Division: IN THE SUPREME COURT
Date: 27 JANUARY 1964
Before: SARKODEE-ADOO, OLLENNU AND BLAY JJSC
JUDGMENT OF OLLENNU JSC
We dismissed the appeal in this case on 8 January 1964 reserving our reasons for so doing; we now proceed to give the reasons.
By his writ of summons the plaintiff claimed £G15,000 and an order for injunction restraining the defendant from speaking and publishing defamatory words against him. The writ itself disclosed no cause of action; but this defect, however, was cured by the statement of claim which was filed together with the writ of summons.
The plaintiff was at all material times a legal practitioner and a member of Parliament for the Sekyere West electoral district; he occupied a flat in house No. AA8, Kwame Nkrumah Road, Kumasi, as a tenant of the defendant. He and the defendant had been friends for a number of years prior to the incident which led to the action; and from letters he wrote to the defendant while a student in the United Kingdom, which were admitted in evidence, it is clear that the plaintiff had, in the past, regarded the defendant as his benefactor.
The words complained of are: (1) “You are a thief”; (2) “You are a hopeless lawyer; Se ennye Owusu Afriyie a anka wonnya asem nni”; (3) “You are a hopeless M.P.” In respect of these words the plaintiff pleaded in paragraphs (7), (8), and (9) of his statement of claim that:
“(7) By the words `You are a thief’ the defendant meant and was understood to mean that the plaintiff had committed a criminal offence punishable with imprisonment.
(8) By the words `You are a hopeless lawyer; Se ennye Owusu Afriyie a anka wonnya asem nni’ the defendant meant and was understood to mean that the plaintiff was incompetent and inefficient in his profession as a lawyer.
(9) By the words `You are a hopeless M.P.’ the defendant meant and was understood to mean that the plaintiff was unfit and of no use in his office as a member of Parliament for the Sekyere West electoral district.”
The defendant denied speaking or publishing the words as alleged by the plaintiff; he further pleaded that even if the said words were uttered and published, they were not, in the circumstances of the case understood to bear any meaning defamatory of the plaintiff.
Upon these pleas the following issues were joined: (1) Whether or not the defendant spoke and published the words complained of; (2) whether or not the words complained of are defamatory or were understood to bear a meaning defamatory of the plaintiff; and (3) The quantum of damages.
The questions (1) whether or not the words were spoken and published and (2) whether or not they are defamatory of the plaintiff, are questions of fact which, in a trial by jury, would be left by the judge to the jury. But the question of whether or not the words are capable of referring to the plaintiff and capable of a defamatory meaning in the minds of reasonable persons in the circumstances of the case, is a question of law which the judge must decide as a preliminary issue: See Halsbury’s Laws of England (3rd ed.), Vol. 24, p. 107, para. 198. In Adam v. Ward,1 Lord Dunedin stated the principle thus:
… if there is controversy as to whether the words used are defamatory or not, it is for the judge to determine whether they are capable of a defamatory meaning, and, that being resolved in the affirmative, it is for the jury to find whether they are actually defamatory or not.”
See also the Capital and Counties Bank Ltd. v. Henty.2 The principle is further explained in Halsbury’s Laws of England (3rd ed.), Vol. 24, p. 107, para. 198 as follows:
“The question whether the words complained of are defamatory is for the jury, but, before the question is submitted to them, it is for the trial judge to rule upon the evidence whether the words complained of are capable of referring to the plaintiff and capable of bearing a defamatory meaning in the minds of reasonable persons in the circumstances of the particular case.”
Emphasis must be laid on the words “in the circumstances of the particular case.”
The same principle applies to a judge sitting alone, that is, as a judge and jury; he has first to decide this preliminary question of law, for if he should decide that the words are not capable of defamatory meaning, he should stop the case and enter judgment for the defendant as he would have done in a trial with a jury: See Mulligan v. Cole,3 and Beswick v. Smith.4
We observed earlier, in the comment on the passage quoted from Halsbury, that emphasis should be laid on the words “in the circumstances of the particular case” because words prima facie innocent, may, when spoken under certain circumstances, or in a certain setting, be defamatory; on the other hand, words which in their ordinary and natural meaning are defamatory may, nevertheless, when uttered in certain circumstances, not be understood by people who bear them to be defamatory of anybody. Again in the case of slander, words which prima facie impute a crime or other defamatory matters will not be actionable per se if it is clear from the circumstances in which they were uttered that they could only be mere general vituperation or vulgar abuse, which could be so understood by hearers; so that although the
judge may decide as a matter of law that words complained of are capable of defamatory meaning, a jury, or a judge sitting as judge and jury may, in the circumstances of a particular case, find that the sense in which the words were used and in which they must have been understood, is that they are non-actionable, vulgar, scurrilous epithets: See Thorley v. Lord Kerry,5 and Christie v. Robertson.6 On the general principle that no action of slander lies for mere words of heat or vulgar abuse, see Halsbury’s Laws of England (3rd ed.), Vol. 24, p. 25, para. 47, Gatley on Libel and Slander (5th ed.), p. 54, para. 87, also the following Ghana cases: Cheetham v. Bannerman,7 Amoah v. Djabi,8 and Chuku v. Nkrumah.9
The learned trial judge followed the proper procedure in this case. He came to the conclusion that if the words were spoken, then they were spoken of the plaintiff; and on the issue of whether the words are capable of defamatory meaning he also came to the conclusion that they are so capable.
But considering all the circumstances of the alleged publication, the learned judge came to the conclusion that both the plaintiff and the defendant were highly incensed at the time of the incident and quarrelled heatedly to the point of fighting and abused each other freely in the heat of passion. He therefore formed the opinion that whatever the words may be which they each used on the particular occasion, they were “words of heat and vulgar abuse” which are not actionable. There is ample evidence which warrants that finding.
The learned judge, finally, on the major issue of whether the particular words complained of were the words used by the defendant on this occasion of high infuriation, came to the definite conclusion that the plaintiff failed to prove that the words he alleged were the words used by the defendant during the heated quarrel which, but for the intervention of some persons, would have resulted in a fight between him and the defendant.
Three grounds of appeal were argued:
“(1) Since the learned judge found the words complained of to be defamatory in their ordinary meaning he was wrong in holding that the plaintiff’s witness Kwabena Bonsu should have been asked what he understood the words to mean.
(2) The learned judge held that the words complained of were not the words used by the defendant, but he failed to make any findings as to the words used. This is wrong in law and renders the trial unsatisfactory.
(3) The judgment is against the weight of evidence.”
Dealing with the issue whether or not in the peculiar circumstances of this case the words complained of, though prima facie capable of bearing defamatory meaning, were understood by the hearers as defamatory of the plaintiff, the learned judge expressed regret that the one only witness called for the plaintiff did not assist the court in its task of making a finding upon that issue. He said10: “Again if counsel concedes that calling the plaintiff a thief was mere vulgar abuse and therefore not actionable-similarly all the other words used by the parties about each other must be considered mere vulgar abuse. Counsel wondered whether this witness should have been asked what he understood the words to mean, but hastily left the matter there. That, I regret, is an error, for there can be no actionable publication of a libel or slander to persons who do not understand the words to be defamatory or defamatory of the plaintiff: Sadgrove v. Hole [1901] 2 K.B. 1 at p. 6, C.A. I think the plaintiff’s witness who was brought in to prove
publication of the slander should also have been asked what he understood the words he heard to mean. He may very well, knowing the high reputation and integrity of the plaintiff, not have been impressed at all by the words. In fact he too may have considered them mere vituperation and vulgar abuse.”
Counsel for the plaintiff submitted that having held that the words complained of are prima facie defamatory, the learned judge erred in directing himself that evidence of what hearers understood the words to mean is a necessary matter for consideration because since the words are prima facie defamatory, the plaintiff need prove nothing more to succeed except that they were published of him. This criticism is based upon a misconception of the duties of a judge sitting as judge and jury.
We have already pointed out that as a judge he has to decide as a prior question of law, whether the words are capable of defamatory meaning; if he should hold that they are, he must proceed as a jury, to decide whether or not those words which are capable of defamatory meaning or which are prima facie defamatory were understood by the hearers as defamatory of the plaintiff. In the performance of his said duty as a one-man jury, evidence of the hearers is essential particularly where there are circumstances which might well make the hearers regard the words as nothing more than vulgarism. The position would be different if there are no such circumstances, in which case once the words complained of are defamatory in their natural and ordinary meaning, all the plaintiff need prove more, as earlier observed, is, that they were published of him: See Gatley on Libel and Slander (5th ed.), p. 125, para. 204. But there can be no publication unless the manner and circumstances in which the words were spoken are such as to convey the defamatory meaning to the person to whom they are communicated: See Gatley on Libel and Slander (5th ed.), p. 82, para. 133, and p. 86, para. 138.
On the vital issue of fact as to whether or not the defendant spoke and published the words complained of as alleged by the plaintiff, the judge, after careful examination of the evidence came to the conclusion that the plaintiff failed to prove that the defendant spoke and published them. In the course of his consideration of this issue the learned judge made certain observations some of which formed the subject of strong criticism by counsel for the plaintiff in his submission on the second and third grounds he argued. The learned judge said inter alia11:
“… According to the plaintiff and his witness they were spoken. According to the defendant and his three witnesses those were not the words used. They all agreed that there was a quarrel. From their evidence there is nothing to discredit either the plaintiff or the defendant. My own view is that they were so engrossed in their quarrel that they cannot really comprehend the actual words used by either party. I therefore looked for corroboration of their stories from
their various witnesses. And of the witnesses I was more impressed with Ashaley’s evidence than that of Kwabena Bonsu. Kwabena Bonsu said he was in the kitchen at the start of the quarrel when he came to cool down his master. But his master said he was cleaning up the rooms that had been soaked with rain water. I agree with the plaintiff and say that it is more probable that Kwabena Bonsu was cleaning up the water and not standing by or near his master trying to separate the parties. In those circumstances I would say that it is less probable that he would hear the exact words used in the quarrel which according to him lasted about half
an hour. I think the scales weigh in favour of the defence on the facts too, namely, that the words complained of were not the words used by the defendant.”
It was submitted that having held that there was nothing to discredit either the plaintiff or the defendant, the learned judge erred in preferring the version of the defendant to that of the plaintiff on the grounds that the defendant’s version of the words used was corroborated by his witness Ashaley, while the plaintiff’s version was not corroborated by his only witness Kwabena Bonsu.
A witness may be a truthful witness and his credibility may be beyond reproach by any standard; but his opportunity for acquiring the facts about an incident may be so limited, his perception so blurred by circumstances, that he may be incapacitated from acquiring correct and accurate knowledge of the facts; in those circumstances, despite his veracity, the facts the witness relates, may be nothing more than an honest mistaken account of the incident. Thus, as the learned judge pointed out, two persons being engrossed in a bitter quarrel, each concerned primarily with finding all the insulting words he could use which would hurt his adversary can hardly be expected to take such meticulous account of the words of insult rained against him by his opponent, as to be able afterwards to relate them correctly. Indeed, so tidily were the alleged words related in evidence, that they do not follow the logical sequence of the incident, with the result that they were so disjunctive that together they cannot make sense to a reasonable person. In such a case no court will be justified in founding a decision upon the plaintiff’s account unless it can find substantial corroboration from a truthful independent witness, though as a general rule of law corroboration is not required in such cases. The only person whose evidence tended to corroborate the plaintiff was his cousin and driver Kwabena Bonsu; but he did not impress the court as a truthful witness; consequently, the court was obliged to reject the plaintiff’s evidence. This in our view the court was justified in doing.
It was further submitted that the learned judge erred in holding that the evidence of the defendant’s first witness corroborated the evidence of the defendant, and therefore the balance of probabilities is in his favour. This submission begs the question; the onus was upon the plaintiff to prove that the defendant spoke and published the words he complained of; he failed to discharge that onus, and that should be the end of his case. It is immaterial whether or not the defendant succeeded in satisfying the court as to the words he alleged he uttered, there is no onus upon the defendant in respect of that issue.
We are satisfied that the learned judge of the High Court dealt with the case in the proper way, and came to the right decision. It is for these reasons that we dismissed the appeal.
DECISION
Appeal dismissed
N.A.Y.
