BONSU v.

FORSON
[1964] GLR 45

Division: IN THE SUPREME COURT

Date: 27 JANUARY 1964
Before: SARKODEE-ADOO, OLLENNU AND BLAY JJ.S.C.

Defamation—Slander—Defamatory statement—Statement that “You are a thief, you are a hopeless

lawyer . . .”—Statement alleged to have been made in course of a quarrel—Whether defamatory or mere
vulgar abuse—Whether words understood as defamatory of the plaintiff—Duty of judge sitting as judge
and jury.

Evidence—Witnesses—Testimony of plaintiff and defendant—Both adjudged as truthful

witnesses—Evidence of defendant preferred—Whether court right in accepting defendant’s evidence in
preference to plaintiff’s.

HEADNOTES
The appellant instituted this action against the respondent at the High Court, Kumasi, for publishing
defamatory words about him. The respondent was alleged to have said that the appellant was a thief, a
hopeless lawyer who depended on one Owusu Afriyie, another lawyer, for his cases, and a hopeless M.P.
The respondent denied having spoken those words and contended that even if the words were spoken,
they could not be defamatory because of the circumstances in which they were spoken. The trial judge
held that the appellant had not sufficiently proved that the said words were spoken by the respondent. He
held further that even if it had been proved that the respondent spoke the words, since they were uttered in
the heat of a quarrel, they could not be said to be capable of defamatory meaning. On appeal, it was
argued for the appellant that since the trial judge found that the words used were prima facie defamatory,
he was wrong in holding that the appellant failed to prove that the hearers understood them to be
defamatory. It was also contended that since the trial judge found that both the plaintiff and the defendant
were truthful, he was wrong in preferring the evidence of the defendant to that of the plaintiff.
Held, dismissing the appeal:
(1) the trial judge was right in holding that the onus which lay on the appellant to prove that the words
were spoken by the respondent had not been discharged.
(2) Where a judge sits as a judge and jury, as a judge he has to decide as a prior question of law,
whether the words are capable of a defamatory meaning; if he should hold that they are, he must
proceed as a jury, to decide whether or not those words which are capable of a defamatory

[p.46] of [1964] GLR 45

meaning or which are prima facie defamatory were understood by the hearers as defamatory of the
plaintiff. In the particular circumstances, the trial judge was justified in holding that the alleged
words, even if spoken were uttered in the heat of passion and could not therefore be said to be
defamatory.
(3) Although a witness may be truthful, since the opportunity and capacity for acquiring facts of an
incident may be limited, he may not be in a position to acquire correct and accurate knowledge of
all the facts, and may give an honest and mistaken account of the incident.
Judgment of Djabanor J. reported in [1962] 1 G.L.R. 139, affirmed.

CASES REFERRED TO
(1) Adam v. Ward [1917] A.C. 309; [1916-17] All E.R. Rep. 157; 86 L.J.Q.B. 849; 117 L.T. 34; 33
T.L.R. 277, H.L.
(2) Capital and Counties Bank Ltd. v. Henty (George) & Sons (1882) 7 App. Cas. 741; 52 L.J.Q.B.
232; 47 L.T. 662; 47 J.P. 214; 31 W.R. 157, H.L.
(3) Mulligan v. Cole (1875) L.R. 10 Q.B. 459; 44 L.J.Q.B. 153; 33 L.T. 12; 39 J.P. 805
(4) Beswick v. Smith (1907) 24 T.L.R. 169, C.A.
(5) Thorley v. Kerry (Lord) (1812) 4 Taunt 355; 3 Camp. 214n; 128 E.R. 367
(6) Christie v. Robertson (1899) 1 F.1155; 36 S.L.R. 899; 7 S.L.T. 143
(7) Cheetham v. Bannerman (1881) Sar.F.L.R. 23
(8) Amoah v. Djabi (1926) D.Ct.’26-’29, 43
(9) Chuku v. Nkrumah (1958) 3 W.A.L.R. 471

NATURE OF PROCEEDINGS
APPEAL from a judgment of Djabanor J. (reported in [1962] 1 G.L.R. 139) wherein he dismissed the
plaintiff’s action against the defendant for damages for slander.

COUNSEL
B. J. da Rocha for the appellant.
J. Owusu-Yaw for the respondent.

JUDGMENT OF OLLENNU J.S.C.

We dismissed the appeal in this case on 8 January 1964 reserving our reasons for so doing; we now
proceed to give the reasons.
By his writ of summons the plaintiff claimed £G15,000 and an order for injunction restraining the
defendant from speaking and publishing defamatory words against him. The writ itself disclosed no cause
of action; but this defect, however, was cured by the statement of claim which was filed together with the
writ of summons.
The plaintiff was at all material times a legal practitioner and a member of Parliament for the Sekyere
West electoral district; he occupied a flat in house No. AA8, Kwame Nkrumah Road, Kumasi, as a tenant
of the defendant. He and the defendant had been friends for a number of years prior to the incident which
led to the action; and from letters he wrote to the defendant while a student in the United Kingdom, which

[p.47] of [1964] GLR 45

were admitted in evidence, it is clear that the plaintiff had, in the past, regarded the defendant as his
benefactor.
The words complained of are: (1) “You are a thief”; (2) “You are a hopeless lawyer; Se ennye Owusu
Afriyie a anka wonnya asem nni”; (3) “You are a hopeless M.P.” In respect of these words the plaintiff
pleaded in paragraphs (7), (8), and (9) of his statement of claim that:
“(7) By the words `You are a thief’ the defendant meant and was understood to mean that the plaintiff had
committed a criminal offence punishable with imprisonment.
(8) By the words `You are a hopeless lawyer; Se ennye Owusu Afriyie a anka wonnya asem nni’ the
defendant meant and was understood to mean that the plaintiff was incompetent and inefficient in his
profession as a lawyer.
(9) By the words `You are a hopeless M.P.’ the defendant meant and was understood to mean that the
plaintiff was unfit and of no use in his office as a member of Parliament for the Sekyere West
electoral district.”

The defendant denied speaking or publishing the words as alleged by the plaintiff; he further pleaded that
even if the said words were uttered and published, they were not, in the circumstances of the case
understood to bear any meaning defamatory of the plaintiff.
Upon these pleas the following issues were joined: (1) Whether or not the defendant spoke and published
the words complained of; (2) whether or not the words complained of are defamatory or were understood
to bear a meaning defamatory of the plaintiff; and (3) The quantum of damages.
The questions (1) whether or not the words were spoken and published and (2) whether or not they are
defamatory of the plaintiff, are questions of fact which, in a trial by jury, would be left by the judge to the
jury. But the question of whether or not the words are capable of referring to the plaintiff and capable of a
defamatory meaning in the minds of reasonable persons in the circumstances of the case, is a question of
law which the judge must decide as a preliminary issue: See Halsbury’s Laws of England (3rd ed.), Vol.
24, p. 107, para. 198. In Adam v. Ward,1 Lord Dunedin stated the principle thus:
... if there is controversy as to whether the words used are defamatory or not, it is for the judge to determine
whether they are capable of a defamatory meaning, and, that being resolved in the affirmative, it is for the
jury to find whether they are actually defamatory or not.”

See also the Capital and Counties Bank Ltd. v. Henty.2 The principle is further explained in Halsbury’s
Laws of England (3rd ed.), Vol. 24, p. 107, para. 198 as follows:
“The question whether the words complained of are defamatory is for the jury, but, before the question is
submitted to them, it is for the trial judge to rule upon the evidence whether the words complained of are
capable of

[p.48] of [1964] GLR 45

referring to the plaintiff and capable of bearing a defamatory meaning in the minds of reasonable persons in
the circumstances of the particular case.”

Emphasis must be laid on the words “in the circumstances of the particular case.”
The same principle applies to a judge sitting alone, that is, as a judge and jury; he has first to decide this
preliminary question of law, for if he should decide that the words are not capable of defamatory
meaning, he should stop the case and enter judgment for the defendant as he would have done in a trial
with a jury: See Mulligan v. Cole,3 and Beswick v. Smith.4
We observed earlier, in the comment on the passage quoted from Halsbury, that emphasis should be laid
on the words “in the circumstances of the particular case” because words prima facie innocent, may, when
spoken under certain circumstances, or in a certain setting, be defamatory; on the other hand, words
which in their ordinary and natural meaning are defamatory may, nevertheless, when uttered in certain
circumstances, not be understood by people who bear them to be defamatory of anybody. Again in the
case of slander, words which prima facie impute a crime or other defamatory matters will not be
actionable per se if it is clear from the circumstances in which they were uttered that they could only be
mere general vituperation or vulgar abuse, which could be so understood by hearers; so that although the
judge may decide as a matter of law that words complained of are capable of defamatory meaning, a jury,
or a judge sitting as judge and jury may, in the circumstances of a particular case, find that the sense in
which the words were used and in which they must have been understood, is that they are non-actionable,
vulgar, scurrilous epithets: See Thorley v. Lord Kerry,5 and Christie v. Robertson.6 On the general
principle that no action of slander lies for mere words of heat or vulgar abuse, see Halsbury’s Laws of
England (3rd ed.), Vol. 24, p. 25, para. 47, Gatley on Libel and Slander (5th ed.), p. 54, para. 87, also the
following Ghana cases: Cheetham v. Bannerman,7 Amoah v. Djabi,8 and Chuku v. Nkrumah.9
The learned trial judge followed the proper procedure in this case. He came to the conclusion that if the
words were spoken, then they were spoken of the plaintiff; and on the issue of whether the words are
capable of defamatory meaning he also came to the conclusion that they are so capable.
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

[p.49] of [1964] GLR 45

f 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. There is ample
evidence which warrants that finding.
The learned judge, finally, on the major issue of whether the particular words complained of were the
words used by the defendant on this occasion of high infuriation, came to the definite conclusion that the
plaintiff failed to prove that the words he alleged were the words used by the defendant during the heated
quarrel which, but for the intervention of some persons, would have resulted in a fight between him and
the defendant.
Three grounds of appeal were argued:
“(1) Since the learned judge found the words complained of to be defamatory in their ordinary meaning he
was wrong in holding that the plaintiff’s witness Kwabena Bonsu should have been asked what he
understood the words to mean.
(2) The learned judge held that the words complained of were not the words used by the defendant, but he
failed to make any findings as to the words used. This is wrong in law and renders the trial
unsatisfactory.
(3) The judgment is against the weight of evidence.”

Dealing with the issue whether or not in the peculiar circumstances of this case the words complained of,
though prima facie capable of bearing defamatory meaning, were understood by the hearers as
defamatory of the plaintiff, the learned judge expressed regret that the one only witness called for the
plaintiff did not assist the court in its task of making a finding upon that issue. He said10:
“Again if counsel concedes that calling the plaintiff a thief was mere vulgar abuse and therefore not
actionable-similarly all the other words used by the parties about each other must be considered mere vulgar
abuse. Counsel wondered whether this witness should have been asked what he understood the words to
mean, but hastily left the matter there. That, I regret, is an error, for there can be no actionable publication of
 a libel or slander to persons who do not understand the words to be defamatory or defamatory of the plaintiff:
Sadgrove v. Hole [1901] 2 K.B. 1 at p. 6, C.A. I think the plaintiff’s witness who was brought in to prove
publication of the slander should also have been asked what he understood the words he heard to mean. He
may very well, knowing the high reputation and integrity of the plaintiff, not have been impressed at all by
the words. In fact he too may have considered them mere vituperation and vulgar abuse.”

Counsel for the plaintiff submitted that having held that the words complained of are prima facie
defamatory, the learned judge erred in directing himself that evidence of what hearers understood the
words to mean is a necessary matter for consideration because since the words are prima facie
defamatory, the plaintiff need prove nothing more to succeed except that they were published of him.
This criticism is based upon a misconception of the duties of a judge sitting as judge and jury.

[p.50] of [1964] GLR 45

We have already pointed out that as a judge he has to decide as a prior question of law, whether the words
are capable of defamatory meaning; if he should hold that they are, he must proceed as a jury, to decide
whether or not those words which are capable of defamatory meaning or which are prima facie
defamatory were understood by the hearers as defamatory of the plaintiff. In the performance of his said
duty as a one-man jury, evidence of the hearers is essential particularly where there are circumstances
which might well make the hearers regard the words as nothing more than vulgarism. The position would
be different if there are no such circumstances, in which case once the words complained of are
defamatory in their natural and ordinary meaning, all the plaintiff need prove more, as earlier observed, is,
that they were published of him: See Gatley on Libel and Slander (5th ed.), p. 125, para. 204. But there
can be no publication unless the manner and circumstances in which the words were spoken are such as to
convey the defamatory meaning to the person to whom they are communicated: See Gatley on Libel and
Slander (5th ed.), p. 82, para. 133, and p. 86, para. 138.
On the vital issue of fact as to whether or not the defendant spoke and published the words complained of
as alleged by the plaintiff, the judge, after careful examination of the evidence came to the conclusion that
the plaintiff failed to prove that the defendant spoke and published them. In the course of his
consideration of this issue the learned judge made certain observations some of which formed the subject
of strong criticism by counsel for the plaintiff in his submission on the second and third grounds he
argued. The learned judge said inter alia11:
“... According to the plaintiff and his witness they were spoken. According to the defendant and his three
witnesses those were not the words used.
They all agreed that there was a quarrel. From their evidence there is nothing to discredit either the plaintiff
or the defendant. My own view is that they were so engrossed in their quarrel that they cannot really
comprehend the actual words used by either party. I therefore looked for corroboration of their stories from
their various witnesses. And of the witnesses I was more impressed with Ashaley’s evidence than that of
Kwabena Bonsu. Kwabena Bonsu said he was in the kitchen at the start of the quarrel when he came to cool
down his master. But his master said he was cleaning up the rooms that had been soaked with rain water. I
agree with the plaintiff and say that it is more probable that Kwabena Bonsu was cleaning up the water and
not standing by or near his master trying to separate the parties. In those circumstances I would say that it is
less probable that he would hear the exact words used in the quarrel which according to him lasted about half
an hour. I think the scales weigh in favour of the defence on the facts too, namely, that the words complained
of were not the words used by the defendant.”

It was submitted that having held that there was nothing to discredit either the plaintiff or the defendant,
the learned judge erred in preferring the version of the defendant to that of the plaintiff on the grounds
that the defendant’s version of the words used was corroborated by his witness
[p.51] of [1964] GLR 45

Ashaley, while the plaintiff’s version was not corroborated by his only witness Kwabena Bonsu.
A witness may be a truthful witness and his credibility may be beyond reproach by any standard; but his
opportunity for acquiring the facts about an incident may be so limited, his perception so blurred by
circumstances, that he may be incapacitated from acquiring correct and accurate knowledge of the facts;
in those circumstances, despite his veracity, the facts the witness relates, may be nothing more than an
honest mistaken account of the incident. Thus, as the learned judge pointed out, two persons being
engrossed in a bitter quarrel, each concerned primarily with finding all the insulting words he could use
which would hurt his adversary can hardly be expected to take such meticulous account of the words of
insult rained against him by his opponent, as to be able afterwards to relate them correctly. Indeed, so
tidily were the alleged words related in evidence, that they do not follow the logical sequence of the
incident, with the result that they were so disjunctive that together they cannot make sense to a reasonable
person. In such a case no court will be justified in founding a decision upon the plaintiff’s account unless
it can find substantial corroboration from a truthful independent witness, though as a general rule of law
corroboration is not required in such cases. The only person whose evidence tended to corroborate the
plaintiff was his cousin and driver Kwabena Bonsu; but he did not impress the court as a truthful witness;
consequently the court was obliged to reject the plaintiff’s evidence. This in our view the court was
justified in doing.
It was further submitted that the learned judge erred in holding that the evidence of the defendant’s first
witness corroborated the evidence of the defendant, and therefore the balance of probabilities is in his
favour. This submission begs the question; the onus was upon the plaintiff to prove that the defendant
spoke and published the words he complained of; he failed to discharge that onus, and that should be the
end of his case. It is immaterial whether or not the defendant succeeded in satisfying the court as to the
words he alleged he uttered, there is no onus upon the defendant in respect of that issue.
We are satisfied that the learned judge of the High Court dealt with the case in the proper way, and came
to the right decision. It is for these reasons that we dismissed the appeal.

DECISION
Appeal dismissed
N.A.Y.