Division: IN THE HIGH COURT, KUMASI
Date: 20TH MARCH, 1959.
Before: MURPHY J.
Judicial proceedings—Objection taken by accused to panel member—Alleged slander by objector—Civil action by panel member contrary to “justice, equity and good conscience.”
HEADNOTES
Kwadwo Dei was one of the accused persons in a certain case before the Mampong Native Court. Kofi Pong was one of the panel members. At the proceedings Dei objected to Pong’s being one of those to hear the case, because (as he said) it was Pong who had “arrested” his (Dei’s) sheep and goats at Kofiase, and had given them to the Kofiasehene for sale. Pong proceeded to sue Dei in the Mampong Native Court for £100 damages in respect of this allegation, which he said was defamatory. That Court found that Dei had made an allegation against Pong which had not been substantiated, and it awarded £10 damages.
Dei appealed to the Magistrate’s Court at Mampong, which upheld the trial-Court’s decision.
Dei took a second appeal to the Divisional Court, Kumasi (Civ. App. No. 13/1958).
Held:
(1) that it is contrary to “justice, equity and good conscience” that an accused person should lay himself open to a civil action by reason of his taking an objection of this kind at his trial;
(2) that if limits of propriety are exceeded by the objector, the case can be adequately dealt with by statutory provisions against contempt and false evidence.
Obiter:
(1) it is difficult to see how the words complained of could be said to be defamatory;
(2) Native Courts cannot be expected either to understand or to administer the English law of defamation;
(3) though special damage be not proved, no objection could be taken to the award of a small sum for slander.
JUDGMENT OF MURPHY J.
(His Lordship stated the facts and proceeded): –
I do not consider there is any substance in the submission that this action, being one for slander, should have filed because there was no proof of special damage. Under section 9(a) of the Native Courts (Ashanti) Ordinance native courts are charged to administer native law and custom. They can scarcely be expected to understand, let alone to administer, the intricacies of the English law of defamation. Other things being equal, in my view no objection could be taken to the Court’s awarding a small sum to the plaintiff to compensate him for injury to his reputation.
However, this case must be considered in the light of what was in fact said by the defendant, and of the circumstances in which the words were spoken. In parenthesis, I would say that I find it difficult to see how the words complained of could be said to be defamatory.
But a more important consideration is that the words complained of were words spoken in the course of a judicial proceeding. As I have already indicated, one cannot apply English law to this matter, but under section 87(1) of the Courts Ordinance one must be governed by the principles ofjustice, equity and good conscience. It does not seem to me to be in accordance with these principles that an accused person should lay himself open to a civil action by reason of his taking an objection of this kind at his trial. Admittedly there must be limits to what the accused can properly say in such circumstances. But, if these limits are exceeded, sections 17 and 18 of the Native Courts (Ashanti) Ordinance, which deal respectively with contempt of court and false evidence, make adequate provision for dealing with such a case.
DECISION
For these reasons I allow the appeal, set aside the judgments of both the lower courts, and enter judgment for the defendant. The appellant is allowed his taxed costs in all three courts, with five guineas allowed for counsel in this Court.
