AHEVI vs. AKOTO IV [1993-94] 1 GLR 512

CASES REFERRED TO:

(1) Musa v Limo-Wulana [1975] 2 GLR 290, CA.

(2) Atta v Amoasi [1976] 2 GLR 201, CA.

(3) Denyo v Dzakpasu, High Court, Ho, 21 May 1990, unreported.

(4) Manu v Kuma [1963] 1 GLR 464, SC.

(5) Tufuor v Beng [1963] 1 GLR 21.

(6) Tournier v National Provincial and Union Bank of England [1924] 1 KB 461; 93 LJKB 449; 130 LT 682, CA.

(7) Mabogunje v Inspector-General of Police (1953) 14 WACA 350.

(8) R v Palamba s/o Fundikla (1952) 14 EACA 96.

(9) Hammond v Odoi [1982-83] GLR 1215, SC.

(10) Abaye v Akatia [1982-83] GLR 1072.

(11) Danah v Kokomba, High Court, Tamale, 28 February 1987, unreported.

(12) Attah v Esson [1976] 1 GLR 128, CA.

(13) Akorninga v Akawagre [1987-88] 2 GLR 562, CA.

(14) Debrah v The Republic [1991] 2 GLR 517.

(15) Scott v Sampson (1882) 8 QBD 491.

(16) Plato Films Ltd v Speidel [1961] AC 1090; [1961] 2 WLR 470; [1961] 1 All ER 876, HL; affirming sub nom Speidel v Plato Films Ltd. Same v Unity Theatre Society Ltd [1960] 3 WLR 391; [1960] 2 All ER 521; 104 SJ 602, CA.

(17) Beddoomassoo v Bossoo (1844) Sar FCL 247.

(18) R v Essel (1877) Sar FCL 12.

(19) R v Adjagbi (1913) 2 Ren 745.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a citizen of Dodome-Awiasu against the defendants, the chief of Awiasu and the regent of the Dodome Traditional Area, for, inter alia, damages for defamation, false imprisonment and [p.516] of [1993-94] 1 GLR 512 malicious prosecution arising out of an accusation made by a citizen of Awiasu against the plaintiff that he was killing and harming some people in the town with juju and fetish and the resultant trial by ordeal undertaken by the plaintiff to vindicate his name. The facts are fully set out in the judgment.

COUNSEL

Victor Dotse (with him Miss P Dennis) for the plaintiff.

Mensa-Etsi for the defendants.

JUDGMENT OF ACQUAH J.

This is an interesting case which deals with beliefs and practices in juju, fetish and trial by ordeal of the people of the Dodome Traditional Area in the Volta Region.

One Vincentia Dogoe, a fairly elderly fetish priestess of Dodome Awiasu, died in February 1989. Soon after her death, an eighteen-year old mother of two children called Esi Bisi rushed to the chief and behaving as if possessed by some spirit said that she had something important to tell the chief and his elders, and that the plaintiff and one Ahele Kwamla must be called to listen to her message. When the plaintiff and this Ahele Kwamla came, Esi Bisi said that it was Ahele Kwamla who killed Vincentia Dogoe by juju, and that the plaintiff too was using juju to render ineffective the hospital mortuary where the dead body of Vincentia Dogoe had been deposited, so that the deceased would not have a decent burial.

The chief felt that the allegations of Esi Bisi were too serious for his private consumption and so moved his seat from his palace to the public arena for the entire community of Dodome-Awiasu to hear of them. At the public arena Esi Bisi repeated her allegations. The plaintiff and Ahele Kwamla were, according to the custom in the area, thus to respond to the allegations. If they admitted them, customary sanctions would be imposed; if they denied them, they had to undergo a trial by ordeal prove their innocence.

Ahele Kwamla admitted that he killed Vincentia Dogoe by juju. He was then punished by ordering him to provide one ram, four bottles of schnapps and ¢60,000. He left to find these items and it is alleged that he had since not returned to the community. The plaintiff, on the other hand, denied the accusations and was thus obliged to prove his innocence.

The chief’s linguist, a representative of the youth and relatives of the plaintiff accompanied him to a fetish priest at Ada Junction where he underwent a trial by ordeal. He was declared innocent at the trial and he, returned with the delegation to report the result to the chief and people of Awiasu who had gathered waiting to hear from them. The fetish priest at Ada Junction gave the plaintiff some herbal preparations to cleanse

[p.517] of [1993-94] 1 GLR 512 himself from further accusations.

On their return, the chief’s linguist in his report forgot to disclose that the plaintiff was given some herbal preparations. The evidence shows that the gathering were not happy with the result of the trial. And Esi Bisi in rejecting the result of the ordeal, went on to make further accusations against the plaintiff by saying that the plaintiff was responsible for the death of his, the plaintiff’s, own child called Ruby Ahevi and that of Benedicta Atsri, the plaintiff’s sister in-law. She further said that the plaintiff was gradually causing by means of juju the death of his, the plaintiff’s, own child called Doris. According to the plaintiff, he referred these later accusations to the defendants herein but they did nothing about it. And so he summoned Esi Bisi before Togbe Adzimah’s fetish cult at Klikor but the second defendant prevented Esi Bisi from appearing before that cult, and rather offered to go into that complaint.

On 28 May 1989 therefore the second defendant came down from his village to Awiasu and ordered a gong-gong to be beaten for the entire people to meet on the dispute between Esi Bisi and the plaintiff. The plaintiff was sent for but he refused to respond to the call and rather sent word that he had no case with Esi Bisi in respect of which the second defendant and his chiefs and people could go into.

It is the case of the plaintiff that on that day, ie 28 May 1989, the defendants uttered and published the very words Esi Bisi uttered against him on his return from Ada Junction and which words are set out in paragraph (9) of his statement of claim. Thereafter, according to the plaintiff, the defendants published a second group of words at the same meeting substantially ostracising him from the community and portraying him as a murderer and a jujuman who is unfit to live in their society. He sets out the said words in paragraph (10) of his statement of claim. Contending therefore that the two groups of words in paragraphs (9) and (10) are defamatory and further that the whole process of going through the trial by ordeal constituted false imprisonment and malicious prosecution, he instituted this action claiming from the defendants jointly and severally as per his amended writ of summons:

“(1) ¢10 million damages for defamation, to wit slander.

(2) ¢48,000 being expenses which the defendants forced the plaintiff to incur.

(3) An order directing the defendants to withdraw all the defamatory words spoken against the plaintiff by causing a gong-gong to be beaten in all the Dodome towns.

(4) An order of perpetual injunction restraining the defendants,

[p.518] of [1993-94] 1 GLR 512 their agents, servants or subjects from ever uttering the said words complained of.

(5) An order declaring the purported exparte arbitration held by the defendants between the plaintiff and Esi Bisi as void and of no effect since the plaintiff was not heard thus breaching the rules of natural justice.

(6) ¢5 million damages for false imprisonment and malicious prosecution against the first defendant only.”

The first defendant is the chief of Dodome-Awiasu, while the second defendant is the regent to the paramount chief of Dodome and is at Dodome Avexa. The defendants deny uttering and publishing the words complained of. They further plead that the community did not accept result of the trial by ordeal because of the number of exemptions claimed by the plaintiff before the trial. They allege that the plaintiff had by habit of putting people into fetish portrayed himself as unfit to live in their society. The issues agreed on for trial at the summons for directions are:

“(1) Whether or not the words spoken against the plaintiff in paragraphs (9) and (10) are defamatory of the plaintiff.

(2) Whether or not the conduct of the defendants against the plaintiff generally in the case is wrongful and unlawful.

(3) Whether or not the defendants are justified in issuing the directives stated in paragraph (10) of the statement of claim against the plaintiff.

(4) Whether or not the plaintiff is entitled to the relief he claims as per the writ of summons and statement of claim.

(5) Any other issues not hereinbefore mentioned.”

At the trial the plaintiff was supported by three witnesses including the fetish priest who conducted the trial by ordeal at Ada Junction. In his evidence, the plaintiff further disclosed that sometime after the trial by ordeal, the second defendant came down to Awiasu in connection with a complaint by the youth on the herbal preparations given to him at the trial. He said at that meeting at which the first defendant, the youth and others were present, he admitted invoking fetish on someone and as a result he paid a fine imposed on him by the second defendant. The defendants, on the other hand, were supported by two witnesses who sought to show that the ban imposed on the plaintiff was by the youth and not the defendants. The youth leader testified as the first defendant witness and stated, inter alia, that the youth imposed the ban on the plaintiff for his refusal to disclose the identity of the person he had put into fetish. He said the

[p.519] of [1993-94] 1 GLR 512 youth’s decision was passed through the second defendant, Hilarious Tse, a teacher, who also testified that in 1983 he bought ¢12,000 worth of cassava from the plaintiff. He was unable to settle the bill in time and so the plaintiff took him to a fetish at Aveme Dra where he was asked to pay the plaintiff. And in 1989 he paid him.

In his address, Mr Mensa-Etsi submits that there is no evidence from any of the plaintiff’s witnesses that the defendants did utter the words set out in paragraph (9) of the statement of claim. On the words in paragraph (10), counsel invited the court to reject the evidence of the plaintiff’s witnesses since as relatives, they are likely to manufacture favourable evidence for the plaintiff. He submitted that the plaintiff ought to have called some of the independent persons present at the occasion. Counsel further argued that the claim for malicious prosecution is misdirected since there was no criminal charge nor prosecution against the plaintiff. Relying therefore on Musa v Limo-Wulama [1975] 2 GLR 290, CA he invited the court to dismiss that claim. On false imprisonment, counsel submitted that the first defendant at no time restrained the liberty of the plaintiff, and that the permission sought by the plaintiff before going home was natural and in accordance with custom. Citing Atta v Amoasi [1976] 2 GLR 201, CA, he prayed that this claim be likewise dismissed. On the issue whether the defendants’ conduct was generally wrongful and unlawful, counsel submitted that once the plaintiff is seeking specific reliefs the general conduct of the defendants is immaterial. At any rate there was nothing unlawful or wrongful about the defendants’ conduct which in the circumstances and having regard to the fury of the youth, was necessary to save the plaintiff himself.

In reply, Mr Dotse argued that the words in paragraph (10) were highly defamatory as admitted by the first defendant himself. He said the words admitted by the first defendant were clearly said of the plaintiff and that the plaintiff is feeling the effect of such words. Counsel said that from their pleadings and the conduct of their defence the defendants have not relented and this calls for aggravated damages. He argued that this being an action in slander under customary law, the plaintiff needs not prove damage, although in the instant case the plaintiff had succeeded in establishing substantial damage arising from the words uttered in paragraph (10). Counsel relied in particular on the case of Denyo v Dzakpasu, High Court, Ho, 21 May 1990, unreported; Manu v Kuma [1963] 1 GLR 464, SC and Tufuor v Beng [1963] 1 GLR 21. Counsel further submitted that the plaintiff is entitled to the ¢48,000 which he was forced to spend at the trial by ordeal.

On the fifth relief which seeks to set aside the proceedings of 28 May

[p.520] of [1993-94] 1 GLR 512

1989 on the grounds that they were a nullity, counsel indicated that he had abandoned it. He submitted that the plaintiff is entitled to damages false imprisonment and malicious prosecution. The false imprisonment began as soon as the first defendant referred Esi Bisi’s allegation to the arena and from there refused to allow the plaintiff to leave till he went through the trial by ordeal. Counsel pointed out that the first defendant said that his conduct was in accordance with the custom of that area. But this is not a reasonable custom in the present day circumstances. Furthermore, the said custom was not proved. Hence the first defendant cannot escape the consequences of his falsely imprisoning the plaintiff.

On the plaintiff’s claim for malicious prosecution, counsel contended that the evidence of the plaintiff and the first plaintiff witness clearly establish that it was the first defendant who forced the plaintiff to undergo the trial by ordeal. Hence the first defendant prosecuted the plaintiff and he is therefore liable. Counsel argued that a trial by ordeal is illegal once the plaintiff has been exonerated by the said trial he is entitled reliefs.

Now the basis of the plaintiff’s claim for slander is that the defendants published the words set out in paragraphs (9) and (10) of the statement of claim. And for publishing the said words which he contends are defamatory of him, he seeks ¢10 million damages, an order directing them to retract the said words, and perpetual injunction to restrain them from ever uttering the words. The defendants deny publishing those words. Thus before determining whether the words are defamatory or not, I have first to find out whether the defendants published the said words.

According to paragraph (9) of his statement of claim, the defendants purporting to sit in arbitration on the dispute between the plaintiff and Esi Bisi uttered in the presence of a large crowd the following words in Ewe: “Clemence ewu via Ruby Ahevi kple dzo. Ega wu Benedicta Atsri sinye foa sro ha. Mloeba la egale via Doris sile Lome ha wum kple dzo.” Which words are alleged to mean in English:

“It is Clemence who caused the death of his child, Ruby Ahevi, by means of juju. He is also responsible for the death of his senior brother’s wife Benedicta Atsri, and finally, he is again causing the death of his own child by name Doris who lives in Lome.”

These words are alleged in paragraph (9) of the statement of claim to have been uttered by Esi Bisi on 26 February 1989 in the presence of the plaintiff himself.

However, in his evidence on the events of 28 May 1989 the plaintiff testified that when the second defendant caused the entire townsfolk

[p.521] of [1993-94] 1 GLR 512 including their chiefs, youth and everybody to a meeting, he the plaintiff was invited but he refused to attend to the call. It was later on that one Vincent Vukey informed him that the defendants had made certain pronouncements warning the entire community not to have any dealings with him, the plaintiff. Neither the plaintiff nor any of his three witnesses testified that the defendants published the words pleaded in paragraph (9) of his statement of claim. Indeed, when the plaintiff was specifically cross-examined on the allegations in paragraph (9) dealing with killing people by juju, the plaintiff emphatically stated that the defendants had never accused him of any such conduct. He was cross-examined as follows:

“Q In fact you did not hear either the first or second defendant accusing you of making any juju to kill anybody?

A I was not saying that Togbe Akoto and the second defendant were accusing me of using juju to kill anybody.”

Such a clear, answer from the plaintiff completely dismisses his claim based on paragraph (9). On paragraph (10), the plaintiff alleges that on the same day, ie 28 May 1989 the defendants pronounced him liable and published the following words in his absence:

“(i) Dukomevia deke mekpo mo agafonu de Clemence, esroa kple’ viawo o.

(ii) Ameadeke fe la maga gede efe afeme o eye yea ha to maga gede ameadeke ha fe afeme o.

(iii) Clemence, sroawo kple via wo megafle nu le ameadeke si o.

(iv) Ameadeke ha megafle nu le wosi o.

(v) Mega nlo Dodome nyigba adeke me o.

(vi) Ne ameade do avelifo kpli la woayi ado lifo me be amea xo eto gome.

(vii) Ameadeke mega gogowo le wofe nya dzodzor deke me o nene make nye eyaha.

(viii) Ne amea de dufe le enu la neva xe fe la ne to yi Adolph dzi le Avexa.

(ix) Wokple sroa mega de du dome o eye womaga xe du fea deke ha o.

(x) Nenye be eku alo sroawo alo viawo dometoa de ku la woma di de Dodome nyigba deke me o.” The above words are alleged to mean in English:

“(i) No citizen of Dodome shall talk to the plaintiff, his wife and

[p.522] of [1993-94] 1 GLR 512 children (ii) Nobody’s domestic animal shall enter the house of the plaintiff and similarly none of the plaintiff’s shall enter any other person’s house.

(iii) The plaintiff, his wife and children shall not buy from anybody in Dodome.

(iv) Nobody shall also buy anything from the plaintiff, his wife and children.

(v) The plaintiff shall not cultivate any portion of Dodome land (vi) If someone shares farm boundary with the plaintiff, that boundary shall be redemarcated with a view of taking over the plaintiff’s portion.

(vii) Henceforth nobody shall approach them in case of any mishap likewise the plaintiff shall also not approach anybody.

(viii) If someone is indebted to the plaintiff and his household the debt shall be paid through Adolph at Avexa.

(ix) The plaintiff and his wife shall not attend any communal work and shall not make any financial contributions towards same (x) In case the plaintiff, his wife or any of his children die, they shall not be buried on Dodome land.” In his evidence the plaintiff said that he was not present at the meeting and that it was one Vincent Vukey who came to inform him that:

“The second defendant and his elders warned the citizens that nobody should talk to my wife and my children in the town. Secondly, they warned them that if I die no one has the right to bury me on land belonging to Dodome-Awiasu—this applies to the death of my wife and children also . . .” The plaintiff was supported in this regard by Vincent Vukey who testified as the second plaintiff witness. But the first plaintiff witness, Christof Dzame, testified that it was one Soglo, a secretary of the first defendant, who read out the words.

The defendants, on the other hand, in paragraph (14) of their defence deny publishing the words in the following words: “(14) Paragraph (10) is very vehemently denied. The defendants did not publish the words complained of.” However, when the first defendant testified, he denied uttering most of the words set out in paragraph (10) but admitted, publishing that the plaintiff should not interact with the youth and the latter should likewise have nothing to do with the plaintiff. He was asked [p.523] of [1993-94] 1 GLR 512 in cross-examination:

“Q What did you pronounce?

A What we said was that as he failed to appear before us, he has no right to approach any of the youth, and we all dispersed. For it was the youth he was putting into fetish.

Q By ‘approaching’ you mean the youth should not talk to him or he should not talk to them or do anything in common?

A Yes.

The first defendant was further cross-examined on the import of the words he admits he uttered in this way:

“Q You also agree with me that for someone to be debarred from interacting with the youth, means that the society in that area considers that person to be unfit in that society?

A I agree that that person is unfit in that society.

Q And you agree with me that in your area such an event is normally associated with people who commit heinous crimes like killing people or terrorising others in the area?

A Yes, I agree.

Q You will agree with me that the plaintiff had been proved innocent by the trial by ordeal through which you sent him?

A Yes, he said he was found innocent.”

The first defendant however denies publishing the remaining words set out in paragraph (10). The second defendant also denies publishing the words complained of at the said meeting. According to him when he was informed by Vukey that the plaintiff was not coming he dispersed the crowd. He said in evidence in-chief: “As the plaintiff said he was not coming, I said there was no case again and so we should go back to our respective places.” When it was put to him in cross-examination thus:

“Q You heard the first defendant while he was testifying that at this meeting it was resolved by the youth not to do anything in common with the plaintiff?

A I cannot remember.”

The spokesman of the youth, Benony Tsame, who testified as the first defendant witness, stated that the second defendant came to Awiasu on three occasions in connection with this case and that it was on the second visit and in the presence of the plaintiff that the youth resolved not to have any dealings with the plaintiff. He said their resolution was passed through

[p.524] of [1993-94] 1 GLR 512 the second defendant who conveyed it to the plaintiff personally.

I find it difficult to accept the second defendant’s statement that he cannot recollect whether any ban was imposed on the plaintiff meeting held on 28 May 1989, and I further do not believe the defendant witness that it was on the second visit of the second defendant and in the presence of the plaintiff that the youth, through the second defendant, imposed the bans on the plaintiff. If so, then the 28 May 1989 meeting would have been meaningless. For once the youth had earlier resolved not to have any dealings with the plaintiff, the same youth would not later on, on 28 May 1989, agree to be present with the second defendant and others to meet the plaintiff at the invitation of the second defendant. In that case, the natural reaction of the youth would be to tell the second defendant through whom the youth passed their bans on the plaintiff, that they would not be present at any meeting at which the plaintiff had been invited. But the uncontradicted evidence is that at this 28 May meeting the entire townsfolk, including the youth gathered at the invitation of the second defendant to listen to the proceedings on the dispute between Esi Bisi and the plaintiff. The defendants admit that at this meeting they sat for hours on end waiting for the plaintiff to attend but the latter refused to attend. Infuriated naturally by the plaintiff’s to attend, the decision expected to be taken is as stated by the defendant, to wit: “What we said was that as he failed to appear before us he has no right to approach any of the youth.” I am therefore satisfied and do find that at the meeting of 28 May 1989 convened at the instance of the second defendant, the two defendants published of the plaintiff words banning the latter from interacting with all citizens of Dodome-Awiasu and vice versa. The meaning and effect of the said ban as explained by the first defendant, is that the plaintiff is not a fit person to live in their society.

In an action in defamation the plaintiff needs not prove the exact words uttered by the defendant. It is enough if he proves that the defendant uttered some such words carrying the defamatory meaning complained of. Once a plaintiff has proved that the defendant uttered part of the words which part is equally defamatory, he has succeeded in establishing his claim. Thus in Gatley on Libel and Slander (7th ed), para 1214 at p 494, the legal position is stated:

“In actions of slander, and in actions of libel where the oral evidence of witnesses is the only proof available, though precise words must be alleged in the statement of claim, it is no longer necessary fo plaintiff to prove that these precise words were in fact published. It

[p.525] of [1993-94] 1 GLR 512 is sufficient if he proves a material and defamatory part of them or words which are substantially to the same effect. In such a case, if the words proved convey to the mind of a reasonable man practically the same meaning as the words set out, the variance will be immaterial.”

And in Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 487-488, CA Atkin LJ said:

“ . . . the plaintiff was entitled to put before the jury his case that the words proved, though not the very words pleaded, were words substantially to the same effect . . . No slander of any complexity could ever be proved if the ipsissima verba of the pleading had to be established.”

In the instant case, although the defendants deny emphatically in paragraph (14) of their statement of defence ever uttering the offending words complained of in paragraph (10) of the statement of claim, I am satisfied on the admission of the first defendant, that they did indeed publish words of the defamatory effect given by the first defendant. I do not accept the second defendant’s story that he did not make any such publication.

As said earlier on, the words admitted by the first defendant to have been published by them, are to the effect that the plaintiff is not a fit person to be in their society, and that the said words are usually meant for those who had committed heinous crimes. Accordingly, I find the said words prohibiting any interaction between the plaintiff and the youth, to be defamatory. And I therefore find the defendants jointly and severally liable in defamation.

The plaintiff’s second relief is a claim for ¢48,000 being expenses he claims to have incurred at the trial by ordeal. He claims this sum of money from the defendants jointly and severally on the ground that the two defendants forced him to undergo the trial. But the evidence clearly establishes that the second defendant was not present and did not have a hand in the plaintiff’s going to the trial by ordeal. The plaintiff himself concedes to this when he was cross-examined by Mr Mensa-Etsi thus:

“Q The second defendant does not live at Dodome-Awiasu?

A Yes, it is true that he does not live there.

Q You went to Ada Junction for the trial by ordeal and returned before this matter was brought to his knowledge, ie the second defendant’s knowledge?

[p.526] of [1993-94] 1 GLR 512

A It can be true.

For second defendant can therefore not be held jointly liable for expenses incurred at the said trial.

For the first defendant, the evidence is that he was present and actively participated in the plaintiff’s subjection to the said trial. Indeed, it is the case of the plaintiff that it was the first defendant who ordered him to go through the trial. And the plaintiff therefore claims against the first defendant alone, damages for false imprisonment and malicious prosecution. The claims for refund of expenses and damages for false imprisonment and malicious prosecution are all thus based on the trial by ordeal. And it goes without saying that the success of these claims will depend on the legal status of the said trial by ordeal. Is it a custom which deserves recognition in our courts?

But before I discuss the legality of a trial by ordeal, let me first find out whether the plaintiff was forced to undergo the trial or he himself offered to undergo it to prove his innocence? For false imprisonment implies total restraint of one’s liberty without his consent. The undisputed facts are that on 25 February 1989 the plaintiff was called to the palace of the first defendant where Esi Bisi alleged that one Ahele Kwamla used juju to kill Vincentia Dogoe and that the plaintiff was also using juju to render the hospital mortuary, where the dead body of the said Vincentia Dogoe was deposited, ineffective so as to disrupt the funeral rites of the deceased. The parties in this suit are all citizens of the Dodome Traditional Area in, the Volta Region. The evidence clearly establishes that the people in that community believe in the power of juju and fetish in killing people. Thus the defendants testified that no citizen of the area could invoke a fetish against his fellow citizen without the consent of the chief of the area. And the second defendant in his evidence in-chief said:

“ . . . it is a law in our town that no one should invoke a fetish summon anyone before a fetish without our consent. . . The punishment consists of one ram, two pots of palm wine, two bottles of schnapps and five cedis cash.”

The second defendant in his said evidence explained that the plaintiff admitted invoking fetish against someone and so he punished him. The plaintiff himself did indeed admit this when he was cross-examined on this as follows:

“Q You will remember that at you yourself at that meeting (before the second defendant) was fined one ram and two bottles of schnapps which you paid?

[p.527] of [1993-94] 1 GLR 512

A Yes, that is so and I have earlier said so.

Q You agree that you paid the ram and the schnapps for putting people into fetish?

A I was fined not because of putting people into fetish but because I invoked the fetish.

Q Why did you invoke the fetish?

A I did so because Ntumi Kwaku said all I can do is to juju him, and I asked whether I have ‘jujued’ anyone. He did not answer therefore I invoked the fetish.

Q You invoked the fetish to do what?

A I only invoked the fetish to see whether I am a jujuman.

Q And so if you are not a jujuman what should the fetish do?

A The fetish will affect the other man.

Q It means Ntumi should die?

A The fetish is not only meant to kill people but when it affects you and you confess and pacify it you will be safe.”

The above evidence from the plaintiff coupled with the earlier one from the second defendant show the belief of the people of the Dodome Traditional Area in the efficacy and potency of fetish and juju. It also shows how the community will react to an allegation that a member of that a community is practising juju or invoking fetish against the other. Such an allegation is a serious indictment on that person. Thus the first defendant under cross-examination described the allegation by Esi Bisi against the plaintiff as follows: “According to our custom the allegation against the plaintiff amounts to a defamation of his character. I put this to him (the plaintiff) and he agreed that he will go and clear himself by trial by ordeal.” The plaintiff therefore was not unaware of the slur the allegations by Esi Bisi was likely to cast on his reputation if he did not take steps to vindicate his good name.

In his evidence, the plaintiff contends that as soon as he denied it, the elders refused to permit him to leave the arena. They asked him to provide ¢40,000 which his relatives paid, and he was, as it were, escorted to the trial at Ada Junction.

The first defendant in his evidence explained that according to Dodome custom whenever anyone is accused of using juju or putting others into fetish, and that person denies it, he has to undergo a trial by ordeal to prove his innocence. He said it is a custom handed down from their ancestors, and that the custom forbids the accused to leave the place until he had proved his innocence. The first defendant testified on this while under cross-examination as follows:

[p.528] of [1993-94] 1 GLR 512

“Q From the time you sent for the plaintiff to come and listen to the accusation, you did not allow the plaintiff to go anywhere his own until he was escorted by your delegates to and from the trial by ordeal?

A It is not so. According to our custom if such an allegation made we, the chiefs and the person accused, will remain at one place.

Q (By Court): And so it is the custom which prevented the plaintiff from moving out till after the trial?

A Yes, it is the custom.

Q You are enforcing those customary observations on that occasion. Is that not so?

A We were following the laid down procedure by our ancestors.”

The first defendant had earlier on explained in his evidence that when he invited the plaintiff and Ahele Kwamla and informed them about allegations made by Esi Bisi, Ahele Kwamla admitted his guilt but the plaintiff, on the other hand, denied and offered in accordance with custom of the area to undergo a trial by ordeal. He and his elders thus found a vehicle and delegated people to accompany the plaintiff. He said in examination in-chief.

“When they returned he, ie Ahele Kwamla told us that it was true that he killed Vincentia Dogoe and the plaintiff said that he knew nothing about it. Therefore he offered to go and clear himself. He told us that according to custom he has to go. As he was ready to go we found a driver for him.”

The evidence of the plaintiff and his witnesses clearly show that when the fetish cleared the plaintiff and they set back to Awiasu, they clad themselves in white calico and sang to signify the victorious result of the trial. The plaintiff was therefore not unaware of this custom of trial by ordeal as a way of vindicating one’s good name against such vicious allegations. The plaintiff’s evidence that it was his relatives who paid the ¢40,000 is a further testimony of the consent of his family to the trial and their recognition of the said custom. The plaintiff, fully conscious of the custom, was therefore likely to offer himself for a trial by ordeal to clear his name. I therefore accept the first defendant’s evidence that when the plaintiff denied the allegation, it was the plaintiff himself who offered to prove his innocence by undergoing a trial by ordeal; and that once he had accepted to undergo the said trial he ought not to leave the place until he had undergone it. I reject the plaintiff’s contention that it was the first

[p.529] of [1993-94] 1 GLR 512 defendant who forced him to undergo the trial and further refused him permission to move an inch from the public place. I find as a fact that the plaintiff, a citizen of the Dodome area, in accordance with the custom of the area, voluntarily offered to undergo the trial by ordeal when he denied the allegations by Esi Bisi.

The plaintiff further alleges that on his return from Ada Junction, he had to seek permission from the first defendant before he could go home. This permission, the plaintiff contends, is a further sign of the restraint imposed on him by the first defendant. But that meeting was for the delegation to inform the elders and the people of the result of the trial by ordeal. In other words, the meeting was necessary for the plaintiff to inform the public of his victory. And I agree entirely with Mr Mensa-Etsi when he said that the permission was natural in view of the fact that the first defendant was the chief presiding over the said meeting. It is indeed, customary and respectful to ask for permission from the presiding elder of any meeting before a member can leave if the meeting had not come to an end. Furthermore, at this meeting, the plaintiff had no doubt in his mind that he had been cleared of the accusations. He therefore did not feel any restraint, and his permission was granted as a matter of course. Indeed, when the plaintiff was declared innocent at Ada Junction and he set off smeared in white powder and with white calico tied on his hands, he felt more free than any citizen of Dodome at that time. He could therefore not have thought that his liberty was being restrained. The plaintiff was fully aware that the trial by ordeal to vindicate his good name is the accepted custom of the chiefs and people of Dodome area and not the mandate of the first defendant. Thus in his evidence in-chief, the plaintiff said that when he and the delegation got to the fetish at Ada Junction: “ . . . Christof Dzame told the people at Ada Junction that they have been asked by their chiefs and people to bring me there to be tried by ordeal.” (The emphasis is mine.)

The plaintiff in the above evidence is clearly conceding that it was the chiefs and people who asked him to go to the trial by ordeal. And the chiefs and people are indeed acting according to the custom they had received from their ancestors. If so, how can he then hold the first defendant liable for his going to Ada Junction? Furthermore, the evidence of the plaintiff and his witnesses show that the ¢40,000 paid by the plaintiff’s relatives was given to Christof Dzame who disbursed this at Ada Junction. Having found that this trial is an accepted custom of the area and that the plaintiff decided to undergo same to clear his name, he cannot hold the first defendant liable to refund the said expenses. It lies ill in the mouth of the plaintiff to claim this ¢48,000 expenses when he

[p.530] of [1993-94] 1 GLR 512 relies on his “acquital” at the said trial to launch his claim for malicious prosecution.

The plaintiff’s last claim is damages for malicious prosecution. This implies that the plaintiff had been acquitted of a criminal charged by a court of competent jurisdiction. First of all the plaintiff had failed to demonstate that the accusation levelled against him can be the subject of a criminal charge, ie whether a person can be charged before the criminal court for using juju to demobilise a mortuary—an accusation which sounds not only unreasonable but senseless. Secondly, is a trial by ordeal an acceptable mode of trial recognised by our law? Both counsel strangely contend that the trial by ordeal in the instant suit is lawful and that the forbidden trials by ordeal are those set out in section 315 of the Criminal Code, 1960 (Act 29).

It is true that section 315 of Act 29 renders unlawful any trial by ordeal which is likely to result in the death or bodily injury to any party to the trial. It therefore follows, argue both counsel, that where the trial by ordeal is not likely to result in the death or bodily injury to a participant, the said trial is not unlawful. And so in the instant case, they continue the argument, since no death nor injury resulted to the Plaintiff, the said trial by ordeal is not unlawful. But it must be realised however that under section 315 of Act 29, the lawfulness of the trial is not determined by the actual result of the trial, but by the very process of the trial. If the process of the trial is likely to result in death or bodily injury then notwithstanding the fact that no injury nor death resulted, the trial will be unlawful.

Judicial decisions on this area of the criminal law are virtually non-existent. However, the West African Court of Appeal’s decision in Mabogunje v Inspector-General of Police (1953) 14 WACA 350 where the appellant was charged under a similar provision of the Nigerian Criminal Code, clearly confirms the view that the lawfulness or otherwise of the ordeal lies in the process whereby the trial is conducted. Where the trial results in death or bodily injury to a participant, the one responsible for the trial may be charged with murder, manslaughter or causing harm as the case may be. But I concede that it would be an uphill task in succeeding on a charge of murder. Thus in the East African case of R v Palamba s/o Fundikla (1952) 14 EACA 96, the court did not hesitate quash the conviction of the appellants for the murder of a woman at a trial by ordeal. Now the question is: Does the fact that our Act 29 does not render unlawful some forms of trials by ordeal, imply that those unaffected trials by ordeal are to be recognisable as valid in our courts? Trial by ordeal has been known to be one of the most savage and primitive methods of trial. It sometimes took the method of deciding someone’s

[p.531] of [1993-94] 1 GLR 512 guilt or innocence by requiring him to pass a physical test, such as passing through fire unharmed, or fighting his accusers. The accused may sometimes also be made to undergo certain rituals or magical tests. Esther Warnet’s book entitled, Trial by Sasswood (Penguin, 1965) at pp 208-214, she recounts one such trial by ordeal (of boiling oil) in Liberia of a person accused of theft. In medieval Europe, trial by ordeal was a common feature, and beliefs in witchcraft and the persecution of those suspected of being witches persisted well into the eighteenth century. In Scotland the last known burning of witchcraft took place in 1922 and the widespread belief in witches certainly lasted until much later. In whatever form a trial by ordeal took, it did not have due regard to the dignity of the person accused. It is indeed a misnomer to describe what goes on at proceedings before fetish priests, witchcrafts and other forces believed to inhere in inanimate substances, as a trial. In these proceedings, the accused is not given an opportunity to put forward his version of the case. He is not given an opportunity of being defended by anyone. And the potency and fairness of the fetish priest or force deciding his fate are all shrouded in doubt.

Now in the face of increasing social enlightenment, the law in our modern societies have set out the manner in which a person accused of a crime is to be tried. Thus where a mode of trial of an accused is not accordance with the laid down law and the said mode of trial is repugnant to any provisions of the law, that mode of trial is by necessary implication, invalid, notwithstanding the fact that the law does not specifically ban that mode of trial. Indeed, our nation, and every nation for that matter, has specific aspirations it aims at. Thus PNDCL 42 sets out in section 1 the Directive Principles of State Policy which must guide all arms of the government including the courts. Notable among these directive principles are those set out in section 1(1)(b) and (1) as follows:

“(b) respect for fundamental human rights and for the dignity of the human person are to be cultivated among all sections of the society and established as part of the basis of social justice . . . traditional cultural values are to bead apted and developed as an integral part of the growth and development of the society.

(j) traditional cultural values are to be adapted and developed as an integral part of the growth and development of the society.”

And to ensure that nothing hinders the achievements of these aspiration section 61 of PNDCL 42 renders inoperative any law or rule of custom, incompatible with the said aspirations.

Now trial by ordeal of whatever form is all affront to human dignity, and since we are enjoined by section 1(1)(b) of PNDCL 42 to cultivate respect for the dignity of the human person, it will be a contradiction in

[p.532] of [1993-94] 1 GLR 512 terms to hold that the courts should recognise and validate those trials by ordeal wherein no bodily injury is likely to be caused to the participant. Indeed, before the promulgation of PNDCL 42 previous statutes of this country had emphatically laid it down that customary rules and practices were to be applied and enforced by the courts only where they were not “repugnant to natural justice, equity and good conscience.” Society is undoubtedly undergoing tremendous change and development. Scientific advancement had explained what in the olden days were held to be inexplicable and attributed to some unknown forces. In the olden days for example couples, whose children died in their infancy were said to be the victims of witchcraft. But now has been amply shown by scientific discoveries that couples with particular blood traits are prone to give birth to unhealthy babies with short life spans. It is therefore reasonable that those old customs which are obnoxious or were founded on primitive and ignorant hypothesis must give way to present day rational explanations. As Taylor JSC said in Hammond v Odoi [1982-83] GLR 1215 at 1261 SC: “Old customs under the pressure of changing circumstances give way to new ones.”

In the light of the power expressly given to the courts in previous statutes and PNDCL 42 to refuse to enforce outdated and obnoxious customary practices and rules, I find the High Court’s decisions in Abaye v Akatia [1982-83] GLR 1072 and that of Danah v Kokomba, High Court, Tamale, 26 February 1987, unreported regrettable. In Abaye v Akatia (supra), the plaintiff’s food crops in his backyard garden were destroyed by the defendants during the funeral rites of the tufuhene of the area. It was an accepted custom in the area that whenever a tufuhene died the people while performing the customary funeral rites, could go on a rampage slaughtering goats, sheep and destroying food crops grown in the backyard of houses. The trial magistrate found that the custom was an established one in the area and dismissed the plaintiffs claim. On appeal to the High Court, Ansah-Twum J dismissed same, holding that any required change in the custom was to be effected by those who practised it and not by the court. His lordship continued at 1079:

“ . . . it is not given to the court to conduct a research into the time honoured practices in order to pass a judgment on its validity or otherwise. The court is incompetent to do this, I think, for this appears to be one of the functions of the appropriate traditional council in a given case.”

I concede that traditional councils under sections 41-47 of the Chieftaincy Act, 1971 (Act 370) are competent to suggest changes in any

[p.533] of [1993-94] 1 GLR 512 custom within their locality, but then in so far as his lordship held that courts are incompetent to pass judgment on the validity of customary practices, I am of the firm view, with respect, that that holding is faulty in the light of repeated provisions in our past statutes culminating in section 61 of PNDCL 42 which enjoins courts not to enforce customary practices which are impediments to the objectives of the national aspirations. Indeed, where customary practices are a negation of the yardstick referred to, a citizen of the affected community needs not wait for a court’s order before refusing to comply with the said custom. The citizen is entitled of right under the existing law to refuse to submit to the said customary practice. Thus in Attah v Esson [1976] 1GLR 128, CA the Court Appeal disaffirmed a rule of customary law propounded by John Mensah Sarbah to the effect that a customary landlord is permitted to enter into agricultural land he had granted under customary tenancy to gather the fruits of economic trees planted by the tenant. The Court of Appeal unambiguously rejected the submission that the said customary law must persist until set aside by a court. Amissah JA at 133 of the report, delivered himself as follows:

“Learned counsel for the defendants has argued that if Sarbah proposition was wrong no court has so declared before, and therefore, presumably persons were entitled to act in accordance with Sarbah until a court declared to the contrary. We do not think so. We think that the customary law as stated by Sarbah became outdated and ceased to be law as soon as conditions in society changed so as to make it unreasonable for persons to conduct themselves by it. It is, therefore, not necessary for the society to await a court’s ruling before deciding to act in a manner contrary a rule of conduct which has become unreasonable.”

In Danah v Kokomba (supra) Sapong J, sitting at the High Court Tamale affirmed the magistrate’s decision which held that the marriage between the plaintiff and the defendant’s daughter was a bridal exchange under Konkomba custom by which the plaintiff was bound to give a girl in marriage to the defendant in exchange of the defendant’s daughter and that on failure of the plaintiff to honour his part of the contract marriage, the defendant was entitled to take away the daughter and a child of the marriage from the matrimonial house. This is certainly an obnoxious and unreasonable custom which his lordship ought to have rejected in accordance with section 61 of PNDCL 42.

I have no lingering doubt in my mind that under PNDCL 42, the courts have the power to pass judgment on the validity and enforcement

[p.534] of [1993-94] 1 GLR 512 of customary practices so as to give meaning and direction to the government’s efforts at realising its aspirations. To this end, I unreservedly declare that the custom whereby the guilt or innocence of individuals are determined through a trial by ordeal is obnoxious and unreasonable. In my view, it is a custom wallowed in primitive and savage ignorance, affront to the dignity of man, and a negation of the noble ideals of fair trial. It is, in short, a customary practice which is contrary to section 51(1)(b) of PNDCL 42 and consequently cannot deserve the recognition of any court of law, and cannot be considered as part of the customary law of this country.

Indeed, in the recent case of Akorninga v Akawagre [1987-88] 2 GLR 562, CA the court relying on section 61 of PNDCL 42 did not hesitate to declare as invalid a Frafra customary practice which provided that on the death of a husband his widow was perpetually restrained from marrying any other person except the successor or a member of the deceased’s family. The Court of Appeal held as per the headnote, that such a Frafra customary law:

“. . . was so unjust and blatantly discriminatory against women, it could not under modern conditions be considered part of the customary law of the country and could not have survived various constitutional provisions which had now ended up with PNDCL 42.”

Accordingly, in the instant case, I am unable to give legal recognition to the custom of the Dodome Traditional Area whereby a person accused of killing people by juju or resorting to juju or fetish for any nefarious purpose had to undergo a trial by ordeal to prove his innocence. The plaintiff’s reliefs based on this obnoxious custom are thus refused.

I have found that the words admitted by the first defendant to have been published by them concerning the plaintiff are defamatory. What consequences follow from this? The plaintiff claims ¢10 million as damages and perpetual injunction. The parties herein are all subjects of the Dodome Traditional Area and the applicable law is thus the customary law. Damages are generally not awarded in a vacuum but in relation whole circumstances of the case and in particular, the conduct parties.

The defendants are undoubtedly the chiefs of the community in which the plaintiff belongs. And as chiefs they are thus socially duty-bound to ensure peace and harmony in the area. They are the traditional rulers and leaders of the plaintiff. And they are therefore entitled to respect obedience from their subjects including the plaintiff. Thus Act 370 seeks

[p.535] of [1993-94] 1 GLR 512 to guarantee their respect by providing in section 53(a) that whoever knowingly uses disrespectful or insulting language or conduct against any chief is guilty of an offence: see my judgment in Debrah v The Republic [1991] 2 GLR 517 wherein this offence is fully discussed. Indeed, the colonial masters recognised the status and need to protect chiefs when they enacted in section 25A of the Native Jurisdiction Ordinance, 1883 that no action shall be brought against any chief in respect of any act done or order made by him in good faith and in the execution or supposed execution of the powers and jurisdiction vested in him. Thus subjects are not allowed to hold in ridicule and treat with contempt their chiefs.

Now the undisputed facts of this case as advanced by the plaintiff is that Esi Bisi made some defamatory allegations against him. He referred the matter to the defendants who, according to the plaintiff, refused to deal with it. Later the plaintiff summoned Esi Bisi before them. The evidence clearly establishes that the chiefs and the entire community sat down for hours on end waiting for the plaintiff, but the latter told Vincent Vukey to inform the second defendant and the chiefs that he would not come. The plaintiff himself testified to the summoning by the chiefs and elders in the following words:

“Q After this final discussion did anything happen again?

A After that the second defendant invited the chiefs and his elders and the inhabitants of Dodome-Awiasu on 18 May 1989.

Q On this day were you summoned to this meeting?

A I was sent for through my brother Vincent Vukey that the second defendant and his elders had called me to go into a matter between me and Esi Bisi.

Q What was your response?

A Then my reply was that I have explained my stand to the second defendant that there is no matter between me and Esi Bisi for them to settle.”

The plaintiff, I concede, cannot be compelled to submit to the jurisdiction of the defendants, but when he was sent for and informed that the second defendant and his chiefs and elders had gathered waiting for him, he is duty bound to show respect to the chiefs and elders by responding to the call and explaining, before them his reasons for not desiring their intervention in the dispute. After all the plaintiff himself alleged that

[p.536] of [1993-94] 1 GLR 512 he had earlier referred the same dispute to the defendants. The plaintiff’s refusal to appear before the chiefs to explain his objection amounted to disrespect to the chiefs, and naturally infuriated them to publish the words admitted by the first defendant. The plaintiff’s conduct was certainly imprudent although that was no excuse for the excesses the defendants went to in the words they published.

The defendants pleaded no justification nor any privilege. They deny publishing the words. However, they pleaded that the plaintiff has not got the type of reputation he claims had been tarnished by the words complained of. They pleaded this in their paragraph (15) as follows:

“(15) The defendants state with respect to paragraph (11) that it was not the defendants who imputed the conducts complained of by the plaintiff but the plaintiff’s own conduct and word which give him out as such.”

The plaintiff contended in his said paragraph (11) that the words complained of in paragraphs (9) and (10) impute the crime of killing by means of juju or supernatural powers to him and as such he was not I suitable person to live with in their society.

It is settled law that evidence of general bad reputation is adimissible in mitigation of damages in actions for defamation: see Scott v Sampson (1882) 8 QBD 491. Thus in Speidel v Plato Films Ltd [1960] 2 All ER 521 at 525, CA Devlin LJ said:

“There is no doubt that a defendant in a libel action may in mitigation of damages give evidence that the plaintiff bears a bad character. The word ‘character’ is not here used in the sense of a man’s quality or disposition, but in the sense of the reputation which he bears. The action for libel is an action for loss of reputation… If a man’s reputation is already so bad that it cannot be made worse, the man who defames him will in fact have done him no further damage . . .”

In the instant case, the defendants sought to prove the plaintiff’s general inclination towards juju and fetish invocation by pointing out that before the plaintiff went for the trial by ordeal he claimed a number of exemptions some of which related to his use of juju. The plaintiff denied the said exemptions but his own witness, Vincent Vukey, the second plaintiff witness, in his evidence in-chief admitted that the plaintiff did invoke fetish on someone and claimed this as an exemption, before the, trial. The second plaintiff witness was asked in-chief:

[p.537] of [1993-94] 1 GLR 512

“Q They, ie the defendants, also allege that the plaintiff also said that when he had a dispute with a person whose fish his goat ate he put him before a fetish and this should not be held against him?

A Yes. The plaintiff said that he invoked fetish on the one whose fish his, the plaintiff’s, goat ate.”

The defendants also called the second defendant witness, Hilarius Tse, who testified that the plaintiff summoned him before a fetish for refusing to pay him ¢12,000 being the cost of cassava he bought from the plaintiff. The second defendant witness’ evidence was not disputed. And finally, the plaintiff himself admits that the second defendant fined him for invoking fetish on someone. Thus the plaintiff’s general propensity in resorting to fetish is well laid by the defendants.

Now the invocation of fetish for evil purposes or putting a person in fetish per se was traditionally regarded as a serious or punishable crime under customary law. The invocation of a fetish oath is meant to have a harmful effect on time person on whom it is sworn. Thus in Beddoomassoo v Bossoo (1884) Sar FCL 247 the defendant was found guilty on a charge of “calling down a fetish to kill the plaintiff.” In R v Essel (1877) Sar FCL 12 the accused was convicted on a charge of “being found in possession of fetish and other noxious medicine with the intent thereby to poison, endanger and injure the people of Cape Coast Castle.” Finally, there is the case of R v Adjagbi (1913) 2 Ren 745 in which the accused person who had induced the complainant to pay him some money under a fetish curse was found guilty of obtaining money by threats contrary to the Criminal Code.

Thus resort to juju and fetish to harm others had not been favourably looked upon in our traditional society. And those found to be indulging in such practices had been brought to book. Indeed, the plaintiff himself admits that the second defendant fined him for invoking fetish on one Ntumi Kwame. From the matters established against the plaintiff in relation to his activities in juju and fetish practices, he cannot be said to have a clean reputation. Furthermore, as pointed out earlier, his refusal to respond to the call of his chiefs at least to explain his objection to their going into the dispute he himself had earlier referred to them, is imprudent. And finally, bearing in mind that the essence of an action in slander is not to make money but to clear one’s good name, I am of the view that general damages of ¢10,000 would be an adequate compensation for the defamatory words published by the defendants. I will restrain the defendants perpetually from uttering the defamatory words. I will however refuse the plaintiff’s request that the defendants be ordered to

[p.538] of [1993-94] 1 GLR 512 beat gong-gong in all Dodome towns to withdraw the said words. The words were published in Dodome-Awiasu only, and the award of damages and injunction are sufficient to cancel, nullify and withdraw the said words. The plaintiff’s claim for ¢48,000 being expenses incurred at the trial by ordeal and ¢5 million damages for false imprisonment malicious prosecution are dismissed. Further, his claim for an setting aside what he describes as purported arbitration of 28 May 1989 is struck out as same was abandoned. Since the plaintiff has succeed in part and lost in part, there will be no order as to costs.

DECISION

Judgment for plaintiff in part.

PKT