HIGH COURT, ACCRA
Date: 7 DECEMBER 1973
ABBAN J
CASE REFERRED TO
Attiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 149.
NATURE OF PROCEEDINGS
CASE STATED by trial magistrate, for the opinion of the High Court as to whether witchcraft could be proved and if so the mode of proof. The facts are sufficiently set out in the headnote.
JUDGMENT OF ABBAN J
[His lordship in his ruling on the issue as to whether witchcraft could be proved and if so the mode of proof, said:] Sarbah in his book Fanti Customary Laws (3rd ed.) at p. 113 clearly states that “words imputing witchcraft” as in the present case, “are actionable and it is not necessary for the plaintiff in such a case to prove any special damage.” Danquah in Cases in Akan Law at p. xxiii agrees with Sarbah on this point and states that “it covers such serious assertions as that a person is an Odonkoba son of a slave, an Obayifo, a witch . . .”
[p.143] of [1974] 1 GLR 142
In the case under consideration, the defendant admits uttering the offensive words which imputed witchcraft to the plaintiff. The words in question are:
“Tell your sister [meaning the plaintiff] that the reason why I do not speak to her is that she is a witch and she leads a gang of witches to come and eat me up.”
The court must act with considerable caution in allowing fetish priests to testify as to the truth of such a statement. In African tradition, it is believed that witchcraft exists even though its existence has not been established by any admissible evidence. This is one of the cases where the court may find that a fact exists although there is no testimony on the subject and although no relevant document, thing or evidential fact is produced or proved.
It will be noticed that the textbooks referred to supra and in fact other textbooks on customary law, do not even attempt to give any indication as to how or as to the method a party, in the position of the defendant, can adopt to prove her allegation that the plaintiff practices witchcraft. That is, textbooks on customary law do not prescribe the method by which a witchcraft can be proved in a court of law. There are also no decided cases on this, at least, my research has not revealed any. In my considered opinion, the traditional mode or method of proving witchcraft which the defendant intends to adopt or follow has not gained any recognition in the courts of law. Furthermore, there are several other objections to such a traditional method of proof. In the first place, the evidence which the fetish priest will offer to show that the plaintiff is a witch will be nothing but hearsay and therefore inadmissible. I will like to elaborate on this.
Judicial notice may be taken of the fact that a fetish priest has a fetish or juju, and he is the spokesman of his juju or fetish. He consults his fetish or juju as an oracle and he performs his functions according to the dictates of his fetish or juju; and whatever the fetish priest will say about the plaintiff, if he is given the chance to give evidence, will be what has been communicated to him mystically by his fetish or juju. This is a clear case of hearsay. In other words, the evidence to be offered by a fetish priest will be within the province of hearsay. Hearsay evidence, as will be recalled, is proof by a witness who relates what he was told of the fact by some person, who may have perceived it himself or may have obtained his information from any source. Here no one can prove the source from which the fetish or the juju may obtain the information which will be imparted or communicated to the priest who will in turn mount the witness-box to repeat the same to the court.
Even if it is assumed that what the fetish priest will tell the court is his findings after performing certain rituals, those findings will be nothing
[p.144] of [1974] 1 GLR 142
but his own opinion, and will still be inadmissible, because the law will not recognise the performance of rituals as the proper method of investigation. When the opinion of a witness is founded upon nothing recognisable as evidence, it is worse than irrelevant. As I have said, the evidence of the fetish priest will be founded either on what his fetish or juju will tell him, or on the rituals he will perform in the traditional way. He alone is supposed to understand what his fetish or juju says, (if the fetish or juju speaks at all). Again, he alone interpretes the outcome of the rituals he performs.
In a situation like this, what assurance or guarantee is there that the fetish priest will not misinterpret his findings. Surely, his evidence is not only capable of raising many collateral issues but is also likely to be manufactured with ease. It will be seen therefore that the evidence of the priest will be liable to conjecture and this is the more reason why it ought to be excluded.
It follows that the traditional mode intended to be adopted by the fetish priest to prove that the plaintiff is a witch should not be countenanced. For, as I have said before, whatever interpretation the fetish priest will put on his findings will be inadmissible. In the circumstances, the fetish priest cannot be a competent witness. A witness is competent to give evidence if his testimony is admissible.
With regard to apportionment of liability, this does not arise at all. The defendant must be made liable for the full extent of damage caused to the plaintiff s reputation. However in quantifying the damages in cases of this kind, the court must have regard to the awards made in decided cases, such as Attiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 149.
The case can now be disposed of in terms as stated above.
DECISION
Evidence of fetish priest inadmissible.
Order accordingly.
S. Y. B.-B.
