science and Innovation, the venerable Prof. Kwabena Frimong Boateng, who was listed to be a witness in this trial. After several adjournments, the Defendant opted not to exercise the right to call him as a witness anymore.

In my view, one cannot make allegations of the nature raised in this cause and fail to call the material witness who was supposed to have been the victim of interference and threats and the very source of the information.

I shall finally deal with the probative value of the photographs that were tendered in evidence as Exhibits KOA 1G.

In my view the person who took the photographs failed to authenticate them as envisaged by law in order to counter any challenges arising against the said photographs.

Section 136 of the Evidence Act, 1975 (NRCD 323) states;
Section 136— Authentication.

(1) Where the relevancy of evidence depends upon its authenticity or identity, so that authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.

(2) Permissible means of authentication or id.entification includ.e but are not limited to, those provid.ed in sections 137 to 161.

Further to the above, the relevant section 139 states;

Section 139—Authentication by Testimony of Witness with Knowledge.

139. Authentication or identification may be by testimony that a matter is what its proponent claims.

Also of relevance is section 7 of the Electronic Transactions Act,2008 (Act 772) which states;
7. (1) The admissibility of an electronic record shall not be denied as evidence in legal proceedings except as provided in this Act.

(2) In assessing the evidential weight of an electronic record the Court shall have regard to

(a) the reliability of the manner in which the electronic record was generated, displayed., stored or communicated.,

(b) the reliability of the manner in which the integrity of the information was maintained.,

(d) any other facts that the Court may con.sid.er relevant.

In this case, the proponent of the photographic evidence, whether electronic or otherwise i.e. the Defendant, in order to satisfy the requirements of the law, not only on admissibility but also authentication and weight, ought to have adduced affidavit evidence about the sources of each of the photographs. Who exactly took each photograph and by what means? Is a cellphone or camera that was used? When and where was it taken?

The photographs ought to have been labeled by the person who took them, and authenticated with a signature or mark.

Granted that the photographs, (for what they are worth, since the quality was obviously bad black and white photocopies) showed of devastated lands, there ought to have been evidence properly adduced that these were indeed taken at C&G Aleska sites and that for instance, the Plaintiff was in them.

There is no person, not the Plaintiff, or anyone else, whether linked to him or not.

Other than to evoke emotions, the photographs have no evidential value.

I therefore hold under this head that the Defendant has been unable to demonstrate to the required standard that the statement made that the Plaintiff is involved in Galamsey is justified.

ON THE MATTER OF WHETHER THE STATEMNT THAT THE
PLAINTIFF AND OTHERS WITH HIM “THEY ARE REAL EVIL GUYS”
AND THAT “KWEKU BAAKO WOULD COLLAPSE NPP’S
GOVERNMENT SHOULD HE ALLOW IT”
After having discussed the law and the evidence offered, there is no question that the Defendant has offered no justification for these words, other than to state that these vituperative words were said in the heat of passion in response to the Plaintiff’s insults on Peace FM in June 2018.

Without having to rehash the law as discussed in preceding paragraphs, there is no gainsaying that such a defence will not satisfy the requirements of the law on defamation.

I therefore hold that the plea of Justification for the words uttered on Net 2 TV on 18th July, 2018 cannot be supported by the evidence before the Court. The Defence will fail on that score.

FINALLY: ON FAIR COMMENT
I shall now deal with the matter of fair comment in relation only to the matter of C&G Aleska since the others do not have any evidence adduced on them.

Learned lawyer for the Defendant has pointed out in his argument that the Plaintiff, during trial sought to distance himself from a company called C & G Aleska which Defendant accused Plaintiff of being involved in. Interestingly, he says, by listening to Plaintiff’s exhibit J, which was recorded without Defendant’s witness DW2’s knowledge and consent, it was the Plaintiff who called to intervene on behalf of C & G Aleska after DW2 had with the help of Ghana Police arrested 13 Chinese nationals at Wassa Akropong in the course of fighting against illegal mining or galamsey. Indeed, the Plaintiff himself confirmed during crossexamination by Defendant’s counsel on the 4th day of June, 2019 that he intervened on behalf of the company and on behalf of a good friend who is a lawyer and this what transpired;

The question that begs to be answering, Mr. Agyepong says, is ‘why will the Plaintiff call DW2 and again Professor Kwabena Frimpong Boateng all in the name of C & G Aleska, if he claimed to have no personal interest in the company?’

According to Mr. Agyepong, if the Plaintiff’s claim is that it was just to intervene for a lawyer friend then there was absolutely no need for him to call DW2 in respect of the same matter. Importantly, what is Plaintiffs business in intervening for a friend who is a lawyer and also a known government official who could have easily sought audience with the Minister and register his concerns to him?

Mr. Agyepong argues that it is a known fact that there were several discussions between the Plaintiff and DW2 and Professor Kwabena Frimpong Boateng on the arrest and suspension of C & G Aleska’s employees and license. Thus, the said discussions bothered on galamsey which is of huge public interest leading to the formation of Inter-Ministerial Committee on Illegal Mining by the President.

The Defendant, it is argued, is a known anti-corruption crusader whose utterance against the Plaintiff and other known and present public officials attract no malicious motive but rather always speak to issues of national interest for the good of it.

Mr. Agyepong has also set out what “MALICE” is as defined by Black’s Law Dictionary, Tenth Edition is as follows:

(1) The intent, without justification or excuse, to commit a wrongful
act (2) reckless disregard of the law or of a person’s legal rights
Mr. Agyepong recalls that it is in contention that it was the Plaintiff who called Defendant bogus and trash and it was within the Defendant’s right to respond to the said provocation and further conversations between Plaintiff and DW2 and Professor Kwabena Frimpong Boateng which were of immense public interest and require the attention of the Defendant because as DW2 indicated during cross-examination, that he (DW2) had complained to various government official about the activities of C & G Aleska but nobody would intervene and his only hope was to inform the Defendant. Thus, the publication made by the Defendant on 27 th July was fair, factual and totally justified.

In my view, going by the examples of what would constitute a matter of public interest, it is without doubt that the fight against Galamsey or illegal mining is one of immense public interest. It is well-known that the scourge of illegal mining is a cause for alarm and that not a day passes by without some news item being published about it.

However, there is no question also that the conversation contained in Exhibit J actually has no intervention from the Plaintiff to DW2, asking him to release any Chinese national linked to C & G Aleska.

Further, there is no evidence of a police report indicating that there was any arrest at the time that DW2 was stating.

Bearing in mind that the Defendant depended heavily on Wassa Amenfi Chairman, his evidence was to day the least, crucial to the case of the Defendant. What testimony he rendered adversely affected the convicted stance of the Defendant.

The case of the Defendant is also not helped by the fact of abandoning the intended attendance of his subpoenaed witness, the Minister for

Environment, Science and Innovation who had charge of the entire vexing matter of Galamsey, who was involved and how to end it.

As stated in the case of BENNEH v. NEW TIMES CORPORATION AND ANOTHER case (cited supra), an expression of opinion or a
comment, to be fair, needs to be based on facts. The defence does not extend to cover misstatements of fact however bona fide. A comment could not be fair which was built upon facts which were not truly stated. In this case, the Defendant has made clear and unequivocal statements on the record per the pleadings, particularized to the effect that;

i. That C&G Aleska Company acting under the orders and instructions of the Plaintiff engaged in illegal mining which led to

NPP Chairman at Wassa Amenfi East Constituency reporting same

to the Police.

iii. That the Defendant shall lead evidence including audio conversation and text messages to corroborate the words he uttered.

There is actually, however no factual evidence led to justify the said comment. In such circumstances, one would find that it cannot be classified as fair, if it is also found to be malicious.

What is malicious has been held in the PROFESSOR ADEKOLU case to be subjective. I find that the explanation of the Defendant to the effect that it was because the Plaintiff has used unpalatable words about him on Peace FM that he also decided to speak the way he did, in and of itself an indication of maliciousness. Not only were the words not based on fact, but the Defendant ought to have taken steps to have verified their veracity before he published them in any shape of form, including the expression of an opinion.

In any case, the words were not expressed as an opinion, but as a categorical statement of fact, in the pleadings as well as the evidence.

The second leg of this head relates to comments made by the Defendant on Net 2 TV on the 25th of July, 2018 which has been indorsed viz;

25th July 2018- Net 2 TV
“Kweku Baako, Kweku Baako should tell us he knows nothing. As soon as we won power, Michael Ofori-Atta, Chairman Wontumi claimed ownership of all these concessions. But because (President) Akufo-Addo has won power, he won’t continue operations. Then Kweku Baako furiously called Michael that Wontumi wants to take possession of his (concession), in that the compa.ny belongs to him and C & G Aleska. With all seriousness, so Michael called one of Wontumi’s men to come and trash out the issue with Kweku Baako in Accra as he (Michael) doesn’t want any problem.. They should leave it (referring to the concession) to them (referring to Kweku Baako and co.) if Kweku Baako claims it is his people. Then, he told him (referring to Michael) that he won’t come. He would never meet Kweku Baako. Wontumi said he is not interested in all that is happening. He ca.n bring a chairman who was present and they are all aware of these things. Now that I am leaking the information, he’s claiming no knowledge of it (referring to the information)”.

On the 25th day of July 2018, the Defendant on Net 2 TV station, the particular statements complained about by the Plaintiff are in evidence in both Twi and English Language as follows:

Host: Nti how do you relate yen a a ys panyin Kweku Baako into all this? How do you rope in into…?

Ken: Kweku Baako smskankyers yen ss onnim. Mmere a Michael Ofori Atta ys wiini power ps this concession no nyinaa na Wontumi nso ss ne dea but snam ss Akuffo Addo aba nti no onys bio.

Host: Hmm.

Ken: Then Kweku Bamako called Micha.el abufuo so ss Wontumi psss ogye n’ayi na.a C&J Alaska ne wei nom company gidigidigidi paa oo. So, Michael called Wontumi aberantes b.ako ss omra Nkran na omehyia Kweku Bamako na omonka assm no na ompsss biribia bsys ayi na Kweku Baako ss ne nkorofoo na sya.a onyae ma omo. sna ose ono des omma. omma mehyia

Kweku Baako snns ne okyena. Wontumi ss onys interested in des skoso no nti no. We can bring ayi file a, baako a owoho they are all aware of these things. snnsdes, me leaki information ose onnim ho hwee. Lawyer no sna me phone no mennys IT te ss mo nanka meyi suspension letter ankasa on the 30th of November 2016. sna Minerals Commission stopee this mining company. Now the question is, 2016 30th November, election was December 7th..

[English translation]

Host: How do you relate Kweku Baako to all this issue?

Ken: Kweku Baako should tell us he knows nothing. As soon as we won power, Micha.el Ofori-Atta, Chairman Wontumi claimed ownership of all these concessions. But because (President) Akufo-Addo has won power, he won’t continue operations

Host: Hm.

Ken: Then Kweku Baako furiously called Michael that Wontumi

wants to take possession of his (concession), in that the company belongs to him and C&G Aleska. With all seriousness, so Michael called one of Wontumi’s men to come and trash out the issue with Kweku Baako in Accra as he (Michael) doesn’t want any problem. They should leave it (referring to the concession) to them (referring to Kweku Bamako and co.) if Kweku Baako claims it is his people. Then, he told him (referring to Michael) that he won’t come. He would never meet Kweku Baako. Wontumi said he is not interested in all that is happening. He can bring a chairman who was present, and they are all aware of these things. Now that I am leaking the information, he’s claiming no knowledge of it (referring to the information). I am not an IT person I would have showed you a suspension letter dated 30th November 2016 where the Minerals Commission stopped this mining company. Now the question is election took place on December 7th.

In discussing the law and the evidence relating to the incident at Net 2 TV, the law on what would be justification and fair comment in relation to the allegation that the Plaintiff is involved in Galamsey or illegal mining has been discussed at length. Rehashing them would only be tedious and not serve any useful purpose as the same principles would apply in this matter of the Plaintiff trying to take over the concession of one Mr. Wontumi.

No evidence is offered to prove this allegation at all. Unfortunately, the people involved in the matter, the said Mr. Wontumi and a gentleman whose name is only stated as Michael, who would have been material witnesses were not invited to corroborate these assertions, thereby making the utterances by the Defendant unsubstantiated.

For the above reasons, the Defendant would fail to meet his evidential burden on the second leg as well.

I therefore hold that the defence of fair comment would also not avail the Defendant and hold that the publications made by the Defendant on 18th July, 2018 and 25th July, 2018 about the Plaintiff on Net 2 TV are defamatory.

ON ISSUES (B), (C) AND (D) TOGETHER:
In discussing the issue (A) above, a lot of detail has been gone into. Having discussed the law and the evidence, the same principles would apply to issues (B), (C) and (D) below.

The approach would therefore be to deal with them in sum. These issues also relate to the Galamsey, Secret recording of President of the Republic, and corruption activities such as taking of bribes to give ministerial appointments and publications. These are;

ON ISSUE (B): WHETHER THE PUBLICATIONS MADE BY THE
DEFENDANT ON 24th JULY, 2018 ABOUT THE PLAINTIFF ON ADOM
TV IS DEFAMATORY?
24th July, 2018- Adom TV
“You don’t know the guy very well. They are best of friends because of what he can get…… You don’t know the guy very well,…..”“He is a hypocrite……. Kweku Baako is not an honest man at all……* “I said he’s not a saint. Kweku Baako is not a saint. He’s evil…… Very evil man. He’s a very evil man……*

ON ISSUE (C): WHETHER THE PUBLICATIONS MADE BY THE
DEFENDANT ON 24th JULY, 2018 ABOUT THE PLAINTIFF ON OMAN
FM IS DEFAMATORY?
24th July 2018-OMAN FM
I’ll move with him on the same level. I’ll move with him on the same level.

They publish after taking their envelopes.

It won’t happen again. I said henceforth, whoever will be given an appointment won’t go to them again. We are not afraid of them.

“Kweku Baako is not a clean man that President would tolerate in the office anymore … I said., I have concluded that Kweku Baako is not

clean”.

ON ISSUE (D) WHETHER THE PUBLICATIONS MADE BY THE
DEFENDANT ON 21st AUGUST, 2018 ABOUT THE PLAINTIFF ON
ASEMPA FM IS DEFAMATORY?”
21st August, 2018- Asempa FM
I am talking about it. I do my investigation. If you like, he ga.ve me his contact number; Wassa Amenfi East, call the chairman. He caused the arrest of workers of C & G Aleska. Kweku Bamako called to threaten him why they were arrested. He said I should mention his name anywhere and he will come and testify and set him up with the gangs who brought him GHC1,OOO. He sent the money to the police station because he doesn’t take money……This is my experience with Kweku Baako. Look, do you understand it? He said he told him in pain language, when he caused the arrest of the workers of the C & G Aleska, Kweku Baako told the chairman that why should he cause the arrest of some engaged in gala.msey while he (referring the Wassa Amenfi East Chairman) was into it himself? He told him, he wasn’t into galamsey”.

ON THE MATTER OF THE ALLEGED SECRET RECORDING OF HIS
EXCELLENCY THE PRESIDENT
Apart from the issue relating to the alleged secret recording of His Excellency the President, the others under this head have been dealt with.

Mr. Raphael Agyepong has addressed on this matter viz;

Respectfully, Your Ladyship, we cannot resolve this issue without making reference to the first issue because it appears to be relation in terms of the words uttered by the Defendant. Interestingly, when Plaintiff’s exhibit D1, which is the recording of Adom TV program was played in court, Plaintiff’s good friend by name Allotey Jacobs who appeared on the said show with defendant, unreservedly apologized to Defendant on behalf of the Plaintiff about the fact that Plaintiff had represented to the Presidency that a documentary called “Number 12” which was yet to be aired by Plaintiff’s protege, Anas Aremeyaw Anas was under the supervision of British Broadcasting Corporation (BBC) and that they needed to record the President and Vice President for them to clear issues out since their names were mentioned by a suspect in the videos. However, when Defendant got to know that it was not true that BBC was involved, he got furious and churned his anger towards the Plaintiff leading to the said outbursts on that day.

My lady, at all-time material leading to the interview and recording of the President, the Plaintiff had represented to the President that BBC wa.s involved in the Number 12 documentary so the President needed to grant the said interview in order to clear his name which was mentioned, however, it turned out not to be true and this is confirmed by Plaintiff’s own exhibit D1 which was an apology from Allotey Jacobs to Defendant on behalf of the Plaintiff.

I fail to see how Mr. Agyepong for the Defendant can maintain his stance on this matter when the following transpired in cross-examination of the Defendant on the 19th of March, 2020;

Q: You also said that the plaintiff at a meeting of only three people

together with Anas secretly recorded the President, is that not so?

A: Yes my lady. The plaintiff himself in his witness statement said they

were 10 so I do not know the relevance whether it is 3 or 10. Mr. Kweku Baako a Veteran Journalist who is a good friend of the President and knows the implication of Anas recording the President and airing it on Air for public to view or see, I believe it was ill intended.

Q: I am putting it to you that you were not at this said meeting?

A: I was not there.

Q: I am putting it to you that the meeting related to the investigative

work that was done by the Tiger IPI Team which was being presented to the President and Senior government officials.

A: Well my lady it was presented to Senior government officials but I

am saying that Mr. Baako with his experience and a good friend of the President ill advised him into accepting to give interview to Anas and he wa.s there and he could not tell the President not to even grant the interview and he was at the said meeting when Anas interviewed the President.

Again Anas is a boy of Mr. Kweku Baako and he trained him. If he had good intentions, he would not ha.ve advised Anas even to meet the Presid.ent and the shameful part of it is that, a whole sitting President was aired where his face was there for everybody to see and Anas’s face was covered so I asked myself, is Mr. Bamako a true friend of the President, I do not believe so, so that is why I made that statement.

Q: You do conced.e by what you have just said that he knew he was being interviewed only that it was ill advised..

A: Yes I concede that.

Q: I put it to you that the recording of the President was not done in secrecy but with his knowledge and consent only that you deemed to be inappropriate

A: Yes I deem same that it is inappropriate but I concede that the

President was aware but his good friend., Mr. Bamako could have told and advised the President the implications of granting audience to Anas.

(Emphases mine)

Clearly then, to have made the statement that the President was recorded secretly was uninformed and false. That was the basis for the assertion that the Plaintiff is “not a saint”. The Defendant pleads justification, but clearly, from the law and the evidence, including his own concession or admission before this Court, that defence will not avail him.

In the circumstances, it is held on issues (b), (c) and (d) that;

• The publication made by the Defendant on 24th July, 2018 about the plaintiff on Adom TV is defamatory;
• The publication made by the defendant on 24th July, 2018 about the plaintiff on Oman FM is defamatory, and;
• The publication made by the Defendant on 21st August, 2018 about the plaintiff on Asempa FM is defamatory.
CONCLUSION:
There being no other issues arising from the pleadings and the evidence, Judgment will be entered for the Plaintiff as follows;

a. I grant a declaration that the statements made by the Defendant in both Twi and English Language which is fully transcribed in English indorsed on the writ of summons by way of an attachment and particularized on the attachment with the list media platforms and publication dates and also repeated in paragraphs 9, 10, 12, 14, 15, 16, 18, 19, 20 and 22 of the Statement of Claim are defamatory.

b. The Defendant is hereby ordered, within thirty (30) days of this Judgment, to publish on three consecutive occasions, on the same platforms that he published the defamatory words, an unqualified retraction and an apology, with the same prominence as given to the issuance of the defamatory words against the plaintiff.

c. An order of perpetual injunction is hereby granted restraining the Defendant, his agents, assigns and servants from further publishing any defamatory words against the Plaintiff.

d. In assessing damages, this Court notes the dictum of His Lordship Jones Dotse JSC in the PROFESSOR E.O.ADEKOLU CASE (cited supra) quoting George Washington on November 28, 1796, who wrote as follows:

“To speak evil of anyone unless there is unequivocal proofs of their deserving it, is an injury for which there is no adequate reparation”. The Court notes further that the matter complained of were really serious in nature in which the names of highly placed people were unfortunately bandied about. This Court adjourned this suit for lengthy periods to allow for reconciliation but the Defendant failed to take advantage of it, despite having been served with the evidence to be used by the Court.

Damages is therefore assessed at One Hundred Thousand Ghana Cedis (GHC1OO,OOO).

e. Costs is assessed at Thirty Thousand Ghana Cedis (GH$30,000).

POST SCRIPT:
In his written submissions, Mr. Raphael Agyepong for the Defendant alleges that “while this case was ongoing and a date had been set out for judgment, the Plaintiff on 28th May 2020 granted an interview on a program called ‘Good Morning Ghana’ on Metro TV which was captured by Ghanaweb.com news on the same 28th May 2020 (headline – Court sets June 26 as Judgment Day for Kennedy Agyapong – Kweku Baako). According to Mr. Agyepong, the content of Plaintiff’s discussion with the host called Randy Abbey sought to prejudice the matter before this court because he claimed to know the outcome of the case herein although the court has not made any pronouncement.”

I would most respectfully decline to make a comment on the issue of whether or not the Plaintiff has made prejudicial statements on a sub judice matter since that does not form part of my record at this time.

(SGD)
AFIA SERWAH ASARE-BOTWE (MRS.)
(JUSTICE OF THE HIGH COURT)
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