BANSON v. NANA [1965] GLR 24

DIVISION: HIGH COURT, CAPE COAST

DATE: 29 JANUARY 1965

BEFORE: LASSEY J.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Circuit Court, Cape Coast, affirming the decision of Cape Coast Local Court Division 2, successor to the Municipal Court B of Cape Coast, awarding £G10 damages against the defendant for slander. The action had originally been [p.25] of [1965] GLR 24 instituted in the Municipal Court B of Cape Coast. The facts as summarised in the headnote are taken from the judgment of Lassey J.

COUNSEL

T. D. Brodie-Mends for the appellant. Dr. de Graft-Johnson for the respondent. JUDGMENT OF LASSEY J.

[His lordship stated the facts as summarised in the headnote and continued:] There is no doubt on the evidence that the words found to have been spoken by the defendant-appellant were so uttered in the heat of passion resulting from the altercation between him and the plaintiff about the settlement of the debt he alleged was due and owing by the plaintiff. It is clear to me from the nature of the plaintiff’s claim that her action was intended to be and was founded under customary law; this can be seen from the words alleged to have been spoken and also from the size of the sum claimed by way of damages. The record of the proceedings show that the action was first instituted in the former Municipal Court B of Cape Coast in or about March 1960, and was finally tried and conducted in the Local Court Division 2 held at Cape Coast. On 1 July 1960, the Courts Act, 1960,1 came into force and the Local Courts Act, 1958,2 was thereby repealed. At the time the action was instituted in the former Municipal Court B in March of 1960, the law in force was that enacted in section 15 of the Local Courts Act, 1958, now repealed. It reads: “Subject to the provisions of this Act a Local Court shall administer—  (a) the customary law prevailing within the jurisdiction of the Local Court so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any Act for the time being in force . . . “ When the local courts set up under the Local Courts Act, 1958, were abolished, following upon the repeal of the Local Courts Act, their jurisdiction to administer customary law was transferred to the present local courts set up after the coming into force of the Courts Act, 1960. It therefore follows that unless the rules of the common law and customary law were identical on this subject the plaintiff’s action could not be founded on the English law where different principles would apply. In fact, there has not been any contention that the plaintiff’s action is not founded under customary law. The trial local court after hearing the evidence of the parties and their witnesses accepted the version of the plaintiff and her

[p.26] of [1965] GLR 24

third witness who was present and heard the publication of the words complained of. The trial Cape Coast Local Court Division 2 found for the plaintiff, and awarded for her £G10 damages for slander. The defendant appealed to the Circuit Court, Cape Coast, which court also affirmed the decision of the trial local court and dismissed his appeal. The unsuccessful defendant, however, appealed to this court after leave was granted. Learned counsel for the appellant argued that, as the plaintiff’s action was founded under customary law, the words alleged to have been spoken could not have been actionable per se, unless the meaning attached to the words was clearly understood by the only witness who was present and heard the publication of the words in their original form. Learned counsel seriously contended that no evidence was given by the plaintiff’s third witness that she understood the words to have had any slanderous meaning or that after publication she held the plaintiff in ridicule or contempt. Learned counsel stated that the plaintiff’s third witness should have explained to the trial court the meaning which she attached to or read into the words used. He therefore concluded that in the absence of any evidence concerning the meaning attached to the words used the action should not have been entertained because the words in their native form could not be actionable. Dr. de Graft-Johnson for the plaintiff-respondent, in reply to the helpful arguments of learned counsel for the appellant, submitted in his usual characteristic but very forceful manner that the words found by the trial local court to have been spoken about the plaintiff by the defendant at a public place were actionable per se according to customary law. Learned counsel placed much reliance for his contention upon a statement of the customary law in a passage in Sarbah’s Fanti Customary Laws (2nd ed.) at p. 113 which reads as follows: “Words which cause or produce any injury to the reputation of another are called defamatory, and, if false, are actionable. False defamatory words, when spoken, constitute slander. 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.” Counsel therefore contended that the words “if you eat one’s property free, you receive punishment for it,” were words which certainly sounded to the disrepute of the plaintiff and that both the trial court and the circuit court were right in their conclusions on the evidence. In my opinion if those words found to have been spoken by the appellant merely caused injury to the respondent’s feelings or caused her some annoyance but in no way reflected on her character or

[p.27] of [1965] GLR 24

reputation they could not be said to be defamatory. But the circumstances of the case demonstrate clearly to my mind, and presumably to the minds of the presiding judges of the courts below, that the words spoken about the plaintiff, though they might have been uttered in the heat of passion, were not mere vituperatives or vulgar abuse, but were unpleasant sarcastic insinuations which were intended to sound, and which in fact sounded, to the disrepute of the plaintiff. In my view, the words per se reflected adversely on the character of the plaintiff. They conveyed the meaning that the plaintiff was a person who liked to live cheaply off others or to take other people’s properties without paying for them. Certainly, the words if spoken about any person to the hearing of any citizen of Ghana were bound to be understood in a very derogatory sense and must surely have cast a poor reflection on the character of the person about whom the words were spoken, and would in my view constitute slander which is actionable per se according to customary law. According to Sarbah, the words spoken must also be false to be defamatory. In this case the defendant-appellant did not seek to establish the truth of or justify the use of the words—he denied entirely ever uttering the words complained of, but his denial was rejected by the trial court and this finding was confirmed by the appellate circuit court. On the contrary, the plaintiff-respondent, in denying her indebtedness to the appellant, showed by her conduct that she did not do anything which should warrant the use of words which should sound derogatory to her reputation. It follows therefore that in the absence of any proof of truth or justification, the words spoken must be deemed to have been spoken falsely and are therefore actionable. In my opinion, as slander according to customary law is a civil wrong actionable at the suit of the person defamed it is redressible by an award of pecuniary damages or monetary compensation. In the result, I think the trial local court came to the correct conclusion both on the facts and on the customary law, and that the learned judge was right in affirming his decision. This appeal must fail and is accordingly dismissed with fifteen guineas costs in favour of the respondent. DECISION

Appeal dismissed.

S. K. D.-B.

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