NKRUMAH AND ANOTHER v.

MANU [1971] 1 GLR 176-190

IN THE HIGH COURT, KUMASI

7 DECEMBER 1970

TAYLOR J.

Defamation—Slander—Law applicable—Customary law or common law—Action between two

Ghanaians—No indication that plaintiff subject to any system of customary law—No claim to have issue
determined according to customary law—Courts Decree, 1966 (N.L.C.D. 84), para. 64 (1), Rule 6.

Defamation—Slander—Vulgar abuse—Words uttered in heat of passion—Words not actionable per se

at common law—No special damages proved—Whether action maintainable.

Law reform—Customary law—Slander—Idle insults which ridicule another person—Necessity of

abolishing such actions.

HEADNOTES

The Courts Decree, 1966 (N.L.C.D. 84), in para. 64 (1), Rule 6 provides that:

"64. (1) Subject to the provisions of any enactment other than this sub-paragraph, 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 [p.177] of
customary law is applicable, the court shall 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 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."
A district magistrate awarded the respondent N¢80.00 as special damages for having been insulted and
defamed without just cause by the appellants. All the parties were Ghanaians. It was not disputed that
during a heated quarrel the respondent was called a slave. On appeal it was submitted that although it
was not clear whether the action had been brought under customary or common law, the implication
was that common law was applied because of the award of special damages, and therefore the appeal
should have been allowed since no special damages were proved. The main issue on appeal was
whether the applicable law was customary or common.

Held, allowing the appeal:

(1) the determination of the proper law must be done with reference to Rule 6 of para. 64 (1) of N.L.C.D.
84. There was nothing on the record to show that the respondent claimed to have had the issue
determined according to customary law nor did the respondent show that she was subject to any
system of customary law and therefore the exception to Rule 6 was clearly inapplicable. The proper law
was therefore the common law. Attiase v. Abobbtey, Court of Appeal, 29 July 1969, unreported;
digested in (1969) C.C. 149 doubted.

(2) Since no special damage was proved, the words were not actionable per se and the words were
uttered in the heat of passion, then the action was not maintainable. Bonsu v. Forson [1964] G.L.R. 45,
S.C. applied.

Per curiam. Modern civilization has imposed very drastic changes on community and rural life in Ghana
and since the spoken word is no longer the only means of social and commercial intercourse, the
customary law of slander should be changed to meet the demands of modern times. The law has more
serious problems to tackle than idle insults which ridicule another person.

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]

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]

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
common- place 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] 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] 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] 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]

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] 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] 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]

(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] 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]
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] 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] 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.