DIVISION: IN THE HIGH COURT, KUMASI
DATE: 5TH APRIL, 1963
BEFORE: APALOO J.
CASES REFERRED TO
(1) Mensah v. Quamina Attopi (1845) Sar. F.L.R.2
(2) Kwaku v. Addo (1957) 2 W.A.L.R. 306
(3) Quacoe v. Dadson (1958) 3 W.A.L.R. 396
NATURE OF PROCEEDINGS
APPEAL from the judgment of the Kumasi Circuit Court dismissing plaintiff’s claim for damages for
defamation.
COUNSEL
S. A. Gyimah for the appellant
D. S. Effah for N.Y.B. Adade for the respondent.
JUDGMENT OF APALOO J.
This is an appeal from the judgment of the circuit court which on the 20th April, 1961, set aside the
judgment of the magistrate’s court dated the 28th May, 1960. The latter judgment itself reversed the
judgment of the Kumasi East District Court delivered on the 2nd February, 1960, and restored the
judgment of the Juaso/Bompata Local Court which on the 13th November, 1959, awarded damages in
favour of the plaintiff against the defendant for insult.
The parties appear to be neighbours and lived together at Bompata. The plaintiff described herself as a
baker while the first defendant said she was a farmer. The evidence shows that they were, prior to October
1959, not on speaking terms. In that month, there was an incident between them caused by the alleged
disposal of faeces in the plaintiff’s dumphill by the defendant. This resulted in angry exchanges between
them and coarse language was used. The sequel to that quarrel was this action and a never-ending series
of appeals. This is the fourth appellate court to become seised of this matter.
The language which was alleged to have been used by the defendant is contained in the particulars of
claim and was so grossly obscene that counsel who argued the appeal before me fought shy of reading
them out. Not all of them were found to have been established. No court is contaminated by bad language
and I ought not to feel the sense of inhibition which both counsel seemed to have felt when it came to
reading aloud the words alleged to have been used by the defendant. What was proved was that the
defendant spoke and published of the plaintiff that “her vagina stinks.” The trial local court was satisfied
of this and awarded damages in the plaintiff’s favour. This judgment was reversed by the Kumasi East
District Court to which the defendant appealed. For reasons which were stated
[p.334] of [1963] 1 GLR 332
in the judgment of the magistrate which I wholly endorse, the magistrate’s court restored the decision of
the trial court but reduced the damages from £G20 to £G5. In sustaining the damages, the learned
magistrate said “I am satisfied from the record of proceedings that the first respondent abused appellant
concerning her private parts in terms that would be most objectionable to any self-respecting woman.” In
reducing the damages, the magistrate obviously took into consideration the fact that the words were
spoken in a heated moment.
As I said, this judgment was summarily reversed by the learned circuit judge to give cause for this further
appeal. The learned circuit judge gave as the reason for the allowance of the appeal the following: “I find
the words used by defendant-appellants if used at all, were used in a quarrel when plaintiff was also
abusing the defendant and therefore the words cannot ground an action in defamation.” Quite plainly, the
circuit judge decided this case by the well-known principles of the common law. That vulgar abuse
spoken in heat is a good defence to an action for slander by the common law is trite law and cannot be
controverted. What the trial circuit judge failed to give consideration to, is whether the matter should
properly have been decided by the common law. The suit was commenced in the local court and at the
time when this case was decided, namely, November 1959, the relevant legislation that governed the law
administrable in the local courts, was the Local Courts Act, 1958.1 Section 15 (a) of the Act reads, in so
far as material:
“Subject to the provisions of this Act a Local Court shall administer the customary law prevailing within the jurisdiction of the Local Court so far as it is not repugnant to natural justice, equity and good conscience nor
incompatible either directly or by necessary implication with any Act for the time being in force.”
It follows, in my judgment, that unless the rules of the common law and customary law were identical on
this subject, the learned circuit judge was not entitled to reverse the trial court on the sole ground that the
rule of law applied did not conform to the rules of the common law. It is plain he did not give
consideration to the important question, namely, which law was properly applicable to the matter in
question. I think he was wrong in that. I feel no doubt whatsoever that this matter ought to be determined
by customary law. The learned circuit judge dealt with this matter on the basis that the words were defamatory. Both counsel
who appeared in support of this appeal, argued this case on the same basis. I am however myself doubtful
whether the words which were proved to have been published by the defendant of the plaintiff were
defamatory in the sense that they are likely to injure her reputation. I understand the law to be that words
which merely cause injury to feelings or cause annoyance but in no way reflect on character or reputation
are not defamatory. Sarbah says “Words which cause or produce any injury to the reputation of another
are called
[p.335] of [1963] 1 GLR 332
defamatory, and, if false, are actionable. False defamatory words, when spoken, constitute slander. “See
Fanti Customary Laws (2nd ed.), Chapter 8 at p. 93. I think, on balance, that the words proved to have
been published of the plaintiff by the defendant were plain vituperation only.
That brings me to the question whether customary law provides a remedy for mere vituperation which
falls short of slander as defined by Sarbah. I cannot think of any reason why on principle there should be
none. The fact that the law of England provides no remedy is quite beside the point. The society of
England is different from the society of Ghana. In this country, where words of abuse are taken seriously,
it would, in my opinion, be socially intolerable if customary law provided no sanctions against a man who
finds pleasure in injuring the feelings of his neighbour by vituperation. The Juaso/Bompata Local Court
which tried this case as of first instance, did not feel itself inhibited by any rule of customary law from
awarding damages to the plaintiff for insult. Although the Kumasi East District Court B reversed this
judgment on appeal, nothing turned on the fact that abuse by itself could not give rise to an action for
damages according to customary law. Indeed the judgment of that court itself proceeded on the basis that
such action was cognisable in accordance with custom. Judges who sat in this court and in the Supreme
Court have said time and again that native custom is peculiarly within the bosom of the native courts.
Unless there is authority to the contrary, and none was produced by either counsel, I am prepared to hold
that abuse by itself is a wrong redressible by damages according to customary law. The fact that the
words of abuse were spoken in the heat of a quarrel is no doubt a matter that the good sense of the
tribunal would take into consideration as a mitigating factor, but it does not by itself negative liability.
Indeed in the case of Mensah v. Quamina Attopi2 reported by Sarbah in his second collection of decided
cases where the defendant was proved to have abused the plaintiff’s family as liars, Clouston, Acting
Judicial Assessor, on the 3rd February, 1845, ordered, “Defendant to pay one dollar for his family’s
abuses of the plaintiff’s together with one dollar for costs.”3 It follows therefore that in my judgment, the
magistrate was right in sustaining the damages which the local court awarded in favour of the plaintiff
and that the learned circuit judge erred in setting aside that judgment.
If however the words proved to have been used by the defendant properly construed, implied that the
plaintiff was habitually unclean in her essential female part, then that would be a reflection on her
character and would constitute slander as defined by Sarbah, provided of course it is false. In that case, it
would be actionable without proof of any special damage. In this wise, say Sarbah, the native custom is
more in accordance with natural justice, equity and conscience than the English law which has been
denounced by many a learned judge. The defendant has not sought to justify the words used and but for
the decision of the High Court in the
[p.336] of [1963] 1 GLR 332
case of Kwaku v. Addo4 nobody can seriously argue that slander is not redressible by damages according
to customary law. In that case however, Ollennu J. (as he then was) expressed, obiter, doubts as to
whether an action for defamation lay in general native law and custom, the primary purpose of which was
that of recompensing the person defamed by means of pecuniary award. He expressed as his view that5
“. . . a claim made under native custom must be one primarily for an order to recant or retract, and when the
slander is proved the court, in addition to that remedy may, having regard to the nature and circumstances of
the case, awards a small fine as compensation.”
Naturally enough, counsel for the respondent relied on this dictum as showing that the action in this case
did not lie since it was brought primarily to recover damages. It was submitted that the remedy provided
by customary law for slander was penal not compensatory. In the case of Quacoe v. Dadson6 decided
precisely a year after the Kwaku v. Addo case, Adumua-Bossman J. (as he then was) did not take the
restricted view that Ollennu J. took. Also founding himself on Sarbah, he said,7 “The civil wrong of
slander . . . is known, to and recognised by, native customary law . . . “ Adumua-Bossman J. obviously
thought that slander was both a criminal and civil wrong and he regarded the retraction of the words and
the payment of a fine as the punishment that custom inflicted on persons found guilty of slander in olden
days.
It is really unnecessary for me to perform the unenviable task of choosing between the view of Ollennu J.
and Adumua-Bossman J. (as both then were) because either view was expressed obiter since both decided
the respective cases before them by the principles of the common law. They were both deciding as of first
instance, and I am deciding on appeal, a case which by the mandatory provisions of section 15(a) of the
Local Courts Act, 1958,8 ought to be determined according to customary law. But were I constrained to
choose between these two dicta of obviously great weight, I should with great respect to Ollennu J. prefer
the view of Adumua-Bossman J. not only because it has behind it the respectable authority of Sarbah, but
also because it seems to me to accord with principle. Slander is essentially a wrong against the person of
an individual or, to put it in Blackstone’s words, a private wrong. If it was thought serious enough to be
regarded as a public wrong and visitable by criminal punishment at the instance of the community at
large, it is difficult to see as a matter of principle, why the individual whose right is thus infringed cannot
institute proceedings to obtain redress. Indeed, it is difficult to conceive any wrongs against the person
which are punishable by the State as criminal wrongs, which do not at the same time constitute private
wrongs redressible by civil proceedings, at the suit of the person wronged.
It follows, therefore, that in my view, slander according to native custom whatever else it is, is a civil
wrong actionable at the suit of the person defamed and is properly redressible by pecuniary award.
Accordingly, I conclude that if the words proved to have been spoken and published of the plaintiff by the
defendant be mere vituperation or abuse, or in slander properly so called, she was properly awarded
damages which the learned circuit judge was not entitled to disturb.
Accordingly, I allow the appeal and set aside the judgment of the circuit judge together with the order for
costs. I restore the judgment of the magistrate court. The plaintiff-appellant will have her costs in this
court assessed at 25 guineas and costs in all the courts below to be taxed. Any costs paid pursuant to the
judgment of the circuit court should be refunded to the appellant.
DECISION
Appeal allowed
[Reported by S.A. BROBBEY, ESQ., Barrister-at-Law.]
