NKRUMAH v. ATAA [1972] 2 GLR 13
HIGH COURT, SUNYANI
Date: 27 JANUARY 1972
Before: OSEI-HWERE J.
CASES REFERRED TO
(1) Colt Industries Inc. v. Sarlie (No. 2) [1966] 1 W.L.R. 1287; [1966] 3 All E.R. 85; 110 S.J. 468;
[1966] 2 Lloyd’s Rep. 163, C.A.
(2) Re a Debtor; Ex parte Debtor (No. 490 of 1935) [1936] Ch. 237; 105 L.J.Ch. 129; 154 L.T. 44; 52
T.L.R. 70; 79 S.J. 839.
(3) Kay v. Goodwin (1830) 6 Bing. 576; 130 E.R. 1403, C.A.
(4) Ampong v. Aboraa [1960] G.L.R. 29.
(5) Atiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 149.
(6) Flint v. Lovell [1935] 1 K.B. 354; 104 L.J.K.B. 199; 152 L.T. 231, C.A.
(7) Davies v. Powell Duffryn Associated Collieries Co., Ltd. (No. 2 [1942] A.C. 601; [1942] 1 All E.R.
657; 111 L.J.K.B. 418; 167 L.T. 74; 58 T.L.R. 240; 86 S.J. 294, H.L.
(8) Amoah v. A. Lang Ltd.,Court of Appeal, 28 July 1969, unreported; digested in (1969) C.C. 147.
(9) Wankyiwaa v. Wereduwaa [1963] 1 G.L.R. 332.
NATURE OF PROCEEDINGS
APPEAL from a decision of a district court magistrate in which the respondent was awarded N¢200.00 damages for defamation.
COUNSEL
W. Y. Oppong for the appellant.
Dr. Ankama for the respondent.
JUDGMENT OF OSEI-HWERE J.
This is an appeal against the decision of the District Magistrate Grade II, Goaso, wherein judgment was entered in favour of the plaintiff-respondent (hereinafter called the plaintiff) on her claim for defamation and N¢200.00 damages together with N¢7.50 costs awarded against the defendant-appellant (hereinafter called the defendant). The endorsement on the plaintiff’s summons is as follows:
(1) That about 5.30 p.m. yesterday, the 7th day of March, 1971, at M.T.C. quarters-at Mim and before
many people the defendant maliciously and falsely made allegation against plaintiff that when he
(defendant) arranged plaintiff to spend a night with another man, plaintiff passed water on bedsheet
on which plaintiff slept with the man and also spoiled the same bedsheet with water from her
(defendant’s) vagina.
This allegation made against the plaintiff by defendant has putting [sic] plaintiff into disgrace and
laughing stock and has also defamed plaintiff’s good name and reputation in the public. Plaintiff therefore wants the defendant to point the man who defendant alleged slept with the plaintiff and also show where and when plaintiff did commit such disgraceful act.” The brief facts of the case are that the plaintiff was passing by when the defendant called her. When she got to the defendant he made some [p.16] of [1972] 2 GLR 13 derogatory remarks about her brother’s marriage to the woman the defendant claimed is his niece. The plaintiff went home and brought the brother’s wife to ascertain whether the defendant was her relation.
She denied any relationship between them. The plaintiff then went and brought her brother to listen to what remarks the defendant had made about him and when they got to the defendant he is alleged to have uttered the following words, “Ataa you are not civilised; I thought as you come from Kumasi you would be civilised, not knowing you are not civilised at all.” These words sparked off some altercation between the plaintiff and the defendant during which the defendant is alleged to have uttered the words complained of against the plaintiff.
The defendant admitted that he met the plaintiff and that upon the remarks he made (of which the
defendant gave a different version) the plaintiff brought in her brother and abused him saying he was a useless man. The defendant, thereupon, asked the plaintiff whether she would like it if he were her
husband. It is alleged that the plaintiff replied that the defendant’s room smells to which the defendant retorted that it was so because the plaintiff had passed the night on his bed and had urinated on the bedsheet without washing it. The defendant admitted that he swore the great oath of the Ashantis that if the plaintiff should sue him he would point out to her the man who slept with her in his (defendant’s) room. When the defendant was challenged in court to point out the man who had sexual intercourse with the plaintiff he replied that it was himself. On the evidence before the court the trial magistrate found for the plaintiff and entered judgment for her. The defendant challenged the judgment by filing three grounds of appeal and three supplementary grounds of appeal. The grounds of appeal are as follows:
(1) That the judgment is unsupportable having regard to the evidence.
(2) That the judgment is unconscionable and contrary to natural justice.
(3) That the magistrate failed to appreciate the issues before him and thereby incapacitated himself
from resolving them.
And, his supplementary grounds of appeal are also as mentioned hereunder:
(1) The plaintiff-respondent failed to prove the ingredients constituting defamation at common law and therefore the magistrate was wrong in entering judgment in her favour.
(2) As there was evidence that the words attributed to the defendant were uttered in heat and in anger, the magistrate erred in law in holding that the plaintiff could successfully bring an action in
defamation based on those words.
(3) That the damages awarded are unreasonable. [p.17] of [1972] 2 GLR 13
Counsel for the defendant argued first paragraph (3) of the grounds of appeal and submitted at the
conclusion of his argument that this ground of appeal inferentially included paragraph (1) of the
supplementary grounds of appeal. Counsel’s argument under this ground postulates that by virtue of the Courts Decree, 1966 (N.L.C.D. 84), para. 64 (1), r. 6, an issue should be determined according to the common law unless the plaintiff is subject to any system of customary law and claims to have the issue determined according to that law. When this suit came before the trial court for determination, N.L.C.D.
84 was still operative and as the plaintiff failed to indicate which system of law should apply the common law applied. The magistrate, so argues counsel, did not indicate in his judgment that he was applying the common law. If he applied the common law then he should have satisfied himself that certain ingredients should have been fulfilled. What the trial magistrate did was only to review the evidence and to hold that the defendant was liable without assigning any reasons. Counsel submitted, therefore, that the trial magistrate erred in not apprising himself of the ingredients the plaintiff ought to have established in sustaining an action for slander under the common law and that the judgement is, therefore, bad in law.
Counsel for the plaintiff, whilst conceding that even though the common law applies in cases where the plaintiff has failed to select the customary law to determine his claim, submitted that the law as it is now should apply to this appeal. That law, counsel argues, is as provided in the Courts Act, 1971 (Act 372), which came into effect on 22 September 1971, when this appeal was still pending. Counsel further argued that even though at the time of the issue of the “summons” and the subsequent trial of this case the provisions of paragraph 64 of N.L.C.D. 84 applied yet by reason of the repeal of N.L.C.D. 84 by Act 372 those provisions will no longer apply to the substantive issue which has been kept alive by lodging an appeal. Consequently, by rule 5 of section 49 (1) of Act 372 the law applicable now to the substantive issue before the court irrespective of when the writ was issued, is the customary law. It is eminently desirable, counsel argues, that this should be so since the rule quoted above is intended to cure the absurdity apparent in paragraph 64 of N.L.C.D. 84 that where two Ghanaians lock horns in a lawsuit and they fail to specify which system of law should operate then the court should import a foreign law. Rule 5 of section 49 (1) of Act 372 is as follows:
“Subject to the foregoing Rules, the law applicable to any issue arising between two or more persons shall, where they are subject to the same personal law, be that law; and where they are not subject to the same personal law, the Court shall apply the relevant rules of their different systems of personal law to achieve a result conformable to natural justice, equity and good conscience.”
[p.18] of [1972] 2 GLR 13 With all due deference to learned counsel for the plaintiff I think he argued under some misconception when he said that the substantive issue, by this appeal, has been kept alive. A judicial decision, otherwise final, is not the less so merely because it is appealable. If it is incapable of revision by the court which pronounced it, it is final in that court and it is wholly immaterial that it is capable of being rescinded or varied by some other court invested with competent appellate jurisdiction in that behalf. In Colt Industries Inc. v. Sarlie (No. 2) [1966] 3 All E.R. 85 at p. 86, C.A. Lord Denning M.R. affirmed this principle when he said:
“It is well established that, even though a judgment is subject to appeal, or under appeal, it is still final and conclusive so as to enable an action to be brought on it. That was clearly stated in Nouvion v. Freeman (1889) 15 App. Cas. 1.” If the finality of a judgment, even though under appeal, is settled, then, a fortiori, the conclusiveness of the issues on which the judgment is founded cannot be doubted. After the submissions for both sides had closed the plaintiff’s counsel invited the court to further consider that an appeal is a re-hearing and as such the present state of the law should apply to the appeal. Again, he argued that if this court were to remit the case for re-trial the law that will apply will be the customary law as laid down in rule 5 of section 49 (1) of Act 372. Whenever an appeal is said to be “by way of re-hearing” it means no more than that the appellate court is in the same position as if the re-hearing were the original hearing, and hence may receive evidence in addition to that before the court below, and it may review the whole case and not merely the points as to which the appeal is brought, but evidence that was not given before the court below is not commonly received. The words also indicate that the appellate court may also consider what
facts have occurred since the trial, and what relevant change has been made in the law. But in the exercise of its power to consider changes in the law since the trial, the appellate court will apply legislation, since enacted, which is sufficiently retrospective, and which extends to pending proceedings or gives new remedies. It cannot, however, determine the substantive rights of the parties by applying subsequent legislation which is not retrospective. See Re a Debtor; Ex parte Debtor (No. 490 of 1935) [1936] Ch. 237, C.A.
The general principle is that an enactment which is repealed is to be treated, except as to transactions past and closed, as if it had never existed. See Halsbury’s Laws of England (3rd ed.), Vol. 36, p. 469. This general principle was affirmed by Tindal C.J. in Kay v. Goodwin (1830) 6 Bing. 576 at p. 583 as follows:
“I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.” [p.19] of [1972] 2 GLR 13 Our Interpretation Act, 1960 (C.A.4), now gives statutory backing to this general principle of the common law. By section 8 (1) of the said Act the following provisions are stated:
“8. (1) The repeal or revocation of an enactment shall not– (a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or (b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.” The force of these provisions make the plaintiff counsel’s submissions, though attractive, evanescent.
I hold that the law applicable in this suit is the customary law. I come to this conclusion, however, upon grounds other than what the plaintiff’s counsel has advanced. The weight of our judicial authority supports the view that in a slander suit between two persons subject to customary law, the law applicable is the customary law: See Ampong v. Aboraa [1960] G.L.R. 29 and also Atiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 149 which approved Ampong v. Aboraa.
Our learned textbook writers, Sarbah in his Fanti Customary Laws (2nd ed.) at p. 113 and Danquah in the introduction to his Cases in Akan Law, p. xxiii are agreed on the content of this customary law of slander which is that 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.
But what, it may be asked, is the answer to the proviso to N.L.C.D. 84, para. 64 (1), r. 6 that the plaintiff must claim the customary law as the system of law applicable? In my opinion it is not necessary that the claim should be made specifically, as by giving notice of it in the writ or summons or in the statement of claim. What the court concerns itself with is the substance of the case not the mere form. Accordingly, the wording of the summons, the absence of any pleadings or the nature of the course of the proceedings will indicate that the plaintiff has selected the customary law. It is well known that before 1891 the [p.20] of [1972] 2 GLR 13 common law required special damage to be proved where the defamatory words imputed unchastity to a woman. This state of the law was thought to be defective and it was remedied in 1891 by the Slander of Women Act, 1891 (54 & 55 Vict., c. 51), s. 1, which enacted that “words spoken and published … which impute unchastity or adultery to any woman or girl, shall not require special damage to render them actionable.” This enactment obviously brought the common law on the same footing with the Ghanaian customary law of defamation. The Slander of Women Act not being a statute of general application cannot apply to Ghana. The result is that if imputations of immorality are made against a Ghanaian
woman she can only successfully have recourse to the common law, by proving damage. This absurdity was lamented by the Court of Appeal in Atiase’s case where it said:
“If the English found the common law of defamation unsatisfactory as to imputing unchastity in a woman, and amended the same as far back as 1891, what justification have we in Ghana to be so retrogressive and adhere to the common law on the subject when we would have been bound by the English statutory amendment had the amending Act been passed not in 1891 but earlier, i.e on or before 24 July 1874? We say what justification have we? None whatsoever.”
The above conclusion disposes of the main grounds of the defendant’s appeal. What is important to
consider is whether there is evidence to support the trial magistrate’s finding that the defendant published the words complained of against the plaintiff and whether, under customary law, they are defamatory of her. There is abundant evidence on record from all the witnesses before the court to support his findings under both heads. An appellate court is not entitled to reverse findings of fact made by a trial court unless those findings are not supported by the evidence. Again, where the evaluation of the evidence depends upon the credibility of witnesses, it is normally the trial court which saw and heard the witnesses which should decide which of the witnesses to believe. It is only where it is shown that the trial court in assessing the credibility of a witness, omitted to consider evidence which discredits him that the appellate court will be bound to interfere: See Atiase v. Abobbtey (supra). In spite of the wrong conclusion the magistrate drew from the evidence of the defendant’s second witness the plaintiff’s case was otherwise established by the evidence before the court.
The last ground of appeal argued on the defendant’s behalf concerns the damages of N¢200.00 which counsel for the defendant-appellant considers as unreasonable. The award of damages is essentially discretionary in a trial court and provided that the trial court took all the circumstances of the case into consideration and properly directed itself on the law relating thereto (if any) the appellate court will not interfere with the award unless it is shown that it is so inordinately
[p.21] of [1972] 2 GLR 13 high or so ridiculously low as to amount to a wholly erroneous estimate of the damages: See Flint v. Lovell [1935] 1 K.B. 354, C.A.; Davies v. Powell Duffryn Associated Collieries Co., Ltd. (No. 2) [1942] A.C. 601 at pp. 616-617; Amoah v. A Lang Ltd., Court of Appeal, 28 July 1969, unreported; digested in (1960) C.C. 147. It is now settled beyond doubt that slander, according to native custom, is a civil wrong actionable at the suit of the person defamed and is properly redressible by a pecuniary award: See Atiase v. Abobbtey approving Wankyiwaa v. Wereduwaa [1963] 1 G.L.R. 332. In Atiase’s case the Court of Appeal made an observation that the essence for bringing an action for slander under customary law as also under common law, is to clear the plaintiff’s good name and not merely to make money and that so long as this principle of customary law is maintained, recanting a slander, that is, an unreserved withdrawal of the slander and all imputations made, with expression of regret, and matters which give satisfaction to an aggrieved person, and the fact that such publication of apology is or will be made, will be taken into consideration in assessing pecuniary damages. The defendant, in court, did not try to recant
the words nor did he show any sign of regret but instead he claimed that he had slept with the plaintiff on his bed and the plaintiff had urinated on it. A woman’s chastity is a jewel that adorns her character. For a man, without justification, to soil it in the manner the defendant did and additionally, to make her a laughing stock by saying that she wets the bed and also flatulates as she walks is to invite the condemnation of the court. In Ampong v. Aboraa (supra) the court made an ward of N¢100.00 damages.
Even though the defendant’s conduct demands some repressive damages which will not only vindicate the plaintiff’s conduct but hurt the defendant as well, the award of the maximum claim of N¢200.00 is, to my mind, excessive having regard to the customary law principle upon which award for damages is made.
I will, therefore, reduce the damages to N¢100.00. To this extent only of reducing the damages I dismiss the defendant’s appeal with N¢25.00 costs to the plaintiff.
Court below to carry out.
DECISION
Appeal dismissed.
Damages varied.
S.E.K.
