AFFUL vs. OKYERE AND ANOTHER [1997-98] 1 GLR 730

CASES REFERRED TO

(1) Kru v Saoud Bros & Sons [1975] 1 GLR 46, CA.

(2) Kuaku v Forson [1962] 1 GLR 139.

(3) Commissioner of Police v Kwashie (1953) 14 WACA 319.

(4) Republic v Munkaila [1996-97] GLR 445, SC.

(5) Mamudu Wangara v Gyato Wangara [1982-83] GLR 639, CA.

(6) Wankyiwaa v Wereduwaa [1963] 1 GLR 323.

[p.733] of [1997-98] 1 GLR 730 (7) Popvic v Derks (1961) VR 413.

(8) Edufie v Panin [1964] GLR 317.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff from the judgment of the High Court, Cape-Coast dismissing her action for damages for defamation against the defendants for calling her a witch. The facts are sufficiently set out in the judgment of Essilfie-Bondzie JA.

COUNSEL

Ebow Quashie for the plaintiff-appellant.

James Ahenkorah for the defendant-respondents.

JUDGMENT OF SAPONG JA.

The plaintiff issued a writ claiming ¢10 million from the defendants jointly and severally for defaming her. The case was gone into and the trial court dismissed the claim of the plaintiff. Incidentally the defendants also counterclaimed for ¢10 million against the plaintiff for defaming them. This counterclaim was also dismissed.

Against this judgment the plaintiff has appealed on the following grounds:

“(a) The learned judge misapplied the law of defamation.

(b) The learned judge failed adequately or at all to consider the case for the plaintiff.

(c) The judgment is against the weight of the evidence.

(d) The learned judge erroneously interpreted the evidence on record.”

Added to these are two additional grounds, namely:

“(1) The trial judge failed to appreciate the scope of the plaintiffs burden in her claim for damages.

(2) The trial judge applied the wrong standard of proof in assessing the plaintiffs case.”

I am not unmindful that an appeal is a rehearing. In the amended statement of claim filed on 16 December 1992 the plaintiff avers that the first defendant called her “a witch” and also the second defendant on 16 September 1991 beat an old pan around the neighbourhood of the parties’ residence to the hearing

[p.734] of [1997-98] 1 GLR 730 of several persons stating, inter alia, that “Sister Mama’s mother is a witch.”

I will like to take the averment alleged to have been made by the second defendant imputing witchcraft to the plaintiff. The second defendant admits that Sister Mama’s mother is the plaintiff. Did the second defendant say the plaintiff was a witch? There is no sufficient testimony to that effect. The plaintiff did not hear her say it. According to the plaintiff it was her son, the second plaintiff witness, who told her of it. And according to the second plaintiff witness there were some people around at that time. In my candid opinion, this averment of the second plaintiff witness should have been corroborated, failing that I am doubtful that the second defendant did say what is alleged to have been said by her.

In respect of the first defendant calling the plaintiff a witch, the first plaintiff witness corroborates it. Is calling a person “a witch” actionable in defamation? Yes, I do say so. The plaintiff is an Akan, likewise the first defendant. What then is their personal law? It is none other than Akan customary law. And in Akan customary law, calling somebody a witch is actionable per se. One does not have to show that he has suffered any damage before suing. This is what actionable per se means in situations such as this. The trial judge determined the case before him on principles of common law. With all due respect to the trial judge, it is customary law that applies and not common law.

Mr. Ahenkorah for the respondent concedes that in customary law calling somebody a witch is actionable per se. That being so the action brought by the plaintiff against the first defendant is proper in law. The first defendant denies even saying that the plaintiff is a witch. In this regard let us consider the relevant portions of the amended statement of claim and the amended statement of defence. Before then I have to remind myself of Order 19 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) on pleading generally. This rule says:

“14. Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted,

[p.735] of [1997-98] 1 GLR 730 except as against an infant, lunatic, or person of unsound mind not so fund by inquisition.”

(The emphasis is mine.)

Paragraph (5) of the amended statement of claim says, inter alia, that “you Aunte Mercy you are a witch.” Paragraph (6)(a) says: “The first defendant in furtherance of his defamatory conduct repeated the words referred to in paragraph (5) supra to a minister of the gospel.” In paragraph (13) of the amended statement of defence the defendants only say they deny the averments in paragraphs (5), (6), (7), (8) and (9) of the statement of claim. Nowhere in this amended statement of defence did the defendants specifically deny the averment contained in paragraph 6(a) of the amended statement of claim quoted above. I therefore hold the view that the first defendant admits calling the plaintiff a witch.

It is on record that the plaintiff is a senior technical nutrition officer with the Ministry of Health stationed at Agona Swedru. She contended that the number of nursing mothers calling on her at her station has reduced considerably thereby affecting her work as a result of her being called a witch. I do not personally see how her work with the Ministry of Health has been affected. Whether many people call on her or not her salary is not affected. It is assured. If by saying this is she expects to enhance the quantum of damages to be awarded her, I do say she has so failed.

Mr Ahenkorah says that in slander, one does not claim general damages but only special damages actually suffered. And further that the words purported to have been uttered by the first defendant were done in the exchange of insults during domestic quarrels. And so the action by the plaintiff is not maintainable. I beg to disagree in view of the deductions made above.

To sum up, I do say without any vestige of doubt that the defendant did say the plaintiff is a witch. They all being Akans, it is Akan customary law that operates. So the action by the plaintiff is actionable per se and there is no need for the plaintiff to show that she suffered damage as a result.

I, therefore, do allow the appeal and give judgment for the plaintiff against the first defendant only.

[p.736] of [1997-98] 1 GLR 730

JUDGMENT OF ESSILFIE-BONDZIE JA.

The appeal is against the decision of the High Court, Cape Coast dated 26 July 1994. The relief claimed by the plaintiff-appellant (hereinafter referred to as the plaintiff) against the defendant-respondents (hereinafter called the first and second defendants) jointly and severally was for “¢10 million for deformation occasioned by their conduct on 13 and 16 September 1991 at Manhodwe in Agona Swedru.”

The brief facts of the case is that the plaintiff is a senior technical nutrition officer stationed at Agona Swedru. The evidence at the court below shows that the parties live in the same house at Agona Swedru as co-tenants. The second defendant is the daughter of the first defendant. On 13 September 1991 at about 7.00 pm some of the children and tenants in the house gathered in front of the first defendant’s room to view programmes on a television set which the first defendant had placed outside his room for any of the tenants who might be interested. The case of the plaintiff was that whilst in her room she heard some noise outside, she came out of her room and saw her grandson engaged in a struggle over a chair with a daughter of the first defendant. The two children were fighting over the chair. She separated the children and when she was told that the chair over which the children were fighting belonged to the first defendant, she apologised and begged the first defendant to drop the matter since it involved only children. The evidence of the plaintiff was that the first defendant reacted to her humble apology by uttering that he had already had a bone to pick with the plaintiff and he had been waiting for an opportunity to tell the plaintiff his piece of mind. According to the plaintiff, the first defendant then told her that she is a witch and that she had through witchcraft, caused the death of two of his children. Those statements were allegedly uttered in the presence and to the hearing of co-tenants and other people in the house. Her testimony was that the first defendant spoke and made the said statements in the Fanti language in words to the effect that the plaintiff had killed his (the first defendant’s) two children and that she was a witch. The plaintiff complained that as a result of those defamatory words uttered by the first defendant, her self-esteem and reputation among the people she works with have been lowered. She complained that as a result of these utterances she [p.737] of [1997-98] 1 GLR 730 has lost patronage as senior technical officer of nutrition at the Agona Swedru Hospital.

Regarding the suit against the second defendant, the plaintiff testified that on 16 September 1991 the former paraded the area of their house beating a pan and saying that she (the plaintiff) is a witch. That as a result of the statement made by the first defendant and the second defendant she did not feel fine in the house and at her work place. She has been suffering anguish and pain in her heart. She denied saying that the first defendant is a wizard.

The defendants denied having uttered the defamatory matter attributed to them. The evidence of the first defendant was about the fight between the children, the plaintiff and her daughter called Yvonne went to him and apologised for the bad conduct of her grand child. The first defendant’s evidence was that Yvonne, the daughter of the plaintiff, subsequently made some insulting remarks against him. This led to some altercation between the plaintiff, her daughter and the first defendant. The first defendant said that the plaintiff described him as a beast adding that God had a reason in creating him the way He did—ie causing him to be physically deformed. The plaintiff was also alleged to have called the first defendant a silly man. The plaintiff was also alleged to have said that men could also be wizards. The defendants contended that the statement made by the plaintiff and her daughter are defamatory of him; hence they are also counterclaiming for ¢10 million as damages.

After hearing evidence the learned trial judge dismissed the action of the plaintiff against both defendants and dismissed the counterclaim of the first defendant. The plaintiff has appealed to this court on the following grounds:

“(a) The learned judge misapplied the law of defamation.

(b) The learned judge failed to adequately or at all to consider the case for plaintiff.

(c) The judgment is against the weight of the evidence.

(d) The learned judge erroneously interpreted the evidence on the record.

(e) The learned judge confused the common law principles on deformation[sic](1) with that of the customary law.”

[p.738] of [1997-98] 1 GLR 730

On the 19 February 1998 the plaintiff filed additional grounds of appeal, namely;

“(1) The trial judge failed to appreciate the scope of the plaintiff’s burden in her claim for damages.

(2) The trial judge applied the wrong standard of proof in assessing the plaintiff’s case.”

Counsel was on application granted permission to argue the additional grounds of appeal. In his arguments before the court, learned counsel for the plaintiff relied mainly on grounds (c), (d) and (e) of the original and (2) of the additional grounds of appeal.

Learned counsel submitted that the defamatory words uttered by the first defendant were unprovoked. He referred to the plaintiff’s statement of claim and said that the plaintiff was in the process of apologising to the first defendant for the conduct of her grandchild when the first defendant uttered the defamatory words complained of. He added that the fact that the plaintiff apologised on behalf of her granddaughter for her conduct was corroborated by the first defendant’s statement of defence.

Counsel further contended that the evidence of the plaintiff regarding the utterance of the defamatory matter was corroborated by the evidence of the first plaintiff witness. He submitted that the first plaintiff witness was an independent witness who consented to give evidence when the co-tenants in the house failed to do so. That the trial judge had no basis for discrediting the evidence of the first plaintiff witness, especially when he could not say that he did not believe his evidence. Counsel maintained that proof of an issue does not depend on the number of witnesses called. It depended on the credibility of the witness. He cited the case of Klu v Saoud Bros & Sons [1975] 1 GLR 46 at 48, CA and submitted that the trial judge erred in rejecting the evidence of the first plaintiff witness because it supported the case of the plaintiff. That there is no principle of law which empowers a court to reject a witness’s evidence because it was favourable to the plaintiff.

Counsel further argued that in applying common law principles to the case, the trial judge erred. He said that the reliance on the case of Kwaku v Forson [1962] 1 GLR 139 was erroneous because that case was decided on the basis of the common law.

[p.739] of [1997-98] 1 GLR 730

According to learned counsel, the defamatory matter complained of were uttered in Akan. And since the parties are Akans, the law applicable was the customary law. Counsel finally urged the court to set aside the judgment of the trial court and give judgment in favour of the plaintiff on her claim.

Mr. Ahenkorah, learned counsel for the defendants, urged the court to consider the overall view of the case, as if it is being tried by this court. This is so, as all appeals are by way of rehearing. Counsel submitted that the action was not maintainable because the plaintiff failed to allege and prove special damages. In his statement of claim, there was no plea of special damages and since the action taken by the plaintiff cannot be maintained unless the plaintiff can allege and prove special damage, the whole claim is not maintainable in law.

Another point urged on the court by counsel for the defendants was that the words complained of were uttered under circumstances which would not carry any defamatory meaning. He emphasised that the words were uttered in a house and in the heat of angry exchanges and therefore not actionable. Again, since the incident took place in a house where tenants live, even if the plaintiff suffered any loss or damage, the damage was too remote. He contended that there was no cause of action. The appeal should therefore be dismissed.

There is evidence from the plaintiff that she approached the first defendant in order to apologise for the conduct of her granddaughter and while she was in the process of doing so, the first defendant without any provocation said of the plaintiff in the Fanti language: “Wo ho asem wo metsir mu dadaw . . . Owu Aunte Mercy, eye annyen, eku memba ebien.” These words mean: “I have something against you … You Aunte Mercy, you are a witch … you have killed my two children.”

The fact that the plaintiff approached the first defendant in an apologetic manner was corroborated by the first defendant himself in paragraph (2) of the statement of defence. The plaintiff’s evidence that the first defendant uttered the words complained of was denied by the first defendant but it was corroborated by Ebenezer Addison, the first plaintiff witness. Ebenezer Addison testified that on 13 September at about 7.00 pm he was in the house of the plaintiff. There was a television set standing outside

[p.740] of [1997-98] 1 GLR 730 in front of the room of the first defendant in the yard. Children were viewing it. He later saw the first defendant’s child struggling over a chair with a grandchild of the plaintiff. He said that he saw the daughter of the plaintiff who took away her daughter from the scene. In the process of her taking her daughter away an argument ensued between her and the first defendant. The plaintiff who was then in her room came out and attempted to settle the matter. The first plaintiff witness continued her evidence as follows:

“At that stage the first defendant addressed the plaintiff saying, that he had a case against the plaintiff. The first defendant stated further that the plaintiff is a witch and that she had killed two of his children. The plaintiff asked three times whether the first defendant was referring to her by that statement and for three times the first defendant replied in the affirmative that his allegation was in reference to the plaintiff. It was after that, that I left the place.”

It is noticeable from the judgment of the trial judge that he rejected the first plaintiff witness’s evidence simply because he was a stranger and not an inmate of the house where the incident took place. He did not say that he did not believe him or that the first plaintiff witness told a lie. His issue with the first plaintiff witness was that he was an only witness called by the plaintiff. And that the latter should have called one of the tenants in the house or the plaintiff’s own daughter who was also alleged to be present at the time of the incident. He further attacked the first plaintiff witness’s evidence as showing a total bias in favour of the plaintiff. He made the following finding in his judgment:

“The first plaintiff witness being a total stranger does not appear to be the most suitable person to testify for the plaintiff as the only witness of all that happened, when the evidence clearly shows that there were more than at least fifteen other co-tenants present and who might give more detailed and factual account of all that happened.”

With due deference to the trial judge, I do not share the view he took of the first plaintiff witness’s testimony. The settled principle is that there is no rule of law or practice which required

[p.741] of [1997-98] 1 GLR 730 corroboration of any evidence. The test in every case is whether the evidence though given by a single witness was entitled to credit. The courts could act on the uncorroborated evidence of a single witness since judicial decisions depend upon intelligence and credit not the multiplicity of witnesses produced at the trial: see Kru v Saoud Bros & Sons (supra) and Commissioner of Police v Kwashie (1953) 14 WACA. 319. The above rule of law has now found support in our Evidence Decree, 1975 (NRCD 323). Section 7(3) of NRCD 323 states: “(3) Unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not necessary to sustain any finding of fact or any verdict.” It is evident from section 7(3) of NRCD 323 that the law precludes any non-statutory mandatory requirement that evidence must be corroborated before it can be acted upon. The law was given the blessing of the Supreme Court in the recent case of the Republic v Munkaila [1996-97] SCGLR 445 where it was held that: “It is necessary to note that corroboration is not a general requirement of law in the absence of which the decision of the trial tribunal of fact will usually be reversed.”

Relying on the authorities cited above, I hold that the trial judge erred when he failed to consider the evidence of the first plaintiff witness as to whether he believed it or not. He should not have rejected the evidence of the first plaintiff witness merely because he was a stranger. It is true that some co-tenants including the daughter of the plaintiff were present at the time of the incident, but it was not necessary to call all of them as witnesses. It was within her right to call the first plaintiff witness, whom I consider independent, to give evidence in her support. Appeals are by way of rehearing: see Mamudu Wangara v Gyato Wangara [1982-83] GLR 639 at 610, CA and that meant having a look at and taking into consideration all the relevant evidence on the record. I am satisfied that the first plaintiff witness’s evidence amply corroborated the evidence of the plaintiff. I further find from the evidence that the plaintiff was able to prove that on 13 September 1991 the first defendant uttered without any provocation from the plaintiff, the words complained of. That these words were uttered in the presence of co-tenants and the first plaintiff witness. These were not words hurled against the plaintiff in the heat of a quarrel.

[p.742] of [1997-98] 1 GLR 730

Learned counsel for the defendants has submitted that the action was not maintainable because the plaintiff failed to allege and prove special damage. He said that in the plaintiff’s statement of claim there was no plea of special damage and since the action taken by the plaintiff cannot be sustained or maintained unless the plaintiff can allege and prove special damage, the whole action is misconceived. Relying on the common law, learned counsel argued that since the defamatory words in this case do not fall under one of the cases which are actionable without proof of special damages, that should compel the court to dismiss the action as not maintainable.

It is true that to call somebody a witch under the common law is not actionable without proof of special damage. But a look at the form and substance of the proceedings reveal that the action was taken under the customary law of Ghana and that the plaintiff intended the action to be governed by the customary personal law. This is so, because the parties are Akans, they gave their evidence in Fante and the words complained of are in the Fante language. It is accepted that defamation under customary law is wider than under common law. At common law, special damage must be alleged and proved, except in the case in which slander is actionable without proof of special damage. In Wankyiwaa v: Wereduwaa [1963] 1 GLR 332 a judgment of the High Court, Kumasi, Apaloo J (as he then was) held in accordance with established customary principles, that mere vituperation is actionable under customary law. Sarbah in his Fanti Customary Law (3rd ed) at p 113 indicated how expensive defamation is under customary law by saying of customary defamation: “Words imputing witchcraft, adultery, immoral conduct, crime and all words which sound to the disreputation of a person of whom they are spoken, are actionable.” Dr. Danquah in the introduction to his Cases in Akan Law was more specific at p XXIII:

“Thus although under the Common law it is only in very exceptional cases that a plaintiff can succeed in action for slander, the customary law gives full recognition to all claims for damages for insulting words or language used verbally against any person. A suit of this nature (slander) is termed in these judgments ‘action for defamation of

[p.743] of [1997-98] 1 GLR 730 character’ and it covers such serious assertions as that a person is an Odonkoba, son of a slave; an abayifo, a witch; an Odutufo, one who has killed another by sympathetic magic, a poisoner down to such common place assertions as that another is a fool, or a beast such as an ass or silly idiot.”

(The emphasessic(2) is mine.)

From these authorities, I find that under our customary law, to call somebody a witch is defamatory which is actionable per se without proof of damage. I am satisfied that the first defendant was guilty of defamation of character under our customary law when he uttered of the plaintiff words to “You Auntie Mercy, you are a witch . . . You have killed my two children . . .” The trial judge under the circumstances had no basis in dismissing the plaintiff’s case.

Regarding the second defendant, there is evidence that on 16 September 1991 she beat an old pan around the neighbourhood of the parties’ residence to the hearing of several persons stating:

“Mama ne Maame bayifo, Sister Mama ne Maame bayifo.” Meaning: “Sister Mama’s mother is a witch.” This allegation was denied by the second defendant. She contended that on 16 September 1991, the day of the alleged incident, she had been arrested and was in police custody. But the third plaintiff witness, Inspector Addo’s evidence and exhibit A, the station diary showed that the second defendant was arrested on 7[sic](3) September 1991 and not 16 September 1991. Concerning the second defendant’s evidence claiming to be in police cells the trial judge made the following finding:

“The second defendant’s defence is centered in alibi. She contends that on the date she was alleged to have uttered the slanderous words against the plaintiff, she was in police cells. Her allegation is disproved by evidence before the court. The record tendered by the police, exhibit A, which is the station diary clearly shows she was arrested on 17 September 1991 and not on 16 September 1991.”

The question is why did the second defendant lie to the court? Why did she insist that on the 16 September 1991, the date she

[p.744] of [1997-98] 1 GLR 730 was alleged to have uttered the defamatory words she was in police cells? The law is that “recourse, to falsehood leads fairly to an inference of guilt.” In Popvic v Derks (1961) VR 413 at 422 Hall J said: “Matters which otherwise might be ambiguous or colourless are rendered suspicious and corroborative by reason of the false denial.” It is my view that the second defendant told the lie because she was conscious that if she told the truth she would lose. In the light of the authority cited above, I hold that the falsehood told by the second defendant corroborated the evidence of the second plaintiff witness that on the 16 September 1991 the second defendant uttered the slanderous words complained of. I think the trial judge erred in rejecting the evidence of the second plaintiff witness simply because the plaintiff failed to call another witness to corroborate the evidence of the second plaintiff witness. He should have considered whether or not the second plaintiff witness’s evidence was credible. I find from the evidence that on 16 September 1991 the second defendant also defamed the plaintiff.

Apart from the fact that the slanderous words complained of by the plaintiff are actionable per se, the plaintiff gave evidence that she has suffered loss and damage. The evidence shows that she is a nutrition officer in the Ministry of Health, Agona Swedru. Her speciality is advising mothers on the nutrition of their infant children. Her work involves weighing of the children when they are brought to the clinic. She complained that ever since those defamatory words were uttered against her, her patronage by the mothers and their children have drastically reduced.

In Edufie v Panin [1964] GLR 317 Sowah J (as he then was) demonstrating why an aggrieved person is entitled to damages under our customary law of defamation held, as stated in the headnote, that:

“(1) the principle that at common law an action for slander lies at the instance of the person slandered is well established, but the customary remedy of recanting is obsolete. However the principle being established, can be developed by judicial process and accordingly the courts can make an award of adequate damages ….

(2) The quantum of damages awardable should have relation to the seriousness or otherwise of the injury and to

[p.745] of [1997-98] 1 GLR 730 the extent of the damage done. In this connection there is no difference between the damages awardable in a common law action for slander and those awardable to customary law. In all cases of assessment of damages the question should be left to the discretion or good sense of the court after proof of damage.”

In this case, it is plain from the evidence adduced that the plaintiff has suffered injury to her reputation and calling. The evidence further revealed that the parties live in a community where the inhabitants know each other. As a nutrition officer she must be well-known. Now to accuse her of being a witch who had killed two children is in my view very serious. In order to preserve peace and tranquility in the area scandalous utterances should be discouraged. For these reasons and those canvassed above, I allow the appeal and award ¢2 million as damages against the defendants and in favour of the plaintiff.

JUDGMENT OF FARKYE J.

I agree with the judgment of my brother Essilfie-Bondzie JA. I will therefore allow this appeal. DECISION Appeal allowed.

SA.

Endnotes

1 (Popup – Footnote) [sic] same in document 2 (Popup – Footnote) sic same in original. 3 (Popup – Footnote) [sic] same in original.