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MAHAMA
(PLAINTIFF)
vs
ERNEST OWUSU BEMPAH & ANO.
( DEFENDANTS)
COUNSEL:
REINDORF TWUMASI ANKRAH FOR PLAINTIFF.
GARY NIMAKO MARFO FOR THE 1 DEFENDANT.
DICKSON TWENEBOAH-KOD UAH FOR THE 2 DEFENDANT.
CORAM:
LADYSHIP JUSTICE GEORGINA MENSAH-DATSA
JUDGMENT
The plaintiff claims against the defendants jointly and severally the following reliefs:
The 1st defendant testified and did not call any witness.
The plaintiff contends that the natural and ordinary and/or innuendo meaning of
the statements complained of which were published widely is that, the plaintiff
has engaged in stealing. He asserts that within the context, the statement made by
the 1st defendant is understood to mean that, the plaintiff’s wealth are proceeds
from stealing. He avers that the said statement imputes that he has committed the
offence of stealing an imputation which is an obvious falsehood. The
plaintiff asserts that as a result of the defamatory publication, his character, pride,
self-respect, credit and reputation has been tarnished and he has been reduced in
his estimation in the eyes of right thinking members of the society.
The 1 defendant's case is that he made the said statement in a fit of anger in
the heat of arguments between him and the National Democratic Congress
(NDC) panelist on the talk show. According to him the said statement made in
passing was provoked by the NDC panelist who is a well-known affiliate of the
plaintiffs earlier statement that he is not worthy to clean the shoes of the plaintiff.
He asserted that the utterance he made concerning the plaintiff in the course of
heated arguments was an impulsive statement borne out of anger generated by
the said derogatory remarks by the said NDC panelist. He contended that the
context of the statement cannot make it defamatory and he has nothing personal
against the plaintiff. He asserted that the said statement has not occasioned the
plaintiff any damage. The 1st defendant asserted that the statement prompting the
plaintiff to institute this action is one of the statements that characterizes the usual
political debates especially between the
NPP which the 1 defendant belongs and the NDC which the plaintiff belongs
or which at least he is a well-known sympathizer.
The 2 defendant's case is that the pt defendant used the expression "krono
na w'abo" during a heated debate during which the 1 defendant and the other
panelist, traded accusations against each other on the said programme. It asserted
that the
said debate was so heated that its host of the programme could hardly hear to wh
om the said expression was referred to by the 1 defendant. It stated that its
programmes are streamed live on the internet and that the
said video on YouTube is not a republication of the programme. The 2 defendant
contended that upon realizing the said connection of the expression to plaintiff, it
caused its host to apologise to
the plaintiff on the same platform upon which the matter
was published and has since furnished the plaintiff a recorded copy of the said
apology. The 2 defendant asserted that having apologized publicly to the plaintiff,
notwithstanding the fact that it does not admit any liability, it is pointless for the
plaintiff to still maintain it as a defendant in this suit.
The issues set down for trial by the plaintiffs against the defendants are as follows:
Learned counsel for the plaintiff submitted in his written address that from
the pleadings and evidence on record, it is not in dispute that the publication/
statement complained of by the plaintiff was made by the 1 defendant as it was
admitted by the defendants. He stated that having admitted to making the
statement, no further evidence is required to prove same.
This issue is not in doubt so I find as a fact that the 1 defendant made/published
of the plaintiff the statement referred to in paragraph 14 of the plaintiffs
Statement of Claim.
Regarding the issue of whether or not the statement made by the 1 defendant
and referred to in paragraph 14 of the Statement of Claim is defamatory of the
plaintiff, the plaintiffs case that the statement complained of have been generally
understood by right thinking members of the society to mean that he is dishonest
in his personal and business dealings and that the source of his wealth is criminal
activity (stealing) and that he built his wealth through stealing.
PW2 stated that he is a media
consultant and the plaintiff is his cousin. He said he watched the video of the said
programme on YouTube and by the said statement, he understood the
1 defendant to be saying that the plaintiff acquired his wealth and success
through the crime of stealing. According to PW2, many people who
left comments in the comment section of the YouTube video at the time ridiculed
the plaintiff and some hurled insults at him. He asserted that the said comments
by the viewers affected negatively the estimation he had for the plaintiff and he
called him to tell him. PW2 contended that he told the plaintiff that the said
statement
and comments were damaging to his reputation and business and the plaintiff tol
d him that several people have expressed similar concern about the video so he w
ill take the necessary legal action after advice from his lawyers. Under cross-
examination by counsel for the 2 defendant, PW2 said he first watched the video
through WhatsApp before later on YouTube.
Under cross-examination by counsel for the plaintiff, DWl agreed that the
said statement by the 1 defendant
of the plaintiff is one that affects reputation and the perception the viewers of the
2 defendant would have of the plaintiff. DWI agreed that such a statement will
mean that the plaintiff is a thief and a criminal who
has made his wealth through stealing.
1. That the words were defamatory,
2. That the words are referable to the claimant, or plaintiff,
3. That the words were published (to at least one person other than
the claimant) by the defendant.
1. That the communication or the words spoken is capable of a defamat
ory meanmg.
2. That the words were actually defamatory.
3. That the statement was made in reference to the plaintiff.
4. That the statement was published or made known to some other person o
ther than the person to whom it is written or spoken.
Under cross-examination by counsel for the plaintiff, the 1 defendant stated that
the statement he made of the plaintiff for which he is in court is not true.
From the analysis of the totality of the evidence adduced, all the elements needed
to establish the tort of defamation as listed in this judgment have been proven in
this matter. I therefore find as a fact that the statement made by the 1 defendant
and referred to in paragraph 14 of the Statement of Claim of the plaintiff is
defamatory of the plaintiff.
Under cross-examination by counsel for the plaintiff, DWI agreed that a video
can only be uploaded after the video is done or after the programme has ended.
DWI agreed that the 2 defendant has a very large viewership on television and
YouTube. He admitted that the said apology he claimed the 2 defendant rendered
to the plaintiff is not on their YouTube channel. During cross-examination by
counsel for the 2 defendant, DWI said as producer of Adekye Nsroma programme
he was in the same arena with the panelists and the host and watched it whilst it
was ongoing live and not from the screen. DWI confirmed that the panelists on
the said programme were the I defendant and the other Asafo Agyei a
representative of the NDC political party. DWI said he heard the I defendant
threaten the host of the show that if he failed to restrain the NDC panelist he was
going to walk out of the studio.
Learned counsel for the plaintiff submitted that the evidence on record
establishes that;
a. The 1st defendant was invited by the 2 defendant to the programme on
which the statement was made.
b. In the course of the programme and when the 1 defendant made the wild
allegations against persons including the plaintiff, the 2 defendant did
not call the 1 defendant to order.
c. The 2nd defendant subsequently uploaded the programme on its YouTube
platform thereby making it accessible to all persons who may have
missed the live telecast.
He submitted that from the established facts on record, it is beyond dispute that,
the 2nd defendant afforded the 1 defendant with the avenue to publish the
statements of the plaintiff without any hindrance whatsoever by the 2 defendant.
Learned counsel for the 2 defendant submitted in his written address that it
is without dispute that the 2 defendant afforded the panelists the opportunity
to express their views on the issues set for the day on its platform. He submitted t
hat that gesture is the practical means by which the 2 defendant seeks to aid in
giving effect to freedom of speech and expression as enshrined in Article 21 of the
1992 Constitution. He asserted that the plaintiffs case is that the 2 defendant did
not call the 1 defendant to order when he made those comments and
contended that it will be preposterous for any person to expect the 2 defendant to
anticipate what a panelist will say while on its platform. Counsel for the
2 defendant asserted that it is phenomenal and the court should take judicial
notice of the fact that political discussions have the tendency of yielding to heated
debates during which discussants may trade insults, allegations and in some
extreme cases, physical blows. He quoted Section 9 of the Evidence Act, 1975
(NRCD 323) on judicial notice and submitted that judicial notice may be taken at
any stage of the action. He stressed that the case of the 2nd defendant in
respect of the said comments is that the programme degenerated into a heated
argument making it difficult for the host of the programme to hear exactly what
the panelists said to each other during that brief period. He said the answers of
PW2 during cross-examination affirms the position that political shows have the
tendency of degenerating into heated arguments and that
from exhibit 2, the debate became heated. Counsel for the 2 defendant asserted
that the 2 defendant's case is that during the heat of the debate, it was difficult to
hear what the panelists were saying to each other such as could put on the
2nd defendant the immediate responsibility to intervene in favour of the plaintiff.
He stated that had the host heard the comments complained of there and then, he
would have intervened for the plaintiff. He contended that PW2 confirmed that it
was difficult to hear the comments made by the 1 defendant. He submitted that
upon seeing the heated debate the 2 defendant took off the programme obviously
to forestall the escalation of the debate. He stated that in the circumstances, that
was the best means to deal with the situation.
I deliberately reproduced the evidence of DWl in detail which confirmed that
such programmes could be heated. It is difficult to understand why DWl as the
producer of the said programme, knowing such programmes could be so heated,
claimed he could not hear the panelists yet he did not do his duty as the producer
to instruct the host to regulate the panelists to maintain order on the programme
so that their viewers will benefit from the programme. The evidence of DWl
demonstrates the failure of him as the producer, the host at that time and in effect
the 2nd defendant in regulating or moderating the said panelists resulting in the
2nd defendant being used by the 1 defendant to publish the said defamatory
words. This where the liability of the 2 defendant is evident.
The 2 defendant claims it rendered an apology to the plaintiff but did not
tender evidence of same nor produce the said Sammy Gyamfi to confirm receipt
of a copy of the said apology from the 2 defendant to the plaintiff. Since the
2 defendant was aware from the plaintiffs pleadings (Reply) before the trial that
he contended that no apology has been rendered to him nor he been given a
recorded copy of the said apology, the 2 defendant in its own interest should have
presented evidence of the said apology in court but it failed or neglected to do so.
From the evidence led, it is not in doubt that the 2 defendant afforded the
1st defendant with an avenue to publish the said
statement and I find that as a fact.
Learned counsel for the plaintiff submitted that from the defendant's case they
have put up a defence to the effect that, the statement made by the 1 defendant is
not defamatory since it was made in the heat of the moment or that the
statement constitutes mere vituperation and therefore not actionable. He stated
that although the defence advanced by the defendants may be true, it is not
applicable in all cases especially in this instant case where all the parties to the
dispute are Ghanaians
and the law requires that custom should be applied to determine whether the stat
ement is defamatory or not. He cited Wankyiwaa v. Wereduwaa and Another
[1963] 1 GLR 332-337 where it was held in holdings 1 and 2 as follows:
Counsel also cited Afriyie v. Dansowah [1976] 2 GLR 172-178 which
addressed the issue of mere vituperation in defamation action in its holdings 1 a
nd 2 as follows:
1. Where persons were subject to customary law, the law applicable to a
slander action was customary law and a party did not need to elect which law he
was proceeding under. A trial judge had first to determine whether the
words complained of were spoken and of the party complaining. It then
became necessary to determine whether they were defamatory and lastly whether
they were false, for slander under customary law was actionable per se
without proof of special damage provided it was false.
2. A trial judge who dismissed a slander action at customary law on the ground that
the words, if spoken at all, were spoken in the course of a quarrel and in the heat of
passion and therefore were not actionable, failed to draw
the necessary distinction between slander at common law and slander at
customary law, and such summary dismissal of the action precluded him
from properly evaluating the evidence.
Learned counsel for the plaintiff submitted that should the Court even apply
the common law to the instant case, the defence put up by the defendants will stil
l not avail them because, in all the cases where words said in anger or
vituperation
were held not to be actionable, the action was between the two parties directly in
volved in the vituperation so the instant case is distinguishable from all the decid
ed cases. He explained that the plaintiff herein was not a party to the verbal
exchanges or quarrels hence the principles of the authorities can be
distinguished from this case. He cited Sobgaka v. Tamakloe [1973] 1 GLR
25, where Francois J (as he then was) said at pages 27-28:
"...Again I must mention that even where the authorities talk of vulgar abuse not being
the subject of an action for slander at common law they confine themselves to an
exchange of words or a slanging match in vituperation. This was not the case
in the instant appeal. The facts show that one party and one party only delivered the s
tinging blows ... "
Counsel for the plaintiff emphasized that from the above case, in each case where
a defence of vituperation is raised, the court must determine the defence on its
merits as well as determine if the defence is applicable.
He stressed
that they are mindful of the decision in Bonsu v. Forson [1964] GLR 45-51 wherei
n the Supreme Court held that words spoken in the heat of passion were not
defamatory. He asserted that the facts of that case and the instant case
are completely different therefore making the decision in the case not applicable
in
the instant case. He stated the distinct features between the two cases as follows:
a. In the Bonsu case, the action was instituted by the plaintiff who was himse
lf involved in the quarrel. However in this case, the plaintiff was not a
party to the discussion or heated debate in which the statement forming
the basis of this action was made.
b. In the Bonsu case, the parties engaged in a heated exchange of words.
However in this case, the plaintiff had not engaged in any exchange of
words with the 1 defendant.
c. The words published by the 1 defendant was done without any provoca
tion form the plaintiff herein unlike the Bonsu case.
Counsel for the plaintiff submitted that in determining the .weight to attach to
the testimony of a witness, the Court is required to consider several factors
including those provided under Section 80 of the Evidence Act, 1975 (NRCD 323).
He listed the matters to be considered in attacking or supporting the credibility of
a witness as provided in Section 80 (1) and (2) of
NRCD 323 and asserted that the 1 defendant was/is not a credible
witness and his evidence must not be given any weight by the Court. He gave
examples from the evidence on record where the 1 defendant preferred to answer
with "no comment" when asked direct questions and asserted that it is a clear case
of dishonestly on the part of the 1 defendant.
Under cross-examination by counsel for the plaintiff, the 1 defendant said he was
not aware that the plaintiff has never held any political office or that he is a
member of the NDC. The 1 defendant claimed he is not a member of the NPP and
explained that he is a member of the government communication team so he
speaks on behalf of the party and government in power. The 1 defendant asserted
that the debates on radio and television are always heated and they say what they
want to say and defend themselves. The 1 defendant said he is not familiar with
who the plaintiff is. He admitted that UTV is a television station that is available
to the general public. He said he was aware that the programmes shown on UTV
specifically the Adekye Nsroma programme has a considerable number of
viewership and that when he sits on that programme and makes statements be it
true or false, it reaches the
viewership of UTV either through their YouTube channel or television. The 1 defe
ndant said he knows the plaintiff to be a businessman and a brother of the former
President of Ghana John Dramani Mahama. The I defendant alleged that it is an
open secret to all political commentators and panelist who go on radio and
television to represent the current communication team of the NDC that they
profile themselves as coming from the plaintiffs end. The 1 defendant stated that
the statement he made of the plaintiff for which he is in court is not true.
From the totality of the evidence adduced, I find as a fact that the statement made
by the 1 defendant given its context can be said to be defamatory because of
the circumstances of this matter as explained earlier in this judgment.
The last issue to determine is whether or not the plaintiff is entitled to the
reliefs sought. Learned counsel for the plaintiff asserted that from the pleadings
of the parties some matters are not in dispute and by law there is no requirement
to
lead evidence on them as held in In re Asere Stool; Nikoi Olai Amontia IV (subs
tituted by Tafo Amon II) v. Akotia Oworsika III (substituted by
Laryea Ayiku 111) [2005-2006] SCGLR 637.
He submitted that from the pleadings and evidence before the court the
following allegations have been settled by the parties;
a. The statement/publication complained of was made by
the 1 defendant while on a talk show run and telecast by the 2 defendant.
b. The name of the plaintiff was first introduced into the discussion by the 1
defendant.
c. The 1st defendant admits that the plaintiff is a businessman.
d. The statement made about the plaintiff by the 1 defendant is not true.
e. The show remains on the 2 defendant's YouTube channel where it can
be assessed anybody.
f. The plaintiff was not a panelist on the said show and neither was he the subject
matter of the discussion on the show.
Learned counsel for the plaintiff emphasized that in a civil action, a party is
to establish his or her case on a preponderance of probabilities and relied on
Sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323) and the cases
of Ackah
v. Pergah Transport [2010] SCGLR 728 at 736, Bogoso old Ltd. v. Ntrakwa [2011]
1 SCGLR 416, Kiah v. Phoenix Insurance Co. Ltd. [2012] 2 SCGLR 1139 and
Majolagbe v. Larbi [1959] 190.
He asserted that the plaintiff has led enough evidence to establish the ingredients
of the tort of defamation as outlined in the case of Mrs. Abena Pokuaa Ackah
v. Agricultural Development Bank supra so he is entitled to the reliefs sought
against the defendants, having regard to the fact that the plaintiff is notoriously
known
in Ghana as a businessman of considerable repute. He concluded that the defend
ants must be made to pay for their actions so as to guide them in their future
endeavours and to be a constant reminder to them to refrain from attacking the
reputations of persons without cause or basis.
Learned counsel for the 1st defendant submitted in his written address that
the plaintiff is under legal obligation to
demonstrate that the reliefs sought are borne by evidence and if he fails to
introduce sufficient evidence to prove his case on the preponderance of
probabilities, his case ought to fail. He relied on Sections 11(1), 12 (1) and 14 of
the Evidence Act, 1975 (NRCD) and the cases of Ababio v. Akwasi III [1994-95]
GBR 774, Citizen Kofi Entertainment Concept Ltd. v
Guinness Ghana Breweries Ltd. (2012) GMJ 167, Majolagbe
v. Larbi supra and Zabrama
v. Segbedzi (1991) 2 GLR 221.
Learned counsel for the 2 defendant submitted that as against the 2 defendant,
the plaintiff has not led enough evidence to establish defamation. He asserted that
to establish defamation against a party, a plaintiff must prove that the defendant
has published or is responsible for publication of
defamatory material, which is reasonably understood to refer to the plaintiff,
either by name or by some other means of identification. He submitted that
considering the facts and the evidence the 2 defendant not being the author of the
comments complained of, cannot be
liable for the comments made, even if the court holds same as defamatory.
He stated that the role played by the 2 defendant as far as the publication
complained is concerned is to provide a platform for citizens such as the
1 defendant to exercise their constitutional right of freedom of expression. He
asserted that the 2 defendant did not instigate, cause, goad or in any way inspire
the 1 defendant to make
the comments he made and to that extent the 2 defendant being an innocent disse
minator of the comments complained of ought to be protected, and not held liable
in this matter. Counsel cited the English case of Metropolitan
International Schools Ltd. (TIA Skillstrain and/or Train2Game) v.
Designtechnica Corp (TIA Digital Trends) and Others QBD 16 JUL 2009.
Learned counsel for the 2 defendant submitted that until after the review of
the programme, the host of the said programme was not in the position to know
or
have any reason to believe that the comments were defamatory of the plaintiff due
to the noisy nature of the debate and cited the case of
Bottomey v. Woolworths (1932) 48 T/L. R. 521 in support of his assertions. He
urged the court to accept the 2 defendant's claim of innocence in respect of the
said comments as the 2 defendant could not have anticipated them. He claimed
the 2 defendant took off the said programme and that act should avail to it relief
from any liability as the act was
to abate the publication of any further comments of unpalatable nature.
Learned counsel for the 2 defendant submitted that one of the reliefs sought by
the plaintiff is an apology and the 2 defendant stated that exactly two weeks after
the programme was aired, and upon review of same rendered an apology to the
plaintiff on the same platform where the comments were made. He asserted that t
he fact of the 2nd defendant rendering an apology to the plaintiff is without
dispute as it was confirmed by PW2 during cross-examination. Counsel said
having made an apology, there is not residuary responsibility towards the
plaintiff to warrant the court's intervention so to that extent, the plaintiff is not
entitled to his reliefs against the 2 defendant. He concluded that the court should
dismiss the plaintiffs claim against the 2 defendant.
I have considered the totality of the evidence adduced and detailed submission of
all learned counsel herein. The facts and evidence adduced indicates that the
plaintiff is not a politician nor holds a political office nor authorised any person to
be on the said programme. The facts and evidence establish that the plaintiff is a
businessman and was not a party to the political discussions the 1 defendant was
involved in on the day in question. It is a fact that it was the 1 defendant who
mentioned
and introduced the name of the plaintiff in the said programme. The facts and evi
dence establish that the host of the said programme did not adequately regulate
the said programme nor get the 1st defendant to substantiate or retract his
defamatory statement against the plaintiff. The facts and evidence adduced indica
tes that even after the live programme the said defamatory statement was
available on the 2 defendant's YouTube channel. These are the facts and
circumstances of this matter and form the basis of the decision herein.
No other issue(s) arose out of the pleadings or evidence.
An evaluation of the evidence adduced indicates that the plaintiff has discharged
the burden of proof on him as required by Sections 11(1) and (4) of the Evidence
Act, 1975 (NRCD 323). Judgment is therefore entered for the plaintiff against the
defendants jointly and severally for the reliefs sought.
With respect to relief (c) on "An order directed at the 1 defendant, compelling
him to publish in the Daily Graphic and on UTV an unqualified apology to the pl
aintiff and a retraction of the said statements with the same prominence and
passion as the defamatory statement", I grant the said relief without the aspect of
"passion as the defamatory statement" as the Court has no known method to
determine that
or measure its performance or otherwise. It is trite that the Court does not grant or
ders it cannot supervise.
Relief (e) is on Punitive/exemplary damages of Two Million Ghana Cedis
for defamation. The plaintiffs case that he is a highly respected and prominent bus
iness leader and an astute entrepreneur with a formidable reputation which
transcends the borders of Ghana and spans across the world. He contends that as
a result of the defamatory statement made by the 1 defendant and publish d by
the 2nd defendant, his character, pride, reputation, credibility and credit has been
tarnished/reduced
in the estimation of right thinking members of the Ghanaian society and the inter
national community at large. He gave the particulars of damage as follows:
I have considered the factors stated in Order 74 rule 2(3) of the High Court
(Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 with respect to costs.
I have also considered the facts and peculiar circumstances of this case. In view of
that, I am of the opinion that GH¢10,000.00 is adequate as costs. I therefore award
costs of GH¢10,000.00 to the plaintiff against both defendants herein.
The 1st defendant asserted that the statement prompting the plaintiff to institute
this action is one of the statements that characterizes the usual political debates es
pecially between the NPP which the 1 defendant belongs and the NDC which the
plaintiff belongs or which at least he is a well-known sympathizer.
If this assertion is true, then as we prepare for elections next year, political
panelists on radio, television and other shows need to be circumspect with their
words as false accusations have legal consequences. The citizens deserve
discussions on solutions to national issues and not attacks on personalities. It is
hoped that the producers
and hosts of such programmes would regulate their panelist to achieve this aim.