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ASARE v. GOMADO


  • New
  • 1961-12-08
  • HIGH COURT
  • GLR 760-764
  • Print

PREMPEH, J.


Summary

Libel?-Allegation that regional commissioner interfered with case in local court and with police investigations into theft charge Libel?-Defences of justification, fair comment and qualified privilege.

Headnotes

A cocoa farm belonging to the defendant's deceased brother was sold at a public auction by Agbevey, a licensed auctioneer at the instance of Klu and bought by a Jonathan Asare, brother of F. Y. Asare, the Regional Commissioner of the Volta Region, the plaintiff herein. The defendant, alleging that the sale was improper sued the purchaser, Klu and Agbevey in the Buem-Krachi Local Court, Division II for declaration of title. The case, it seems, went against him. Shortly afterwards he sent a letter to the President of Ghana, Dr. Kwame Nkrumah, with copies to the Commissioner of Police, Ghana, Assistant Commissioner of Police, Ho and some other persons. In that letter (reproduced in paragraph three of the statement of claim, see page 761 infra) he complained that the local court magistrate was prevailed upon by the Regional Commissioner, the plaintiff herein not to hear his case, and that in fact the case was dismissed without a hearing, and that a report he made to the police against the plaintiff's brother and some other persons for stealing cocoa from his farm was also summarily dismissed by the police as a result of interference by the plaintiff. The plaintiff instituted the present action for G5,000 damages for libel. The defendant stated that the statements he made in the letter were true, that those parts which were his opinions were fair comments, and that in any case the occasion for the letter was privileged. The defendant did not appear at the trial to contest the case.

Judgement

ACTION for damages for libel.

In this suit, the plaintiff claims G5,000 damages for libel published against him by the defendant. The libel complained of is contained in a letter written and published by the defendant of the plaintiff to Osagyefo, the Honourable Dr. Kwame Nkrumah, President of the Republic of Ghana, copies of which were published by the defendant to the Commissioner of Police, Ghana, and to the Assistant Commissioner of Police at Ho, and to Mr. E. T. Quarshie Simpson, licensed letter-writer, at Kpandu and to other persons.

The relevant paragraphs of the said letter containing the said libel are set out in paragraph 3 and the sub-paragraphs thereof of the statement of claim as follows.

"On or about the 17th October, 1960, the defendant falsely and maliciously wrote or caused to be written and published of the plaintiff the following words:

Subs. 5. Not very long ago, Kodjo Ntibri, my brother died; the farms, repeat are now administered by me. I did at this juncture, sue Jonathan Klu, the alleged judgment creditor, one Jonathan Asare, brother of the Regional Commissioner of the Volta Region and one John Agbevey, the licensed auctioneer before the Buem-Krachi Local Court, Division 2, Dodi Papase, for them to come and explain as to why the said cocoa farm could not be adjudged to be mine. Through the instigation of the Regional Commissioner, Hon. F. Y. Asare, the local court magistrate Mr. A. K. Danso refused to hear the case at all.

Subs. 6. I did at this time lodge to the Ghana police, Ho and Kpandu accusing both Jonathan Asare and John Agbevey of the offence of fraud or vice versa. The Ghana police, however, did refer me to the police, Kadjebi for action.

Subs. 7. Two police constables were detached for me. On our arrival at Jinjinso, we met the postal agent who also did accompany some others who entered my said cocoa farm and collected all the cocoa beans that were being dried by my labourers. Instead of the police to commit arrest instanter on the postal agent before we got to others, he refused, all because the police were told that the said cocoa farm was bought and paid for at a public auction by the Volta Regional Commissioner. Hon. F. Y. Asare through his brother, Jonathan Asare.

Subs. 8. On the contrary, all my labourers that were working on my said cocoa farm were accordingly arrested and charged for stealing cocoa from F. Y. Asare's cocoa farm bought and paid for. Evidently, all the cocoa that were collected by the men of Hon. F. Y. Asare will value approximately G300 (three hundred Ghana pounds) whilst the whereabouts of some of the cocoa was not known up to date.

Subs. 9. I have the honour to contend that both sale and the purchase of my said cocoa farm at a public auction by Jonathan Klu, Jonathan Asare for Hon. F. Y. Asare and the alleged licensed auctioneer, John Agbevey was illegal.

Subs. 10. For maintenance of peace, justice and equity and as I would not do anything contrary to the good name and reputation of our dynamic Convention People's Party, may I have the honour to pray that you warn Hon. F. Y. Asare and for him to warn his people or men to refrain from entering my said cocoa farm alleged to have been sold and bought at a public auction.

Subs. 11. Pending investigation of the matter, I earnestly pray that all the cocoa so collected by the people of Hon. F. Y. Asare be kept under the custody of the police. They have collected the cocoa from ten villagers of ours. [p.762]

Subs. 12. For the good administration of the Volta Region, I should pray that the Regional Commissioner of the Volta Region the Hon. F. Y. Asare be arrested by the police for questioning."

By paragraph 4 of the statement of claim it is pleaded that the said words quoted above are:

"That the plaintiff has been guilty of fraudulent and dishonourable conduct, that is to say he was using his office to unjustly enrich himself, obstructing or causing obstruction of Ghana policemen in the performance of their duty and/or perverting the administration of justice, that he was unfit to associate with respectable persons or to continue in the representation of his constituency in Parliament or in the occupation of his office as a Regional Commissioner." And it is pleaded also that the words published of the plaintiff were false and malicious and such that were meant to injure him in his work and reputation, and calculated to bring him into public scandal and hatred and contempt.

In his statement of defence, the defendant did not deny having written and published the said letter, but he denied that the words complained of were capable of bearing the meaning ascribed to them in paragraph 4 of the statement of claim.

"The defendant says that the said part of the publication was in fact justified although part thereof was the defendant's own opinion on a matter of public interest and amount to fair comment, the opinion being the last sentence of paragraph five in the said letter. The rest are statements of fact."

In paragraph 5 of the statement of defence, the defendant pleaded that the letter was fair comment and written without malice for the benefit of the public. And in paragraph 6, the defendant pleaded that the letter was written without malice on a subject-matter in which he had interest, in other words, on an occasion of qualified privilege. In his reply, the plaintiff pleaded that in publishing the said letter of him, the defendant was actuated by malice. After filing his defence, the defendant could not thereafter be traced, and therefore service of all the other processes and of the hearing notice were effected by means of substituted service. In spite of the substituted service which were duly effected the defendant was absent at the trial, nor was he represented, and hearing of the case therefore proceeded without him.

As to the issues of fact, the plaintiff's case was a denial of all the allegations made against him in the letter which was tendered and marked exhibit A, and I have no hesitation in accepting his evidence in its entirety. The evidence of Albert Kwame Danso (the person referred to in paragraph 5 of exhibit A) was to the effect that the plaintiff has not at any time persuaded or instigated him in the performance of his duties as a local court magistrate. He stated that the case referred to between the defendant on the one part and Jonathan Klu and Jonathan Asare on the other part was in fact heard and disposed of in the month of August, 1960, (sometime before exhibit A was written), and that he did not see the plaintiff at all either before or during the hearing of that matter in which the defendant's claim was dismissed. He impressed me as a witness of truth and I accept his evidence.

[p.763]

There is also the evidence of the police officer, P.W.3 which was to the effect that he conducted investigations into the allegations contained in a copy of exhibit A which was sent by the defendant to the Assistant Commissioner of Police at Ho, and that in consequence thereof, the defendant was charged with the offence of deceit of a public officer, and convicted and sentenced to a fine of G60 or four months imprisonment by the district magistrate sitting at Hohoe.

There is no doubt whatsoever that the defendant wrote and published of the plaintiff the letter tendered in evidence and marked exhibit A. It has also been established that he wrote and published the said letter of the plaintiff to the President of the Republic of Ghana and at least also to the Assistant Commissioner of Police at Ho. It has also been established that the plaintiff was a member of the Ghana Parliament and a Cabinet Minister, and he was also the Regional Commissioner of the Volta Region. Apart from still being a member of Parliament, the plaintiff now holds the distinguished position of a Ghana envoy to foreign countries.

The defence filed by the defendant sets up three main defences; one is that of justification, the other is that of fair comment on a matter of public interest, and the other is one in which the defendant had an interest, in other words, one of qualified privilege.

I will deal first with the defence of justification. That defence seems to be contained in paragraph 3 of the statement of defence as follows: "The defendant says the said part of the publication was in fact justified although part thereof was defendant's own opinion on a matter of public interest and fair comment". I am unable to see in this that part of the publication referred to which defendant seeks to justify. In Wernher, Beit Co. v. Markham1 it was held that under a plea of justification, the defendant must justify the precise imputation complained of. And in Bardi and Anor. v. Maurice,2 it was held that in order to succeed on the plea of justification, the defendant had the onus to justify the imputation complained of by the respondent.

In this case the defendant failed to appear to establish as true any of the allegations contained in the said publication. On the contrary, having regard to the last sentence of paragraph 3, sub-paragraph 5 of the statement of claim it has been established that what the defendant there alleged of the plaintiff is utterly untrue. I consider therefore that that defence fails completely.

I will deal now with the defence of fair comment. Having put up that defence, it is clear that the defendant has to prove the following: (a) that each and every statement of fact in the words complained of are true; and (b) that the comment on the facts so proved was bona fide and fair comment on a matter of public interest.

As I have already indicated, the defendant failed to appear to establish as true any of the statements of fact contained in the publication, and also that any comment thereon was fair comment on a matter of public [p.764] interest. In paragraph 3 of the statement of defence, the defendant purported to plead that the last sentence of sub-paragraph 5 of paragraph 3 of the statement of claim was a matter of opinion, but that is quite clearly a statement of fact, and one which has been proved by evidence to be wholly untrue. In my view, the only parts of the letter published which can be construed as a matter of comment or opinion are paragraphs 10, 11 and 12 and the words there appear to be the defendant's opinion that the plaintiff should be punished for certain wrongs done by him and for his improper conduct (as contained in other statements of the said letter) which statements of fact the defendant failed to prove to be true. This defence also fails.

Having regard to the last defence raised, I hold that the violence of the language used in exhibit A by the defendant, the reference to the plaintiff as an instigator of fraud and interferer with the due administration of justice, the recklessness with which all the false allegations were made, and the general tenor of the whole letter are capable of showing that the publication had no honesty of purpose in the discharge of a duty to the public or in showing a genuine personal interest, and that the defendant was actuated by malice. Not only do I find that these provide evidence of malice, but I do also find as a fact that their publication was malicious, and that therefore that defence fails.

In all the circumstances, I hold that the words contained in exhibit A and complained of are capable of the meaning alleged in the innuendo, and also that those words in their natural and ordinary sense are reasonably capable of bearing a defamatory meaning.

In assessing damages I have taken into consideration the position of plaintiff, at the time the libel was published, as a member of Parliament, and a Cabinet Minister, and the Regional Commissioner for the Volta Region, and the possible effect of this publication on his position and reputation. I have taken also into consideration the seriousness of the libel, and of the fact that in uttering it, the conduct of the defendant was one which was full of spite and ill-will and malice, and calculated to bring the plaintiff into contempt, and disrepute and disgrace. Accordingly I give judgment for the plaintiff and I do award him damages in the sum of G2,000 plus 200 guineas costs inclusive of 150 guineas counsel's brief fee.

Decision


Plaintiff / Appellant

G. K. Andoh

Defendant / Respondent

No appearance by or for the defendant

Referals

(1) Wernher, Beit, & Co v. Markham (1901) 18 T.L.R. 143

(2) Bardi & Anor v. Maurice (1954) 14 W.A.C.A 414

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