COURT OF APPEAL, ACCRA
Date: 25 MAY 1973
ANNAN JA
CASES REFERRED TO
(1) Attiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 149.
(2) Nkrumah v. Manu [1971] 1 G.L.R. 176.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Mensa Boison J. (unreported) in the High Court, Kumasi, in which he allowed the appeal of the respondent from a judgment of the District Court Grade II, Konongo, that awarded the appellant damages for having been slandered by the respondent. The facts are sufficiently set out in the judgment of Annan J.A.
COUNSEL
C B. K. Zwennes for the appellant.
No appearance by or on behalf of the respondent.
JUDGMENT OF ANNAN JA
The appellant won his claim for damages for slander in the District Court Grade II, Konongo, lost an appeal to the High Court, Kumasi, and then appealed to this court to re-establish the judgment of the trial court in his favour. The court dismissed his appeal and we now give our reasons. The claim was as follows:
“Plaintiff claims from the defendant damages of N03OO.OO for having falsely and maliciously published of and concerning the plaintiff at a public place at Praaso the following words to wit: ‘You are a slave. My ancestors bought your maternal ancestors as slave. Your maternal ancestors were bought with plantain as their price.’ Whereof the plaintiff was put in disgrace and public ridicule and contempt.”
At the trial the appellant gave evidence of the words he relied on to found his claim and he called three witnesses who confirmed his version of the matter. The respondent also gave evidence and called an equal number of witnesses.
For the purposes of this appeal it is unnecessary to go in any great detail into the facts of the matter, since the judgment appealed from was based squarely on matters of law. In this court argument by counsel for the appellant was limited to the issues raised in the additional grounds of appeal. These are also issues of law.
[p.368] of [1974] 1 GLR 366
The determination of the trial magistrate proceeded upon the basis that the action was determinable by the rules of customary law and he consequently settled the matter by the application of those rules. He found: “Concerning the words complained of the defendant did not challenge the evidence on record that the nature of those words, according to custom, sullied the reputation of the plaintiff and his family exposing them to be slaves and illegitimate members of the Asene clan to which the plaintiffs family assume to belong … such words, according to the evidence on record, were by customary law, slanderous and actionable per se.”
It seems clear to us that the tenor of the entire judgment conclusively demonstrates that the adjudication of the appellant’s claim proceeded upon the basis of customary law. It was that manner of determination of the case that formed the main basis of the challenge by the respondent of the judgment in the High
Court on appeal. In this judgment the High Court judge (Mensa Boison J.) formulated the main issue for determination as follows: “This is an appeal which once again raises the application of the Courts Decree, 1966 (N.L.C.D. 84), para. 64 (1), r. 6.”
Before giving his detailed consideration to rule 6 the judge summarily disposed of a subsidiary point raised by the respondent, namely, an issue of estoppel based on an arbitration award. He held that the matter before him was not the subject-matter of the arbitration. That determination naturally was not called in question before us by counsel for the appellant since the point was in his favour. We thought however that the judge’s summary disposal of the issue of estoppel may well have precluded him from giving adequate consideration to that matter and we are in some doubt whether his decision would have been the same, had he not taken the stand he did that there was nothing in that issue. However, having regard to the decision we have arrived at on the main issue that was determined in the High Court and which formed the bedrock of the appellant’s submissions before us, we consider it safe to let the matter of estoppel rest.
We turn now to the consideration of rule 6 of paragraph 64 (1) of N.L.C.D. 84. In the High Court the contention of the respondent was in substance that the trial court erred in deciding the case by customary law, in that the plaintiff, not having claimed to have his action adjudicated by customary law, the trial court was bound by virtue of rule 6 to adjudicate the action according to common law. Counsel added that if his submission was right then at common law the words complained of were not actionable without proof of special damage and since none was proved the appellant’s action had to fail. Counsel buttressed his stand with the further argument that if common law was the law applicable then the words complained of were not actionable since they amounted to mere abuse uttered in the heat of passion.
With regard to the issue of vulgar abuse the judge was of the opinion that the submission must be upheld. On this finding, with which we are
[p.369] of [1974] 1 GLR 366
in agreement, the only issue left for determination was the issue of choice of law, and that the judge determined against the appellant. He held that the trial magistrate erred in adjudicating the suit by customary law since he was obliged by rule 6 to apply the common law in the absence of any claim by the appellant to have his case determined by customary law.
In this court counsel for the appellant, Mr. Zwennes, argued his case on three grounds of misdirection in law, namely, that the High Court judge misdirected himself in law by:
(a) failing to apply the Ghana common law of defamation which embodies customary law;
(b) holding that the plaintiff s claim to have his case adjudicated by the customary law under N.L.C.D. 84, para. 64 (1), r. 6 was inadmissible as by implication it was not made “at the commencement of the action or at the trial”; and
(c) by disregarding the effect of evidence on the record that both the plaintiff and defendant had previously submitted part of the same transaction to customary arbitration and therefore impleaded that customary law.
Mr. Zwennes advanced a number of submissions in support of his argument, and dealt fully with two recent decisions of our courts in which rule 6 was considered. These cases are Attiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 149 and Nkrumah v. Manu [1971] 1 G.L.R. 176, a decision of the High Court, in which the trial judge considered Attiase v. Abobbtey and appears to have expressed doubts about that decision. Mr. Zwennes urged us to overrule Nkrumah v. Manu and to apply the decision of Attiase v. Abobbtey.
In Attiase v. Abobbtey the plaintiff ‘s claim was for damages for slander. The claim was heard in the local court. The plaintiff alleged that the defendant defamed her by calling her a prostitute and that she used her store not for selling but for practising prostitution. The decision of the trial local court in favour of the plaintiff was set aside by the circuit court on appeal both on the facts and on the law. Before the Court of Appeal that decision was challenged on the point of law that the circuit court had misdirected itself in law in holding that calling a woman a prostitute here in Ghana and accusing her of using her store for prostitution is not actionable per se. The circuit court judge had applied the rules of the common law in arriving at that decision. On this aspect of the decision of the circuit court, the choice of law aspect, the Court of Appeal had this to say: “The learned circuit court judge appeared to be very confused as to the law applicable to the case. It is quite clear from the directions he gave himself that he thought that the law applicable is the common law.” The choice of the law to determine the plaintiff s claim was held to be wrong since in the judgment of the court the law applicable is the customary law.
The decision in Attiase v. Abobbtey in terms of the law as it then was, clearly underlined the necessity for a decision on choice of law in a claim for damages for slander. What does not appear to be very clear from the
[p.370] of [1974] 1 GLR 366
judgment is the basis used by the court for its choice of the applicable law. After a consideration of the relevant part of the judgment we confess our difficulty in appreciating the true rationale behind the choice of the customary law as the applicable law in that case. We set down hereunder the significant passage from the judgment:
“Counsel for the appellant submitted however that the law applicable is the customary law. With that contention we are in entire agreement. The case is between two Ghanaians and the action was instituted in a local court which exercised jurisdiction under section 98 (1) (d) of the Courts Act, 1960 (C.A. 9). The subsection reads: ‘98. (1) The civil jurisdiction of a Local Court shall be as follows … (f) personal suits where the debt, damage or demand does not exceed £G100.’ Since subsection (1) (f) does not say, as does subsection (1) (a), (b) and (c) that the jurisdiction shall be exercised ‘where the law applicable is customary law’ the proper interpretation to be put to it is that in such personal suits, the law which the local court shall administer is both the common law and the customary law, as with any other court. Therefore since both the plaintiff and the defendant are subject to customary law, it must be presumed that the law applicable for the determination of their dispute is the customary law unless the contrary is shown. There is nothing to show the contrary in this case and the record of proceedings shows that the law applied by the trial local court is the customary law.”
The court then added:
“This then is a case where the plaintiff who is subject to customary law presented his claim under customary law; therefore even if the defendant had not been a person subject to customary law, the proviso to N.L.C.D. 84, para. 64 (1), r. 6 will cover the case. In Ampong v. Aboraa [1960] G.L.R. 29, Smith J. held that in a slander suit between two persons subject to customary law, the law applicable is the customary law. That in our view is a correct statement of the law.”
We have given this passage very careful consideration and in our view, if we may say so with the greatest respect, it does not in terms seek to pronounce on the correct application or interpretation of rule 6, although that rule appears to have been adverted to in passing, as a possible alternative to a rebuttable presumption of the applicability of customary law where “both the plaintiff and the defendant are subject to customary law.”
What we have been called upon to determine in the appeal before us is the true meaning and effect of rule 6. In this determination we do not think that Attiase v. Abobbtey offers us any assistance of any degree.
Taylor J. in Nkrumah v. Manu (supra) gave the issue considerable thought and we find great assistance in his consideration of the matter. After referring to the state of the law before 1960 and the Courts Act, 1960 (C.A. 9), he said at p. 187:
[p.371] of [1974] 1 GLR 366
“[B]y 1960 a new principle had come to stay, and this principle now contained in paragraph 64 of N.L.C.D. 84 continues unto this day to be the guiding light as its marginal note indicates in the ‘application of common law and customary law” in Ghana. I am not aware of any other guide . . .”
In our judgment a consideration of paragraph 64 of N.L.C.D. 84 and the history of that enactment conclusively shows that the rules embodied therein (which had been carried over unchanged from the previous Courts Act) were designed to substitute for the existing case law a new formulation of guiding principles for choice of law when an issue arises in civil proceedings, whether the common law or the customary law should be applied.
In our view, in terms of the law as it was before 22 September 1971, the date of assent of the present Courts Act, 1971 (Act 372], where in civil proceedings in a cause of action determinable by either the common law or the customary law an issue arises as to which set of rules should be applied, the court was bound to look to paragraph 64 of N.L.C.D. 84 for the choice of the applicable law and to obtain guidance from the principles enumerated therein and to no other body of rules other than the provisions of some other enactment. Nkrumah v. Manu (supra) was a claim for damages for slander in which the district court had awarded the plaintiff N08O.OO as special damages for having been insulted and defamed without just cause. All of the parties were Ghanaians. It was not disputed that during a heated quarrel the plaintiff was called a slave. Taylor J. came to this final conclusion at pp. 189-19O:
“The legal position therefore as I see it is that I must have recourse to only paragraph 64 of N.L.C.D. 84 to decide the law to apply in this case and in particular Rule 6 of paragraph 64 (1) and when I do this I find that in the appeal before me there is nothing on the record to show that the respondent claimed to have the issue determined according to customary law nor did she show that she is subject to any system of customary law and therefore the exception to Rule 6 of paragraph 64 (1) of N.L.C.D. 84 is clearly inapplicable. The five other rules are equally inapplicable. We are therefore left with Rule 6 of 64 (1) of N.L.C.D. 84 unaffected by its proviso and the inevitable legal implication is that the issue must be decided in accordance with the common law.”
We are in entire agreement with this statement of the legal position as to choice of law in an action for damages for slander in respect of cases decided during the currency of N.L.C.D. 84.
Having stated the position as to choice of law we now turn to a consideration of the issue of whether the choice of law rules were correctly applied to the facts of this appeal. The rule was that in an action for damages for slander, as indeed in any other action to which rules 1 to 5 of paragraph 64 (1) of N.L.C.D. 84 did not apply, the court was bound to determine issues arising in the course of the suit by the application of common law principles. The only exception to this rule is the case where
[p.372] of [1974] 1 GLR 366
the plaintiff is subject to any system of customary law and claims to have the issue determined according to that system in which case the general rule as to the applicability of the common law is displaced in favour of the system of customary law claimed by the plaintiff.
In the present case the trial court chose the customary law to determine the appellant’s case. The High Court judge rejected that choice and determined the case by the common law. That rejection was based on a finding that the appellant, as plaintiff, had not claimed to have the case determined according to any particular system of customary law. In our judgment the judge came to the right conclusion, since the appellant failed both in the court below and before us to establish that he had at the trial of the action, satisfied both conditions precedent for the displacement of the prevailing general rule that in action for slander the common law applies. That the appellant was subject to a system of customary law may safely be presumed without any real difficulty from evidence before the court. That he had claimed the benefit of the proviso did not appear from the record of proceedings. Mr. Zwennes was of the opinion that the appellant had done enough to demonstrate that he had claimed the benefit of the proviso. We respectfully disagree.
What then is a claim in terms of rule 6 and how and when may it be asserted in cases to which rule 6 applies? In our consideration of this aspect of the case we have not had the benefit of any judicial pronouncement on the matter and Taylor J. in Nkrumah v. Manu (supra) was silent on the point. Looking at the whole of paragraph 64 it seems clear that choice of law in that context depends mainly on four connecting factors, namely: status, agreement, intention and situs of land. Rules 1 to 5 of paragraph 64 (1) set out the various categories of cases in which these factors determine choice of law. Rule 6 is the odd one out. In the case of rule 6 there is an impersonal, mandatory and indiscriminate choice of law irrespective of status, agreement, intention or situs of land. Where, however, the two stated conditions precedent are satisfied the operation of the mandatory provision is held in abeyance. It is necessary therefore that when an action is governed by rule 6 a plaintiff who wishes to avoid the effect of the general rule should make a clear-cut and positive assertion that he does not wish his claim to be adjudicated in terms of the common law. The choice is that of the plaintiff, not that of the court, and must be made in clear and precise terms.
A claim then in terms of rule 6 must, in our view, be a positive demand or request by the plaintiff that his action be adjudicated by the system of customary law to which he is subject. Such a request cannot be said to arise by implication. In proceedings subject to pleadings the plaintiff s claim must appear on the endorsement of the writ or in the statement of claim. Where there are no pleadings such a claim may be made orally in court.
We are of the view that the plaintiff s claim if made orally must be made at the earliest possible opportunity open to him and this should normally be indicated clearly in his application for the issue of a summons
[p.373] of [1974] 1 GLR 366
on his claim and in any event before evidence is heard. Clearly a defendant to an action which would, but for the proviso to rule 6, be governed by the common law would be put in an unfair position if he were to be told, after battle had been joined, that a different set of rules, of which he had not had notice, were to apply. It seems to us that the purpose of these rules as to choice of law is to put the parties from the outset in a position to know which rules of law would apply to the case and to prepare for an adjudication on the basis of such rules. To enable one party to take his opponent by surprise would, in these circumstances, be contrary to the purpose of the enactment. Where therefore there are no pleadings in a case it is even more necessary that the defendant has a clear indication of the system of law in terms of which he has to make his defence to the action.
Applying these principles to his appeal we find that neither in the summons nor at any time in the course of the evidence did the plaintiff or his counsel claim to have the action determined by the system of customary law to which he is subject. The nearest approximation to such a claim was that part of counsel’s closing address where he said: “By custom, the words are defamatory, especially coming from an old lady of the family”. That statement did not comply with the rule as we understand it and cannot be relied upon as a claim in respect of rule 6. In the result we hold that none of the grounds of appeal avails the appellant, the industry of Mr. Zwennes notwithstanding.
We may observe that our statement of our views expressed herein was curtailed somewhat since these views would now appear to be largely of academic interest only, in respect, that is, of cases decided after the commencement of the Courts Act, 1971 (Act 372]. We observe that rule 6 of paragraph 64 (1) of N.L.C.D. 84 finds no place in the new formulation of choice of law rules in section 49 of Act 372. The new rule 6 appears to us to be basically different in scope and purpose from its predecessors.
Our present purpose is however limited to a consideration of the old rule and in terms of that rule this appeal must fail. We dismissed it accordingly.
DECISION
Appeal dismissed.
T.G.K.
