NKRUMAH AND ANOTHER v. MANU [1971] 1 GLR 176

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 7 DECEMBER 1970

BEFORE: TAYLOR J.

CASES REFERRED TO

(1) Attiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported;digested in (1969) C.C. 149.

(2) Wankyiwaa v. Wereduwaa [1963] 1 G.L.R. 332.

(3) Ampong v. Aboraa [1960] G.L.R. 21.

(4) Affull v. Yambah (1885) 1 Ren. 61.

(5) Cheetham v. Bannerman (1881) Sar.F.L.R. 23; 1 Ren. 54, F.C.

(6) Amoah v. Djabi (1926) D.Ct. ‘26-’29, 43.

(7) Quacoe v. Dadson (1958) 3 W.A.L.R. 396.

(8) Kwaku v. Addo (1957) 2 W.A.L.R. 306.

(9) Angu v. Attah (1916) P.C. ‘74-’28, 43, P.C.

(10) Bonsu v. Forson [1964] G.L.R. 45, S.C.

[p.178] of [1971] 1 GLR 176

NATURE OF PROCEEDINGS

APPEAL from a decision of a district court magistrate in which the respondent was awarded special damages for having been insulted and defamed by the appellants without just cause. The facts are fully set out in the judgment of Taylor J.

COUNSEL

S. N. Bremah-Andoh for the appellants.

C. F. Hayfron-Benjamin for the respondent.

JUDGMENT OF TAYLOR J.

The plaintiff – respondent (hereinafter called the respondent) claimed from the defendants – appellants (hereinafter referred to as the appellants) the following as appears in her writ of summons: “N¢200.00 damages from the defendants jointly and severally for defamation of character and insults as follows: On Tuesday 28 March 1967 at 4 p.m. the first defendant told the plaintiff that plaintiff had become proud because of legacy. She further told the plaintiff that plaintiff is a slave. The plaintiff’s room is dirty and when her father died it was the defendant who took water and washed the room.

Second defendant: The defendant shouted and beat a bucket saying that the plaintiff does not know that she is a slave because she is young.”

At the trial it was established and accepted by the court that on the day in question a quarrel developed between the appellants and the respondent during which the words complained of were uttered by the appellants. It is not necessary therefore to go into any great details as to the evidence. It is sufficient to draw attention to two relevant pieces of evidence. The respondent in her evidence-in-chief said of the first appellant, “She developed an argument between me and her during which she said that I was a slave.” The first witness for the appellants said, “I was returning from the market when I saw the plaintiff and the two defendants quarrelling.” In his judgment the magistrate said of this statement of the appellants’ witness, “This is a true statement which the court has no reason to disbelieve.” However the district court magistrate, although he held that there was a quarrel, seemed to have taken the view that it was a quarrel in which the appellants insulted and defamed the respondent but that the respondent did not in any way insult the appellants. Having held that there was a quarrel the court concluded:

“The court does not at all believe the evidence of the first and second defendants and their witnesses that they did not insult the plaintiff or that the plaintiff also insulted the first defendant. Why should they choose to go to the plaintiff’s house carrying an old bucket to beat to attract people? This they could not do but their intention is quite obvious. The court therefore finds the first and second defendants guilty for insulting and defaming the plaintiff without just cause. The plaintiff is awarded special damages N¢80.00 against the first and second defendants jointly and severally.”

[p.179] of [1971] 1 GLR 176

Costs of N¢13.00 were awarded against the appellant also jointly and severally.

It is clear to me that if the district magistrate is right then the quarrel in this case was a strange and peculiar one indeed. Here is a quarrel in which the appellants were poised on one side against the respondent on the other and all the insults were flowing from the appellants’ side; none from the respondent’s. This was the conclusion derivable from the evidence which the respondent and her witnesses led and which the district magistrate accepted hook, line and sinker! The evidence of the appellants and their witnesses showed what seemed true to life, that there was a quarrel in which both sides freely insulted each other, although the appellants denied the allegation that they called the respondent a slave.

It seems to me with respect that the finding of the magistrate that the appellants were not also insulted is, if I may say so without any disrespect, naive and most unreasonable and cannot be supported by the evidence on the record having regard to the manner of life and behaviour of the average Ghanaian village woman. I think a finding which will be more profound, reflecting the true position and according with the evidence is that there was a quarrel between the respondent and the appellants in which they insulted each other while tempers were high, and the appellants indeed uttered the words complained of in anger and in the heat of passion. This is because a quarrel in the Ghanaian sense whatever it may connote in other climes, is in my experience, if between women, nothing but angry exchanges of insults and I cannot conceive of it in this one sided way which commanded itself to the district magistrate. In the appeal against the decision of the district magistrate however two grounds were urged on behalf of the appellants. The first is the one with which our courts are quite familiar namely that the judgment is unreasonable and cannot be supported having regard to the evidence. Having regard to the views which I hold on the facts it seems to me that there was ample evidence to support the central finding that the appellants did indeed utter the words complained of in the summons. I think the principle now commonplace enunciated many times without number and adverted to in Attiase v. Abobbtey, Court of Appeal, 29

July 1969, unreported; digested in (1969) C.C. 149 (to be discussed later on in this judgment) answers this ground. Ollennu J.A. remarked:

“It is trite learning that an appellate court should not reverse findings of fact made by a trial court unless those findings are not supported by the evidence, and that it is not for the appellate court to substitute its opinion on facts for the opinion of the trial court.”

One other matter argued before me by counsel for the appellants is that it was never clear even to the trial district magistrate whether the action was under the common law or under customary law. By awarding N¢80.00 and calling it special damages, the argument runs, he would seem to have indicated that he was applying the common law. If that is so since it is conceded on all sides that special damage was not proved he should have dismissed the claim. If of course the action was founded [p.180] of [1971] 1 GLR 176 on customary law there was no need to prove special damage. I shall later on in this judgment deal with the so-called special damage which the magistrate awarded and in the process deal with this argument advanced in that behalf by appellants’ counsel.

I must now move on to decide two things: first, whether the words uttered are defamatory under customary law and secondly, the applicable law common or customary. It is now generally accepted that defamation under customary law is wider than under common law. Sarbah in his Fanti Customary Laws (3rd ed.) at p.113 after defining and discussing defamation generally indicated how extensive it is under customary law by saying apparently of customary defamation: “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.” Dr. Danquah in the introduction to his Cases in Akan Law was more specific at p. xxiii:

“Thus, although under the Common Law it is only in very exceptional cases that a plaintiff can succeed in an action for slander, the Customary Law gives full recognition to all claims for damages for insulting words or language used verbally against any person. A suit of this nature (slander) is termed in these judgments ‘action for defamation of character’, and it covers such serious assertions as that a person is an Odonkoba, ‘son of a slave,’ an obayifo, ‘a witch,’ an odutufo, ‘one who has killed another by sympathetic magic, a poisoner,’ down to such commonplace assertions as that another is a fool, or a beast such as an ass, or a silly idiot.”

Counsel for the appellants argued that the use of the word slave is mere vituperation used between two women and so it should not be taken seriously. I think the submission is misconceived if the applicable law is customary law, for in Wankyiwaa v. Wereduwaa [1963] 1 G.L.R. 332 a judgment of the High Court, Kumasi, Apaloo J. (as he then was) held, in my view rightly and in accordance with established customary principles, that mere vituperation is actionable under customary law. In the course of his judgment he said at p. 335: “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.” In Ampong v. Aboraa [1960] G.L.R. 29 (a case to be discussed fully later in this judgment) Smith J. in the High Court, Sekondi, also held that to call a person a slave constituted slander according to native law and custom. It seems the matter may very well be considered as well settled.

In the second ground of appeal counsel urged that the district magistrate was wrong to award N¢80.00 special damages against the first and second appellants jointly and severally. Clearly the district magistrate may have misdescribed the award as special damages instead of damages simpliciter. But I think it will be a travesty of justice if I were to rest my decision on this unworthy ground. If for this obvious slip I were to allow

[p.181] of [1971] 1 GLR 176 the appeal as counsel has urged me to do I can hardly lay claim there-after to any sense of justice and fair play. Surely such bewilderingly technical notions of law were buried long ago with Maitland’s Forms of Action. I will certainly not be a party to conjuring up their ghosts to rule us from their graves. In any case, I think I have an inherent jurisdiction if the occasion were to arise to correct this obvious slip, since the respondent asked for general damages and did not ask for or prove special damages. In Attiase v. Abobbtey (supra) a somewhat similar point arose for decision and the court there observed: “Learned counsel for the appellant submitted that the circuit court misdirected itself in holding that the defamatory words proved to have been uttered by the respondent are not actionable per se and that because the plaintiff had stated in her writ of summons that she claimed special damages and proved no special damage she should not have been awarded general damages.”

The court had no difficulty in confirming the award of general damages although by her writ the plaintiff claimed special damages. And it is significant that the court did not use the fact that the plaintiff claimed in her writ special damages as a circumstance indicating that common law and not customary law applied in the case as the appellants’ counsel has argued.

On the consideration of the arguments advanced by counsel for both parties I am satisfied that the respondent was defamed by the appellants and the magistrate was right to so hold, if customary law is the applicable law. If however the common law is the applicable law then since special damages were not proved the action must fail. It is clear that, if it is customary defamation, then it took place in the course of a heated quarrel with both sides heaping insults at each other. The district magistrate did not take this aspect of the matter into consideration despite the overwhelming evidence adduced by the appellants, supported by the respondent and admitted by the magistrate that there was a quarrel. In Wankyiwaa v. Wereduwaa (supra) the fact that the words were spoken in a heated moment, was considered as a circumstance which reduced the damages from £G20 to £G5. If I decide therefore that the applicable law is customary law I will be obliged to reduce the damages considerably because in this case the defamation clearly took place in the course of a heated quarrel. I must say though that it is about time the customary law of slander took on a more enlightened garb and moved so to speak with the demands of modern times. When village communities were small and the written word was unknown to customary law the only means of social and commercial intercourse was the spoken word. It was therefore essential for the preservation of the peace of those small communities that idle insults which ridicule and may therefore ruin a person be discouraged by the body politic. With the very drastic changes which modern civilization has imposed on community and rural life

[p.182] of [1971] 1 GLR 176 throughout the country it seems to me that the law has more serious problems to tackle than silly vituperation. The early judges made praise-worthy and strenuous efforts to discourage it. When in Affull v. Yambah (1885) 1 Ren. 61 the respondent and the appellants were engaged in apparent angry exchanges in a quarrel provoked by the respondent and on her being accused of immoral conduct she sued the appellants claiming £G25 for slander, Macleod J. expressed his contempt for her action in the measure of damages he awarded her and the consequential orders he made as to costs. He said at p. 61: “[T]he evidence shews that the plaintiff provoked the slander by the use of slanderous words of and towards the defendant, and now that she has got the worst of the not very elegant language used she is virtuously indignant and comes to Court to ask £25. I think that if defendants pay 1s. to plaintiff, justice will be done and each party must pay its own costs here and in the Court below.”

When two persons are engaged in insulting each other freely, surely the law cannot be serious if it undertakes the invidious task of weighing and deciding on the quantum of the insults on each side and penalising the side that tipped the scale by the preponderance of its vituperation. The common law did not allow it and it is amazing that the yardstick of “natural justice, equity and good conscience” provided by the legislature as a measure of the limits of acceptable customary law was not boldly utilized by the early interpreters of our law to put an end to this anachronism.

I have often wondered whether the cases of Cheetham v. Bannerman (1881) 1 Ren. 54, F.C. and Amoah v. Djabi (1926) D.Ct. ‘26-’29, 43 were not unsuccessful early attempts to debunk the customary remedy for slander uttered in anger and in the heat of the moment. I would have thought that the conditions which engendered the customary remedy have disappeared and the customary law on the matter ought to be declared obsolete. Unfortunately this view is not borne out by the authorities ancient and modern. In Danquah’s Cases in Akan Law, decision after decision would seem only to uphold the customary law. Apparently it has become too stratified to be judicially ignored.

In the introduction to his Cases in Akan Law, Dr. J. B. Danquah attempted this explanation of the psychological and sociological basis of the law of slander in its customary setting. He said at pp. xxiii-xxiv:

“No one in Akan land would suffer an insult to his person which he would not suffer with impunity when offered to his body. The statement contains an element of truth, and the social psychologist who finds in this fact a proof of the African’s greater and keener sensitiveness to insulting or abusive language would be doing useful service in broadening the amicable basis of inter-racial relations and co-operation. This difference of social outlook between the European and African codes of conduct and elegant address lies at the basis of many regrettable incidents which could not have happened had both sides known what was expected of them.

[p.183] of [1971] 1 GLR 176

The delicate feelings of the average African are not half as blunted and atrophied as those of the average European, and where, for instance, an Englishman would not consider himself insulted, and would even if he did, receive no substantial help from the courts for being called a ‘disgruntled Jacobite’, an Akan man would receive full redress at law if anyone dared to cast a slur on his ancestory or said of him that he was not a true member of any of the ancient Akan clans.”

In a footnote to this observation Dr. Danquah explained further (at p.xxiv) that an assertion that an Akan man is not a member of the ancient Akan clans “is tantamount to saying the person referred to has no connexion with any royal house or that he is the decendant of a slave or a slave tribe.” One can only hope that with the inevitable future break-up of our heterogeneous tribal groups implicit in the present efforts at a unitary state, and with the gradual process of inter-tribal marriage that these pompous tribal sentiments will eventually disappear. Until that event I must take the law as I find it.

What then is the applicable law in this case? I must confess that I have had considerable difficulty with this question because in some of the older authorities referred to by Adumua-Bossman J. (as he then was) in Quacoe v. Dadson (1958) 3 W.A.L.R. 396 at p. 398, the common law had been apparently applied when on principle customary law should have been applied. To resolve the difficulty I think it may be worthwhile to make a brief survey of the history of the customary laws as they were applied to our courts, particularly the very lower hierarchy of our courts, from the period immediately before independence to the present time.

Before independence section 87 (1) of the Courts Ordinance, Cap. 4 (1951 Rev.), gave guidance as to the applicable law in causes and matters between what I can describe now as Ghanaians although the term used in the Ordinance was “natives.” The section provides:

“(1) Nothing in this Ordinance shall deprive the Courts of the right to observe and enforce the observance, or shall deprive any person of the benefit, of any native law or custom existing in the Gold Coast, such law or custom not being repugnant to natural justice, equity, and good conscience, nor incompatible either directly or by necessary implication with any ordinance for the time being in force. Such laws and customs shall be deemed applicable in causes and matters where the parties thereto are natives, and particularly, but without derogating from their application in other cases, in causes and matters relating to the tenure and transfer of real and personal property, and to inheritance and testamentary dispositions, and also in causes and matters between natives and non-natives where it may appear to the Court that substantial injustice would be done to either party by a strict adherence to the rules of English law. No party shall be entitled to claim the benefit of any local law or custom, if it shall appear either from express contract or from the nature of the transactions out of which any suit or question may have arisen,

[p.184] of [1971] 1 GLR 176 that such party agreed that his obligations in connection with such transactions should be regulated exclusively by English law; and in cases where no express rule is applicable to any matter in controversy, the Court shall be governed by the principles of justice, equity, and good conscience.” In Kwaku v. Addo (1957) 2 W.A.L.R. 306 at pp. 309-10 Ollennu J. (as he then was) sitting in the High Court, then the Divisional Court in Accra, interpreted this provision to mean that: “unless there is anything to the contrary, native customary law should be applied in deciding this case which is between two natives.” This was not the first time it has thus been interpreted. I think the interpretation is unexceptionable and I am not aware of any pre-Republic case in which its validity had been impugned. Indeed the native courts that existed before the establishment on 29 August 1958 of the local courts by the Local Courts Act, 1958 (No. 23 of 1958), applied customary law and in their cases therefore no difficulty arose. The local courts which were the apparent successors of the said native courts had the customary law which they were to administer compendiously spelled out in section 15 (a) of the Act. The provision reads:

“Subject to the provisions of this Act a Local Court shall administer –

(a) 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:

Provided that in regard to criminal offences the Local Court shall take cognisance only of those offences set out in the instrument establishing it; …”

At independence and before the first Republican Constitution therefore, the Courts Ordinance, Cap. 4 (1951 Rev.), continued, and the Local Courts Act, 1958, after it, to be the repository of the rules showing the applicable law, customary or common, between parties before our courts. And it seems very clear that by this time the interpretation of section 87 (1) of the said Courts Ordinance made by Ollennu J. (as he then was) in Kwaku v. Addo (supra), represented the law and the thinking in legal and judicial circles. However, with the birth of the First Republic went the demise of the Courts Ordinance, Cap. 4 (1951 Rev.), and its successor in title became, so to speak, the Courts Act, 1960 (C.A. 9). The Act did not inherit all the provisions of its predecessor and section 87 of Cap. 4 was itself buried with Cap. 4. In its place were promulgated sections 66 and 67 of the Courts Act, 1960 (C.A. 9). The relevant provisions are set down here fully:

“66 (1) Subject to the provisions of any enactment other than this subsection, in deciding whether an issue arising in civil proceedings is to be determined according to the common law or customary law and, if the issue is to be determined according to customary law, in deciding which system of customary law is applicable, the court shall

[p.185] of [1971] 1 GLR 176 be guided by the following rules, in which references to the personal law of a person are references to the system of customary law to which he is subject or, if he is not shown to be subject to customary law, are references to the common law: –

Rule 1. Where two persons have the same personal law one of them cannot, by dealing in a manner regulated by some other law with property in which the other has a present or expectant interest, alter or affect that interest to an extent which would not in the circumstances be open to him under his personal law.

Rule 2. Subject to Rule 1, where an issue arises out of a transaction the parties to which have agreed, or may from the form or nature of the transaction be taken to have agreed, that such an issue should be determined according to the common law or any system of customary law effect should be given to the agreement. In this rule ‘transaction’ includes a marriage and an agreement or arrangement to marry.

Rule 3. Subject to Rule 1,where an issue arises out of any unilateral disposition and it appears from the form or nature of the disposition or otherwise that the person effecting the disposition intended that such an issue should be determined according to the common law or any system of customary law effect should be given to the intention.

Rule 4. Subject to the foregoing rules, where an issue relates to entitlement to land on the death of the owner or otherwise relates to title to land: –

(a) if all the parties to the proceedings who claim to be entitled to the land or a right relating thereto trace their claims from one person who is subject to customary law, or from one family or other group of persons all subject to the same customary law, the issue should be determined according to that law;

(b) if the said parties trace their claims from different persons, or families or other groups of persons, who are all subject to the same customary law, the issue should be determined according to that law;

(c) in any other case, the issue should be determined according to the law of the place in which the land is situated.

Rule 5. Subject to Rules 1 to 3, where an issue relates to the devolution of the property (other than land) of a person on his death it should be determined according to his personal law.

Rule 6. Subject to the foregoing rules, 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 system, when it should be so determined.”

“67 (1). Any question as to the existence or content of a rule of customary law is a question of law for the Court and not a question of fact.

[p.186] of [1971] 1 GLR 176

(2). If the Court entertains any doubt as to the existence or content of a rule of customary law relevant in any proceedings after considering such submissions thereon as may be made by or on behalf of the parties and consulting such reported cases, text-books and other sources as may be appropriate, the court shall adjourn the proceedings to enable an inquiry to take place under the next subsection.

(3). The inquiry shall be held as part of the proceedings in such manner as the Court considers expedient, and the provisions of this Act relating to the attendance and testimony of witnesses shall apply for the purpose of the tendering of opinions to the Court at the inquiry, but shall apply subject to such modifications as may appear to the Court to be necessary:

Provided that:-

(a). the decision as to the persons who are to be heard at the inquiry shall be one for the Court, after hearing such submissions thereon as may be made by or on behalf of the parties;

(b). the Court may request a House of Chiefs, State Council or other body possessing knowledge of the customary law in question to state its opinion which may be laid before the inquiry in written form.”

The imperialist regime had denied the term law to our law and had reduced our law to questions of fact to be proved time and time again until they became satisfied that they could accept it. It is therefore clear that by the provision of section 67 of the Courts Act, 1960, the indigenous legislature intended to bring some dignity to our laws and to debunk that rule of imperialist creation, a product of what the deposed President Kwame Nkrumah might well have called colonial mentality which was applied to our laws, and which was expostulated with such patronizing arrogance by the Privy Council in Angu v. Attah (1916) P.C. ‘74-’28, 43. In that case Sir Arthur Channell reading the opinion of the Judicial Committee of the Privy Council on appeal from a judgment of the Full Court of the then Supreme Court of the Gold Coast said at p. 44 (the emphasis is mine):

“The land law in the Gold Coast Colony is based on native customs. As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof in the Courts, become so notorious that the Courts take judicial notice of them.”

Section 66 was concerned primarily with the vital question of what law, common or customary, to apply in all courts in the country. The repeal of section 87 of Cap. 4 had tolled the death knell of the principle expounded by Ollennu J. (as he then was) in Kwaku v. Addo (supra) and in my view as from 1 July 1960 that principle suffered a statutory death. Subsequently after the Proclamation which followed the coup of February 1966, the Courts Act (C.A. 9), was repealed and replaced by the Courts [p.187] of [1971] 1 GLR 176

Decree (N.L.C.D. 84), and the relevant sections 66 and 67 of the repealed C.A. 9 were replaced respectively, without any alteration either in substance or form, by paragraphs 64 and 65 of N.L.C.D. 84. So that by 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; but the judicial mind is highly conservative and in Attiase v. Abobbtey (supra) nine years after the legislature had deliberately disposed of the rule, the following pronouncement, obiter, and not necessary for the decision, was made by Ollennu J.A. and it found support in the concurrence of Apaloo and Lassey JJ.A. (the emphasis is mine):

“Counsel for the appellant however submitted 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 … (d) personal suits where the debt, damage or demand does not exceed £G100…’ Since the subsection (1) (d) does not say as does subsection (1) (a), (b) and (c) that the jurisdiction shall be exercised where the law applicable is exclusively 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 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 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.”

With all due respect this seemed to be a revival of the principle which the legislature discarded by enacting section 66 of C.A. 9, now paragraph 64 of N.L.C.D. 84. The court proceeded to buttress this with the further assertion: “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 customary. That in our view is a correct statement of the law.” A correct statement of the law in 1969? Surely not!

In the first place, with the utmost respect, Smith J. did not in Ampong v. Aboraa (supra) decide any such thing! He certainly did not hold that “in slander suits between two persons subject to customary law, the law applicable is customary.” And if by this statement of the so-called law in Ampong v. Aboraa the impression is meant to be created that as at 29 July 1969 the law on the matter is as stated above and the court was therefore applying it to the case before it then with all due respect the law contradicts the clear and mandatory provisions of paragraph 64 (1) of N.L.C.D. 84 and Attiase v. Abobbtey (supra) must therefore be regarded as having been given per incuriam. Ampong v. Aboraa (supra) if that is [p.188] of [1971] 1 GLR 176 indeed what it decided then it is to that extent no longer good law since 1 July 1960 having regard to the said paragraph 64 of N.L.C.D. 84. But of course it did not decide that. Indeed it was never indicated in the judgment that the defendant was a native. Ampong v. Aboraa was an action for slander in which the defendant had called the plaintiff a “slave and beast.” The plaintiff sued in the High Court claiming £G500 damages for the said slander. There was no proof of special damages but before the trial the plaintiff obtained leave to amend his statement of claim by adding the following at p. 30. “‘The plaintiff maintains that by native law and custom the words published by the defendant constitute actionable slander’.” Obviously this was done so as to comply with Order 19, r. 31 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides that:

“In all cases in which the party pleading relies upon a native law or custom, the native law or custom relied upon shall be stated in the pleading with sufficient particulars to show the nature and effect of the native law or custom in question and the geographical area and the tribe or tribes to which it relates.” This rule it seems to me was calculated to meet the rule already referred to in the Privy Council case of Angu v. Attah (supra) that customary law is a question of fact and not a question of law and so apparently it ought to be pleaded contrary to the well-known practice that law is not to be pleaded. Of course this Privy Council rule was abolished, as has been shown already, by section 67 of C.A. 9 so presumably the rule as it appears now in Order 19, r. 31 is otiose.

At the trial it was argued for the defendant that if the plaintiff’s action was founded on English law then it should be dismissed for lack of proof of special damage and if it was founded on customary law it should be equally dismissed because the plaintiff’s case would then be at variance with his writ of summons. Smith J. held that the pre-trial amendment showed that customary law was contemplated and there was therefore no reason in law why the court should not entertain the suit notwithstanding the absence of proof of special damage. Smith J. stated at p. 30:

“[T]he question is whether this action is one which should have been tried in the native court and not in the Supreme Court. Counsel for the defendant relied on the case of Kwaku v. Addo (2 W.A.L.R. 306). He argued that if the action was founded on English law it should be dismissed, because there was no proof of any special damage; alternatively, if it was founded on native law and custom then the case was at variance with the writ of summons. I would have agreed with this latter contention, but the plaintiff before trial sought and was given leave to amend his statement of claim by adding another paragraph as follows:- ‘The plaintiff maintains that by native law and custom the words published by the defendant constitute actionable slander.’

[p.189] of [1971] 1 GLR 176

I think that this amendment satisfied Order 19, Rule 31 of the Supreme Court (Civil Procedure) Rules, 1954, and I hold that it makes the case clearly one based on native law and custom. There is therefore no reason in law why this court should not entertain the suit. The next question is whether the epithet ‘slave’ by itself constitutes slander according to native law and custom. I think that there is no doubt that it does, and being universally regarded as such it required no further specific pleading. In my opinion the plaintiff is entitled to succeed in this case.”

There was no question of natives involved at all. The next matter dealt with by Smith J. was the measure of damages. It is therefore clear that although Smith J. did not make the decision attributed to him by the Court of Appeal, if indeed he had he would have been right at the time of the decision since his decision was given on 29 February 1960. After 1 July 1960 the decision would not be good law to be applied to cases commenced and decided after that date. Consequently by 29 July 1969, the date of Attiase v. Abobbtey (supra), the new doctrine enshrined in paragraph 64 of N.L.C.D. 84 was the new principle. Of course Attiase v. Abobbtey (supra) can perhaps be supported on the ground that it did indeed apply the new and true principle. Ollennu J.A. did say (the emphasis is mine): “Then this 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 paragraph 64 (1), Rule 6 will cover this case.” There is a veiled suggestion here that if the defendant is subject to customary law then since the plaintiff is also subject to customary law the old rule expounded in Kwaku v. Addo (supra) applies and the paragraph 64 (1), Rule 6 will only be applicable if the defendant is not subject to customary law. With respect this is not in accordance with the clear provision of paragraph 64 (1), Rule 6. Although I concede that this decision binds me, nevertheless in so far as the last observation can be interpreted as part of the ratio and to mean that paragraph 64 of N.L.C.D. 84 is not the true rule and that it operates side by side with the old discarded rule contained in the supposed ratio in Ampong v. Aboraa (supra) then to the extent to which the old rule was applied it is my view that the decision would be per incuriam. If however the plaintiff did claim to have the matter determined according to customary law and she is a person subject to customary law, then the decision is unexceptionable and will for this reason be of full binding force.

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

[p.190] of [1971] 1 GLR 176 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.

From the record it is clear that no special damage was proved and the words used did not obviously bring the matter within any of the well-known classes of cases in which slander is actionable per se at common law. I believe these classes are as set down in the editoral note to Kwaku v. Addo (supra) at p. 306 and they are, “imputation of a criminal offence punishable with imprisonment at first instance; “imputation of contagious or infectious disease likely to prevent other persons from associating with the plaintiff; and, imputation of unfitness, dishonesty or incompetence in any office held by the plaintiff or in any lawful profession or trade carried on by him.

Furthermore the words are clearly words uttered in the heat of passion and are vulgar abuse. On 27 January 1964 in Bonsu v. Forson [1964] G.L.R. 45, S.C. Ollennu J.A. delivering the judgment of the court examined the authorities both local and English and remarked at pp. 48-49:

“But considering all the circumstances of the alleged publication the learned judge came to the conclusion that both the plaintiff and the defendant were highly incensed at the time of the incident and quarrelled heatedly to the point of fighting and abused each other freely in the heat of passion. He therefore formed the opinion that whatever the words may be which they each used on the particular occasion, they were ‘words of heat and vulgar abuse’ which are not actionable.”

It seems to me the position is the same here. In the result, on the basis of the applicable law, namely the common law, I hold that the action of the plaintiff is not maintainable. I will therefore allow the appeal. The parties were clearly engaged in insulting each other. For this reason, relying on the case of Afful v. Yambah (supra), I will make no order as to costs. Each party is to bear her own costs in this court and in the court below. Appeal allowed.

DECISION

Appeal allowed.

T. G. K.