TUFUOR v. BENG [1963] 1 GLR 21

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 14TH JANUARY, 1963

BEFORE: APALOO, J.

CASE REFERRED TO

Danso v. Oteng (1956) 2 W.A.L.R. 167

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Circuit Court, Kumasi, on the 30th April, 1962, dismissing the plaintiff’s claim for damages for slander and false imprisonment.

COUNSEL

Asumadu Sakyi (with him S. Wiredu) for the appellant.

D. S. Effah for the respondent.

JUDGMENT OF APALOO J.

The facts of the case are singularly free from complexity and can be stated briefly. The plaintiff and defendant are farmers and owned cocoa farms contiguous to each other at Krofa. The defendant himself cultivated his farm while the plaintiff succeeded to a man whose name was given as Anyowuo. It appears that prior to the 5th November, 1960, there was some difficulty between them as to their exact boundary. On that day, in the plaintiff’s absence, the defendant gathered together the cocoa beans which were presumably on their disputed boundary. These he took to the police station at Juaso and complained that the plaintiff had stolen his cocoa. The plaintiff was himself away in Kumasi. Upon his return, he was given an account of what took place in his absence. He in turn proceeded to the police station at Juaso. He was himself going to make a complaint against the defendant.

The plaintiff said as soon as he entered the charge office at Juaso, the defendant pointed him out to the police and charged that he was the person responsible for the theft of his cocoa. Routine police investigations were then put in train and the plaintiff said he was detained at the police station for five hours. The plaintiff said he met the defendant at the charge office but he was asked to retire while a statement was recorded

[p.23] of [1963] 1 GLR 21 from him. While he was in the process of making a statement to the police, the plaintiff said the defendant again publicly charged him with theft and said, inter alia, “A youngman like me I have planted my cocoa and you an elderly person had gone to steal some.” This, according to the plaintiff, provoked a rebuke from the police. The police after recording statements from the parties decided to view the farm. This was fixed for the 6th November. The parties reported at the police station at Juaso in the morning of that day and the plaintiff ran them there in his car. When the car reached Krofa, it was brought to a halt at the defendant’s request. The latter went to his house and returned with some members of his family and requested that they be permitted to join the car. The plaintiff said he refused and on so refusing, the defendant said, inter alia “You should be ashamed of yourself. You stole my cocoa and would not allow may relations to travel on your car. Have you planted cocoa before?” The plaintiff said the defendant finished this off by hooting at him, an act in which his relations joined. The plaintiff’s account of the incident was substantially corroborated by Police Constable Thomas Asante whom the learned circuit judge regarded as an independent witness and in whose evidence he expressed belief.

The defendant agreed that he collected the cocoa and took it with him when he complained to the police about the plaintiff. He said he did so in the plaintiff’s absence but did not attempt to reproduce the report he actually made. He said he later identified the plaintiff to the police as the person against whom he made his report. He denied completely that he used the words attributed to him by the plaintiff. In an unusually exhaustive recital of the case of both parties, and of counsel’s submission, the learned circuit judge stated what he conceived to be the issue as follows: (a) whether the plaintiff was imprisoned falsely as a result of the defendant’s conduct; (b) whether in fact the defendant published the words complained of; and (c) whether the words are actionable as being slanderous and defamatory. He held that the plaintiff was not falsely imprisoned as the result of the defendant’s conduct. On the second of the issues, he felt satisfied that the defendant published the words complained of but he held, by a process of reasoning which I have not succeeded in comprehending, that the claim for slander, like the claim for false imprisonment, failed. Against that judgment, the plaintiff appeals to this court on the ground that the learned circuit judge was in error inasmuch as he held that neither the case of false imprisonment nor slander succeeded. On the issue of false imprisonment, it was submitted on behalf of the plaintiff that the defendant made a positive accusation of theft against the plaintiff. It was said that the fact that the plaintiff was technically imprisoned by the police was shown by the fact that he had to be bailed out and that the defendant having pointed out the plaintiff to the police, the latter had no [p.24] of [1963] 1 GLR 21 alternative but to arrest him. Counsel naturally enough, felt difficulty in sustaining his argument in view of the now famous case of Danso v. Oteng1 and sought to distinguish it by contending that the defendant so influenced the police that the plaintiff was not released without bail.

Like the learned circuit judge, I am also of opinion that on the evidence, a case of false imprisonment was not made out. The defendant did no more than give information to the police. There is nothing in the evidence to lend the slightest colour to any suggestion that the defendant directed or authorised the police to detain the plaintiff. What the police did on the receipt of the defendant’s complaint and at the sight of the plaintiff was very clearly routine and in the exercise of their discretion. There is no basis for the contention that the defendant in any manner influenced the police in the performance of their duty. I think the plaintiff’s case on this aspect of the matter was particularly tenuous and was argued with manifest want of zeal or conviction by counsel for the appellant. I agree with the learned circuit judge that the case of false imprisonment fails. On the case for slander, in my judgment, the plaintiff presented a strikingly more formidable argument. This was fortified by a finding by the circuit judge that the defendant had in fact published the words of which the plaintiff complains. Those words imputed to the plaintiff the commission of the indictable offence of theft for which the plaintiff could be punished corporally without the option of a fine. The words proved to have been uttered by the defendant were, in their natural and primary meaning, defamatory of the plaintiff, and as I understand the law of slander, actionable per se. The learned circuit judge seemed to have thought differently and after finding that the defendant uttered the words complained of observed as follows: “But were the words actionable as slanderous and defamatory? The burden of proof is on the party who alleges that the words were understood in a meaning other than their natural meaning, and in that meaning were either defamatory or non-defamatory, as the case may be.” He proceeded to cite other legal dicta of which I am myself, with respect, unable to make anything. He then found himself able to conclude that the defendant was not liable to the plaintiff in slander. I cannot follow this reasoning and notwithstanding the great respect I feel for the judgments of the circuit court, I cannot help the observation that the learned circuit judge was confused in his mind as to the cases in which slander is actionable without proof of special damage. In my opinion, this is one of such cases and inasmuch as the learned circuit judge thought otherwise, I differ from him.

In this court, the learned circuit judge’s judgment on the issue of slander was defended on a ground miles apart from what must have been in the mind of the circuit judge. It was submitted on behalf of the defendant that the substance of the defendant’s complaint against the plaintiff was one of trespass not theft. It was urged that there was no imputation of

[p.25] of [1963] 1 GLR 21 the commission of a crime and, therefore, it was not slander actionable without proof of special damage. Counsel submitted that no special damage was proved and therefore the action failed. This argument is the product of counsel’s ingenuity but it ignores the plain words which were proved to have been uttered by the defendant. I must reject that argument and I do so unreservedly.

The defendant made, in paragraph six of his statement of defence, averments which amount to a plea of justification. He failed to make good that plea at the trial and made a bare denial of the plaintiff’s case. In this he was disbelieved. In my judgment the defendant made no valid answer to the plaintiff’s case on the charge of slander. In my opinion, the learned circuit judge was in error inasmuch as he failed to hold the plaintiff entitled to damages against the defendant. I hold him so entitled and will award him such damages as seems to me just and as the evidence warrants.

It seems to be common ground that the plaintiff is a man of some standing in his community. He seems to be a well-known farmer and combines farming with business. He said he is possessed of many farms and was not challenged on this. He succeeded a man whom the learned circuit judge considered was affluent and no doubt himself acquired some reputation for affluence. He also seemed to be literate and appeared to have been in business association with one Mr. Nassar. The defendant published this slander in the charge office and outside it. Its publication again at Krofa on the 6th November, was a wholly indefensible repetition of defamatory matter and was done in circumstances of some aggravation. The plaintiff on his part, appeared to have exercised considerable self-restraint. Taking all the circumstances into consideration, and bearing in mind that damages in this case should be compensatory and not penal, I assess damages in favour of the plaintiff against the defendant in the sum of £G150.

The judgment of the circuit court dismissing the claim for slander is set aside. For it, I substitute a judgment for the plaintiff against the defendant for the sum of £G150. The plaintiff will have the costs in this court assessed at 30 guineas and in the circuit court assessed at 35 guineas. Any costs paid pursuant to the judgment of the circuit court should be refunded to the appellant.

DECISION

Appeal allowed in part.

Judgment for the plaintiff for damages for slander.

J.D.