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  • 1961-01-31
  • GLR 77-80
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Practice?-Discontinuing an action in the native court without reserving liberty to institute a fresh action?-Whether such discontinuance is a bar to a fresh action.Defamation?-Slander?-Whether actionable per se under customary law.



APPEAL from the judgment of the district magistrate's court (constituted by the Government Agent, Cape Coast) affirming a judgment of the Native Court "A", Fanti Confederacy, in a claim for damages for slander. The facts are set out in the judgment of Adumua-Bossman, J.

The appeal is against a judgment of the Native Court ?"A?" of the Fanti Confederacy, confirmed by the magistrate's court (constituted by the Government Agent, Cape Coast) by which the plaintiff-respondent's claim to: ?"Damages for wantonly making slanderous statement against plaintiff in the presence of witnesses that the plaintiff is a mad woman?" was upheld, and the sum of G25 was awarded as damages by the native court, subsequently reduced to G10 by the magistrate.

When the appeal came before the court on the 17th June, 1957, after discussion between counsel and the court, the dispute between the parties was settled on the following terms:

(1) The plaintiff to be paid the sum of G5, together with one bottle of gin as pacification.

(2) She is to have the costs awarded her in the native court, and half the costs awarded her in the magistrate's court, but there are to be no costs of the appeal.

It was, however, agreed that, without prejudice to the settlement, the appeal was to be argued in view of two questions of law raised, namely: [p.78]

(a) Whether the filing of a notice of discontinuance by the plaintiff and the consequential striking out by the native court, (without any liberty to bring a fresh action expressly reserved), of a former or previous action, identical in terms with the fresh action operates as res judicata so that the trial court should not have investigated the fresh or second action at all.

(b) Whether, assuming the matter was not res judicata and was open for investigation and determination by the court, it was not essential that plaintiff should prove damage as understood in the law of libel and slander, i.e., pecuniary damage, to be able to sustain her claim, having regard, inter alia, to the case of Amoah v. Djabi1, in which Michelin, J. held that the use of the words "You are a thief" amounted to mere abuse and was not capable of sustaining an action of slander without proof of special damage.

As to the first question, neither counsel for the defendant-appellant who put forward the contention nor counsel for the plaintiff-respondent who maintained that the contention was incorrect, advanced any grounds or reasons, or referred to any authorities, in support of their respective views.

As to the second question, the contentions of counsel for defendant-appellant were as follows:- "I submit that in the circumstances in which the words were used they were not defamatory or slanderous in the view of native customary law and usage, because such words as Kwasia or Abua (fool or idiot), Abodam (mad person) are used colloquially as mere abusive words without intending any defamation."

Per contra, counsel for the plaintiff-respondent argued that the parties being natives, it was native customary law which was applicable. He referred to Sarbah's Fanti Customary Laws (2nd ed.) at p. 113, where the learned author has stated that: "all words which sound to the disreputation of a person of whom they are spoken, are actionable", and submitted that that was the law the courts below applied and that they were right.

After the submission of the above argument, the matter was adjourned for the court's considered views. Unfortunately, however, it was completely lost sight of, and it is only now, with the rediscovery of the docket amongst a pile of other old dockets, that the court proceeds to give its considered views on the points raised in the appeal.

Firstly, with regard to the point as to whether discontinuance of a suit in a native court by the plaintiff without obtaining leave or liberty to bring a fresh action, operates as res judicata, I think the question must be answered in the negative.

Discontinuance of a suit in the High Court under the old General Procedure Rules (now replaced by the Civil Procedure Rules) was governed by Order 39, r.12, which provides as follows: [p.79]

?"If before the date fixed for the hearing the plaintiff desires to discontinue any suit against all or any of the defendants . . . he shall give notice in writing of discontinuance . . . to the Registrar and to every defendant as to whom he desires to discontinue. Such discontinuance . . . shall not be a defence to any subsequent suit. If in any other case the plaintiff desires to discontinue . . . such discontinuance . . . may in the discretion of the Court be allowed on such terms as to cost and as to any subsequent suit and otherwise as to the Court may seem just."

The effect of the rule was considered in Awortwi v. Hendersons (Manchester) Ltd.3 in which Michelin, J. delivering the judgment of the Full Court said as follows4:

"The provisions contained in this rule, although not identical with, are analogous to the provisions contained in Order 26, rule 1, of the Imperial Rules of the Supreme Court. The construction to be placed on that rule, in the cases where the plaintiff has to obtain the leave of the Court ?'to discontinue?', was definitely decided by the judgment of the Court of Appeal in the case of Fox v. Star Newspaper Company (1898) L.R. 1 Q.B.D. 636, which was subsequently upheld by the House of Lords (See (1900) Appeal Cases 19) where it was held that, when the plaintiff has to obtain leave, it is only by the discretion of the Judge, that he can discontinue with the right of bringing another action for the same subject matter.?"

Awortwi v. Hendersons (Manchester) Ltd., supra was subsequently followed and applied in MacLaren Bros. (Manchester) Ltd. v. Albert Brandford Nartey5.

The old rule above set out is still in force in the district magistrate?'s court. In the High Court, however, it is what Michelin, J. referred to in Awortwi v. Hendersons (Manchester) Ltd. as "The analogous provisions contained in Order 26, Rule 1, of the Imperial Rules of the Supreme Court", which have been introduced to supersede the provisions of the old Order 39, r. 16, but of course, as pointed out, the effect is the same, that is to say, discontinuance by leave without liberty operates to bar a fresh action.

But in the native (or local) courts, no such provisions exist, and it is conceived that there may be withdrawal at any stage of the proceedings without the plaintiff being barred from bringing a fresh action, unless the court expressly orders or directs at the time of making an order allowing withdrawal, that no fresh action on the same facts shall be brought.

Turning now to the second question of law raised namely, whether the matter not being res judicata, it was not essential that plaintiff should prove damage as understood in the English law of libel and slander, the court's opinion or view is that the essential of proof of damage is not necessary in this instant case. It is that view which both the trial native court (the Native Court "A" of the Fanti Confederacy - the highest native court then in the area) and the learned magistrate took, and I am obliged to agree with them. [p.80]

There is a radical difference in the concept of slander and/or defamation as recognised in native customary law as compared with the concept as recognised in English law, to which sufficient attention appears not to have been paid in the past.

Since the arguments of counsel in this case and the adjournment of the matter for the court's consideration, the court has had occasion to deal with another case of slander and/or oral defamation, entitled Quacoe v. Dadson7 in which, in the course of its judgment, the court observed that:

"It is, I think, necessary to remind ourselves that the civil wrong of slander is known to and recognised by native customary law. Sarbah deals with it in Chapter VIII of his invaluable Fanti Customary Law (2nd ed.), p. 113, where he says: ?'Words which cause or produce any injury to the reputation of another are called defamatory, and, if false, are actionable. False defamatory words when spoken, constitute slander . . . Words imputing (inter alia) immoral conduct, crime, and all words which sound to the disreputation of a person of whom they are spoken, are actionable.?' He also refers to the customary form of punishment in the old days, whereby a person: ?'Found guilty for using slanderous words is bound to retract his words publicly, in addition to paying a small fine by way of compensation to the aggrieved [injured] party?'

"The civil wrong of slander, then, is known to, and recognised by, native customary law, and the Courts Ordinance [formerly the Supreme Court Ordinance] expressly provides that: ?'nothing in this Ordinance shall deprive the court 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 [Ghana] . . . Such laws and customs shall be deemed applicable in causes and matters where the parties are natives.?'

The question arises, therefore, whether in all cases where one native complains of slander uttered by another native against him, the court is not bound to apply the native customary law. The old reported cases are all referred to in Griffith's Digest (cols. 57, 58) under the heading ?'Defamation?'. They include Cheetam v. Bannerman, Afful v. Yambah, Accromah v. Frempong, Carnor v. Otum, and Amoah v. Djabi. These cases were all clearly between natives, and nothing appears in the reports of any of them to warrant the case being taken out of the purview of native customary law, yet all were decided in accordance with the English law of slander. The reason may have been that in none of these cases was the court's attention called to the existence of the native customary law, and to the mandatory terms of the section of the Courts Ordinance to which reference has already been made. The whole question, it seems to me, needs to be reviewed sometime by the Court of Appeal.?"

In the instant case it is clear there are no circumstances to take it outside the operation of native customary law, and the question therefore has to be faced fairly and squarely whether according to native customary law, mere abuse of another does not come within illustrious Sarbah's description of customary defamation as: "all words which sound to the disreputation of a person of whom they are spoken", and as such is actionable, without the necessity of the English requirement that such words should have produced actual or legally assumed pecuniary damage. The tendency of the modern decisions based on a recognition of the existence of a difference in the concepts between the customary and English systems, has been to recognise that mere abuse, at any rate to the hearing of third parties, is actionable according to customary concept.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

Dr. de Graft Johnson

Defendant / Respondent

Hayfron- Benjamin (Jnr.)


(1) Amoah v. Djabi (1926) 26-29 D. Ct. 43.

(2) Awortwi v. Hendersons (Manchester) Ltd. (1926) 26-29 F.C. 139.

(3) MacLaren Bros. (Manchester) Ltd. v. Nartey (1926) 26-29 D.Ct. 30

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

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