SOGBAKA vs. TAMAKLOE [1973] 1 GLR 25

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.

(3) Lane v. Willis [1972] 1 W.L.R. 326; [1972] 1 All E.R. 430, C.A.

(4) Edmeades v. Thames Board Mills Ltd. [1969] 2 Q.B. 67; [1969] 2 W.L.R. 668; [1969] 2 All E.R.

127; 113 S.J. 88; [1969] 1 Lloyd’s Rep. 291, C.A.

(5) Kwami v. Quaynor [1959] G.L.R. 269, C.A.

(6) Bonsu v. Forson [1962] 1 G.L.R. 139.

NATURE OF PROCEEDINGS

APPEAL against the judgment of the district court awarding damages to the plaintiff for slander. The facts are sufficiently set out in the judgment.

COUNSEL

Nutsugah for the appellant.

W. T. Doku for the respondent.

JUDGMENT OF FRANCOIS J.

The plaintiff brought an action against the defendant in the District Court, Keta, for slander. The objectionable words used by the defendant and the subject of the plaintiff’s complaint were “thief,” “useless man,” “non-native of Anloga interfering in the affairs of the town.”

The plaintiff recovered judgment which this appeal assails. On the facts it cannot be seriously challenged that the objectionable epithets were employed by the defendant against the plaintiff. The issue however to which I have given anxious reflection is whether the epithets were mere vituperation or vulgar abuse, which should neither attract damages nor evoke action. I am impressed by the fact that the words were spoken at a meeting where the defendant’s accounts were being scrutinized and that hot words in the heat of emotion could be expected in

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the circumstances. Under the common law no action for slander lies for mere words evoked by heat or passion or for mere vulgar abuse. The contrary is the customary law. See Sarbah in his Fanti Customary Laws (2nd ed.) at p. 113 and Dr. Danquah in the introduction to his Cases in Akan Law, p. xxiii who are quoted extensively in Attiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported; digested in (1969) C.C. 149.

It seems therefore to some extent material to ascertain whether the suit is to be determined under customary law or the common law. Following Attiase v. Abobbtey (supra), I am of the view that a party need not elect which law he is proceeding with. If it appears on the consideration of the whole facts that the law applicable is customary law it should prevail. I have considered the criticism of Attiase v. Abobbtey on this method of resolving the applicable law, contained in Nkrumah v. Manu [1971] 1 G.L.R. 176. I do not think in principle such a criticism is well founded. Secondly, I feel that whereas I am bound by Attiase v. Abobbtey no such restrictions affect me with regard to the Nkrumah v. Manu case.

If I may borrow from judicial practice elsewhere, I would cite with approval the statement of Davies L.J. in Lane v. Willis [1972] 1 All E.R. 430 at p. 435, C.A. that it is undesirable for a lower court to criticise as wrong a binding authority of a higher court. In that case Lawson J.’s criticism of a judgment of Lord Denning M.R. in Edmeades v. Thames Board Mills, Ltd. [1969] 2 All E.R. 127, C.A. was condemned. And this is as it should be. I have always found it difficult to appreciate the reasoning which acclaims a decision as binding and authoritative and yet subjects it to criticism. The principle of stare decisis as I understand it, prohibits such public ventilation of dissent sometimes dragged to lengths of decrial. On this aspect, I would like to quote an observation of van Lare Ag.C.J. in the case of Kwami v. Quaynor [1959] G.L.R. 269, C.A. where the learned acting Chief Justice decried attacks on previous judgments of superior courts..van Lare Ag.C.J. said at p. 277, “I would not wish to be understood as agreeing with the obiter dicta in which the learned Judge unfortunately indulged when criticising the judgments which came under review by him.” If this rule is not strictly enforced the authority of a precedent may be whittled away by gradual and piece-meal judicial nibbling. The judge’s duty to allay doubts with positive decisions would then have turned to the creation and multiplication of doubts.

Lest I be accused of the same error let me hasten to plead in my defence that I am entitled to give reasons why I cannot follow a decision of a court of co-equal jurisdiction which is not binding on me. On the facts therefore I have come to a conclusion that customary law should be the decisive law applicable in these proceedings. The epithets used in my view therefore give rise to an actionable cause.

Again I must mention that even where the authorities talk of vulgar abuse not being the subject of an action for slander at common law they

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confine themselves to an exchange of words or a slanging match in vituperation. This was not the case in the instant appeal. The facts show that one party and one party only delivered the stinging blows. Reverting to the Nkrumah v. Manu case again, I do not accept the ex cathedra pronouncement that insults invariably flow from two persons in conflict. A person who smarts sufficiently from wounds to his self-esteem may decline from engaging in any fruitless banter and resolve immediately to seek redress at court. Instances consequently abound where an insulted person accepts the injury with equanimity only to slap a writ on the wrong-doer later. Every case depends on its particular facts. In this instant case there is not a tittle of evidence that the plaintiff was dragged into any vulgar harangue. Indeed apologies would not have been demanded from the defendant if both parties were guilty of provoking each other.

Learned counsel for the appellant has urged that the exact words employed in the Ewe language should be reproduced; he further urges that the evidence shows conflicts in the words allegedly uttered. First I must record my inability to see the divergences criticised. But the submission that the actual words used in the particular dialect must be reproduced seems to me a counsel of perfection and too idealistic for general acceptance. This was a ground of appeal in the Attiase v. Abobbtey case aforementioned, but did not seem to impress the learned judges of the Court of Appeal. Counsel however cited no authority in support of this submission. It seems to me that if counsel’s argument should prevail a suitor would never be able to prove a defamatory action if the by-standers could only get a general gist of what was said but could not repeat the same verbatim being non-natives of the area. After all it is the impression of reasonable by-standers of what they understand by the epithets that matters. Again, as courts in this country decide actions of defamation without juries, the actual words used may have to be translated to the presiding judge who may not be able to appreciate any particular nuances. The reactions of persons who hear defamatory epithets used may depend on the prevailing circumstances. It is for this reason that in jury trials elsewhere, the judge only rules on the question whether the words are capable of bearing a defamatory meaning and leaves it to the jury to decide whether the words indeed are defamatory of the plaintiff. Thus it was emphasized in Bonsu v. Forson [1962] 1 G.L.R. 139 that the circumstances of a particular case and its particular setting are more relevant considerations.

I think my task would have been a more formidable one had the defendant recanted and been contritely apologetic. Then I would be faced with the delicate balance between customary law and common law remedies. In both it could be said that substantial amends by way of apology remove the sting from the attack on a person’s reputation and the plaintiff’s honour would then be vindicated. Here the defendant refused persistently to apologise. His refusal to recant even though urged by a chief and his own witness, suggests that whatever was said by him was not the idle gas of an emotionally heated person at an affray. It

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was a calculated and continuing act whose object was to injure. That cannot be excused away. On the whole therefore, I have come to the conclusion, as did the magistrate in the court below, that the plaintiff had been villified and he deserved compensation.

I do not think the award of ¢180.00 excessive considering the plaintiff’s standing in the community and the circumstances of the case. That is the price the defendant must pay for his villification of the plaintiff and his stubborn refusal to recant.

The appeal is consequently dismissed with costs for the plaintiff- respondent fixed at ¢20.00.

DECISION

Appeal dismissed with costs.

S.E.K.