Plaintiff's Arguments

The plaintiff argued that the broadcast was false, baseless and malicious, and that it portrayed him to the public as a criminal and a violent person. He said it ruined the reputation he had built as a responsible citizen and Member of Parliament, and that the defendant was several metres from the scene and could not have seen what happened. He tendered the translation and transcript of the radio conversation (Exhibits A and B) and the audio recording (Exhibit C).

His three witnesses supported him with differing accounts. PW1, David Ampem Darko, said he had been tasked to instruct the driver to move the bus, and that in a scuffle with the DCE he inadvertently pushed her down on a slippery floor. He denied that the plaintiff assaulted her. PW2, John Osei Yeboah, said he was talking with the plaintiff at a distance when he heard screams and saw the DCE on the ground. PW3, Kwabena Yeboah, said that he and the defendant were not close to the incident and that neither saw what happened. On the burden of proof, counsel submitted that because the defendant had accused the plaintiff of a crime, he had to prove it beyond reasonable doubt.

Defendant's Arguments

The defendant maintained that he was with the DCE at the Assembly premises and that his broadcast was what he actually saw. He said the plaintiff arrived with a group, that the DCE told the driver not to move the bus, and that this infuriated the plaintiff, who slapped her heavily on the cheek and sent her to the ground. He pleaded justification and fair comment, and argued that the plaintiff should have called witnesses to show actual injury to his reputation.

The DCE testified as DW1 and gave the same account. She said she was helped up by the plaintiff's driver and the Deputy District Coordinator, and she reported the matter to the Effiduase Police. She tendered a certified police extract (Exhibit 1) and an endorsed medical form (Exhibit 2).

Court's Findings

Elements of defamation: The Court noted that the common law recognises libel and slander, while customary law recognises only slander. Because both parties are Ghanaian indigenes from the same community, section 54 of the Courts Act, 1993 (Act 459) allowed it to apply their personal customary law. It listed the elements the plaintiff had to establish: that the words were capable of a defamatory meaning, were actually defamatory, referred to the plaintiff, and were published to at least one other person. Relying on authorities including Ackah v. Agricultural Development Bank, it held that accusing a person of slapping another imputes criminal conduct and is capable of a defamatory meaning. Slander under customary law is actionable without proof of actual damage, so the defendant's admission that he made the broadcast meant the plaintiff did not have to prove injury to reputation. The case therefore turned on the defences.

Burden of proof: The Court rejected the argument that the defendant had to prove assault beyond reasonable doubt. It said the plaintiff had brought the civil action and the defendant was not prosecuting him. Justification and fair comment operate as a shield, not a sword.

The assault: The Court found that the evidence of both sides confirmed the DCE was assaulted and fell. It treated the victim's testimony as especially weighty, since the incident happened in broad daylight before noon and she would have seen her attacker. DW1's account stood up under cross-examination, and her insistence that the plaintiff slapped her was not discredited. The medical report recorded tenderness in the leg and left neck, which the Court said was more consistent with a forceful blow than the casual push PW1 described. The DCE's near-contemporaneous police report also named the plaintiff.

The plaintiff's witnesses: The Court found PW1 inconsistent and evasive. He admitted pushing the DCE in his witness statement, then denied it under cross-examination, and he claimed the plaintiff was not around even though the plaintiff said he was present 30 to 50 metres away. Even if PW1 had been the one who pushed the DCE, the Court found that the plaintiff had tasked him and led the group, and so bore responsibility for the altercation. PW3 contradicted his own witness statement by insisting under cross-examination that he was present at the scene. PW2 told the Court that the DCE "fell down on her own," admitted he had not listened to the Nhyira FM interview, and later tried to change his evidence, which the Court called a palpable falsehood. The Court found it improbable that PW2 and PW3, as part of the plaintiff's team, would have taken no interest in the altercation.

Media context: The Court found that the assault story was already in the media before the defendant spoke. The plaintiff's own Exhibit A showed that the presenter narrated the story, and the plaintiff's press denial, before asking the defendant for his account. The defendant had been called by the station, not the other way round.

Justification: The defendant had to show that his words were wholly or substantially true. The Court held that the assault occurred, and that the defendant, who was at the Assembly forecourt, could speak as an eyewitness without standing on the exact spot. He was therefore entitled to plead justification, since a person cannot complain of injury to a reputation he does not possess if what was said about him is true or substantially true (Buachie v. Samman).

Fair comment: Applying Daily Dispatch v. Osei-Bonsu II and Mensah v. Osei-Bonsu II, the Court held that the assault of a serving DCE was a matter of public interest, that the comments were founded on facts already in existence, and that the defendant acted honestly. The plaintiff's allegations of malice were not borne out by the evidence. Quoting Gbadegbe JSC, the Court stressed the need to balance protection of reputation against the constitutional right to free expression.

Decision

The High Court dismissed the plaintiff's action and all the reliefs endorsed on the writ of summons. It held that the defences of justification and fair comment prevail over any defamatory meaning in the statement complained of. Costs of GH¢25,000 were awarded to the defendant against the plaintiff.

Counsel: Abdul Mannan Osumanu for Annis Moghtar Mohayideen Esq. for the plaintiff; J. B. Danquah Esq. for the defendant.

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