Division: IN THE HIGH COURT, KUMASI
Date: 12 JUNE 1964
Before: SOWAH J
JUDGMENT OF SOWAH J
The plaintiff, a Lebanese businessman, was arrested at the frontier town of Paga by the Ghana Police while he was on his way back from Ouagadougou, Upper Volta to Tamale in Ghana and was taken to Navrongo Police Station. He demanded to see the warrant for his arrest and the reason thereof. The Navrongo police told him that they had no warrant but had received instructions to intercept and arrest him and to escort him to Tamale. The police, it appeared, had either no means of transport or a driver. The plaintiff therefore had to telephone a friend, one Moutrage, who gave evidence in his favour. Mr. Moutrage arrived from Bolgatanga to Navrongo and was allowed to drive the plaintiff in plaintiff’s own car to Tamale under a police escort who was also lodged in the car.
Upon arrival in Tamale he was informed that the defendant company had made a complaint against him for an alleged fraud. Even though the police knew that the plaintiff had a business and relations in Tamale, they refused to give him bail and kept him in custody overnight and he was released on bail at about 11 a.m. the next morning. Assistant Superintendent of Police Ayiretey was the police officer in charge of the case and when asked why the plaintiff was kept in custody in view of his own knowledge that the plaintiff had a business in Tamale he could only say that he received instructions from his senior officer. I consider the conduct of the police in this respect most oppressive and an abuse of their powers.
The plaintiff, as said before, told the court that upon his arrival at the Tamale Police Station he was informed of the nature of the complaint against him. He was positive no letter was read to him. In this he was also supported by Moutrage the man who drove him to the police station at Tamale. The gist of the complaint was that he had defrauded the defendant company of the sum of £G2,000 which was an advance given to him to supply sand, stone and gravel and that upon receipt of this advance he never supplied any of the items and made away with their money. The plaintiff denied this allegation and informed Ayiretey that the advance was in respect of a business transaction between himself and the defendant company and that he was in a position to show that he had in fact supplied some sand, stone and gravel. He compiled certain accounts which appeared to show that he had supplied sand, stone and gravel to the value of £G1,458 8s. The police became satisfied that no offence had been committed and
his passport which was seized from him on the date of his arrest was released to him on 9 February-four days after his arrest.
The complaint made to the police was contained in a letter addressed by the defendant company dated 1 February 1963. The said letter was pleaded in full in paragraph four of the statement of defence. As a result of these events the plaintiff instituted this action claiming £G6,000 damages for libel, £G3,000 damages for wrongful arrest and £G6,000 damages for false imprisonment. In respect of the libel the plaintiff pleaded in paragraphs two and three of his statement of claim as follows:
“2. On 1 February 1963 the defendants falsely and maliciously wrote and published to the Assistant Commissioner of Police, Tamale the Chief Superintendent of Police, Mr. Kpovie of Tamale, Detective Inspector of Police Bempong of Tamale, and to other persons in the police service, Tamale of the plaintiff; and of him in the way of his said business inter alia the words following: ‘In regard to the above transaction we gave him an advance of £G2,000 but immediately this advance was lent this man has sold his premises, trucks including other properties and proposes going on leave … Under the circumstances we shall be pleased if you will arrange to get hold of him before he leaves Ghana for good so that we can recover this amount of which the sum of £G800 will be towards income tax.’
3. By the said words, the defendants meant and was understood to mean that the plaintiff was indulging in sharp business practice and attempting to defraud the defendants and that he owes a debt and cannot or neglects to pay same.”
The defendants do not deny that they published of the plaintiff the matters complained of, indeed they set out in full the whole of the letter including the portion alleged to be offensive and libellous; but have set up the defence (a) of justification, (b) of privilege and (c) of a total denial that the letter was defamatory.
I propose to deal first with the issue whether or not the letter as it stood is defamatory. The letter for the most parts deals with the facts, most of which the plaintiff admitted but then it went on “we have had rumours that this man has liquidated his business and proposes going to establish in Ouagadougou or somewhere else. At the same time we have also learned from reliable sources that this gentleman would be returning from Ouagadougou any day from now and will be leaving Ghana, thereafter for good in which case it will be difficult for you to get him.” There can be no doubt that the interpretation a reasonable man will put on this letter is that this man owes debts and refuses to pay and further that he intends to run away without paying the debts. I consider that the innuendo pleaded in paragraph three of the statement of claim is not far- fetched and is capable of being spelt out of the passage quoted. The plea that the letter is not defamatory fails.
The second plea of justification must also fail. It is immaterial in a defamatory letter whether the matters complained of were rumours or not. If the plea of justification is set out it must be proved. The defendant must not only show that it was true he heard a rumour but must also prove the contents of the rumour true and correct. The defendants were not able to prove the correctness or truthfulness of the contents of the alleged rumours. They tried to justify those allegations by giving evidence that the plaintiff must have himself given the impression by selling his houses, some of his business assets and by his frequent travels to and from Ouagadougou from Tamale. They may be impressions which any reasonable man may gather
but that is not enough in a defamatory matter where the plea of justification is pleaded. To establish such a plea the allegation must be proved to be substantially true, if not the plea fails.
The third plea of the defence is that of “qualified privilege.” In Adam v. Ward1 Lord Atkinson said as follows:
“. . . a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”
It is necessary to examine some of the facts leading up to the complaint. On 27 July 1961 the defendant company made a payment of £G2,000; the plaintiff says that it was not an advance but part-payment for sand, stone and gravel already supplied and that when he approached the managing director for accounts and payment the managing director said he was busy. On this issue I prefer the evidence of the defendant company, since the plaintiff was compelled to admit that the compilation of a statement of account was not the duty of the managing director. Mr. Quagraine who was present at the time said that after the discussion between the plaintiff and the defendant company’s managing director in Arabic he was told to give the plaintiff an advance against the supply of sand, stone and gravel.
The plaintiff about a month or so after the advance sold his trucks the means by which he could supply the sand, stone and gravel. He stated that the defendant company’s engineer stopped him from supplying the sand, stone and gravel. The engineer who was then called by the defendant company denied that he ever stopped the plaintiff. The work on the army barracks had just started and had about two years to go. It is impossible to accept the plaintiff’s story that he was stopped especially after the defendant company had given him an advance of £G2,000. I reject the story that he was stopped and hold that he voluntarily stopped the work and sold his vehicles.
The defendant company through the managing director and through Mr. Quagraine endeavoured to get the plaintiff to go into accounts as by their system of accounting, they could only know how much gravel, sand and stone had been supplied when the plaintiff produced his waybills for verification. The waybills only contained the names of drivers and the lorry numbers, the names of the suppliers were not shown.
The plaintiff for some reason or the other would not go into accounts though he had been contacted by these gentlemen; the net result was that £G2,000 advance was outstanding against the plaintiff in the books of the defendant company. The defendant company then alleged that they heard rumours of the plaintiff’s intention to liquidate his business in Tamale and to settle in Ouagadougou. They were therefore obliged to report the matter to the police as they then considered that they had been defrauded.
From the conduct of the parties analysed above I am of the view that the defendant company bona fide believed that they had been defrauded though that belief was wrong in law, since the relationship between the parties was contractual and the remedy should have been an action for the recovery of the advance. For the purposes of the case it does not matter whether their view of the relationship existing between them is wrong. The defendant company had an interest to protect their money and by reason of the view they had in good faith taken that they had been defrauded they were entitled to report the matter to the police and the police had a duty to receive the report.
Applying the test of Lord Atkinson in Adam v. Ward (supra) and also in Toogood v. Spyring,2 I hold that the communication was privileged; the burden therefore shifted on to the plaintiff to prove express or actual malice. The only evidence he could adduce was an alleged letter to the Attorney-General dated 27 June 1963 in which the defendant company accused the police of not prosecuting their case against the plaintiff. I am of the view that the letter in fact showed the opposite; it showed that the defendant company in good faith believed they had been defrauded and were making a complaint to the right quarters, to an authority who could impartially investigate not only their complaint but also the conduct of the police. The plaintiff has failed to prove express malice and I must hold that the defence of privilege succeeds.
If I had come to the conclusion that the plaintiff’s claim succeeded, I would have awarded very nominal damages under this head for the reason that the plaintiff confessed in court that he did not know of this defamatory letter and had not read it before the abortive hearing in Tamale; the first time he saw the letter was in court. It is quite obvious to me that he had not given instructions for a writ to be issued concerning the libellous matter and it makes one wonder how this particular claim came to be made. In this respect I do not consider Mr. Ayiretey, Assistant Superintendent of Police, a witness of truth when he stated he read the letter to the plaintiff.
But this is not the end of the matter. The plaintiff as said before, was arrested on 5 February. The arrest no doubt was wrongful, the plaintiff had committed no offence known to our law and after the arrest, had been conveyed in his own car and then detained overnight. The defendant company admit that they made the report but say that the police exercised their discretion in arresting the plaintiff and that they were not to blame. They say that no agent of the company was present to direct the arrest.
The issue here is whether the police in arresting the plaintiff exercised their own discretion or whether they acted upon the instructions or at the request of the defendant company. It is therefore not only necessary to consider the evidence of Mr. Ayiretey but also the letter the subject-matter of the complaint; the last paragraph of the letter reads:
“Under the circumstances we shall be pleased if you will arrange to get hold of him before he leaves Ghana for good so that we can recover this amount out of which the sum of £G800 will be towards income tax. This failing, will not be possible and the amount involved will only have to be written off from our books . . .”
In examination-in-chief Ayiretey said as follows concerning the arrest:
“I knew Elias Hassan before the report was made, I knew he had a business in Tamale, about the time I caused him to be arrested. At the time we arrested Hassan we had not investigated the matter thoroughly. I acted on the contents of the letter; it was indicative that Hassan was trying to leave Ghana.” In cross-examination he said as follows: “I exercised my discretion on reading the letter and authorised the arrest. Kassardjian was nowhere near to direct the arrest. When Hassan was arrested I exercised my discretion that Hassan be kept in custody.”
It appears to me that the answers are irreconcilable for Ayiretey cannot both act on the contents of the letter which authorised him to arrest the plaintiff and also exercise his discretion in the circumstances of this case. Indeed the impression I formed of this police officer is not favourable and that impression was gathered from the answers he gave. In the course of cross-examination, counsel gave him an opportunity to correct an answer he had given concerning the offensive letter but he stuck to his original answer, though the plaintiff and his witness had denied that the letter was read over to the plaintiff.
It appears to me that the answer given by Mr. Ayiretey in examination-in-chief approximates to the truth namely that he acted on the contents of the letter. He was not speaking the truth when he stated he exercised his discretion; I do not even think that he stopped to consider whether or not an offence had been committed before causing the arrest of the plaintiff. He did exactly what the defendant company had directed or authorised or requested him to do, namely to arrest the plaintiff.
Learned counsel for the defendant company cited numerous authorities to show that if a person makes a complaint to the police and the police in the exercise of their discretion arrest the person against whom the complaint is made the person making the complaint will not be liable in an action for wrongful arrest and false imprisonment. It is a correct statement of the law. But in my view the defendant company went further, they requested the arrest of the plaintiff so that they could get the advance back and the police did exactly the same. In the circumstance I hold that the arrest and imprisonment were wrongful and unlawful.
Damages in this respect are awarded as an atonement and in compensation for the deprivation of one’s liberty for however short a time and in vindication of one’s honour which is certainly tarnished by such arrests. If of course any pecuniary loss flows directly from such deprivation of one’s liberty the person responsible for the arrest, if held liable, must make good the loss.
The stories that the plaintiff lost a business deal in Ouagadougou or that he had to move from Tamale to Kumasi because of the arrest or libel are fanciful stories and cannot be true. The plaintiff himself admitted that his income which had been £G3,000 per annum from 1959 to date had not diminished, in any case he had never compiled any accounts to know if he in fact lost any money.
In all the circumstances I consider £G500 damages adequate to compensate the plaintiff for his injured feelings, for loss of any reputation, dignity and honour occasioned by the wrongful arrest and false imprisonment. The plaintiff will have his costs assessed at 50 guineas.
DECISION
Judgment for the plaintiff.
N. A. Y.
