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Bonsu v. Forson - A case
Constitutional law of Ghana and its history (FLAW306)
University of Ghana
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BONSU v. FORSON
[1964] GLR 45
Division: IN THE SUPREME COURT
Date: 27 JANUARY 1964
Before: SARKODEE-ADOO, OLLENNU AND BLAY JJ.S.
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 allege d 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. 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] 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. 139, affirmed.
CASES REFERRED TO
(1) Adam v. Ward [1917] A. 309; [1916-17] All E. Rep. 157; 86 L.J.Q. 849; 117 L. 34; 33 T.L. 277, H.
(2) Capital and Counties Bank Ltd. v. Henty (George) & Sons (1882) 7 App. Cas. 741; 52 L.J.Q. 232; 47 L. 662; 47 J. 214; 31 W. 157, H.
(3) Mulligan v. Cole (1875) L. 10 Q. 459; 44 L.J.Q. 153; 33 L. 12; 39 J. 805
(4) Beswick v. Smith (1907) 24 T.L. 169, C.
(5) Thorley v. Kerry (Lord) (1812) 4 Taunt 355; 3 Camp. 214n; 128 E. 367
(6) Christie v. Robertson (1899) 1 F; 36 S.L. 899; 7 S.L. 143
(7) Cheetham v. Bannerman (1881) Sar.F.L. 23
(8) Amoah v. Djabi (1926) D.’26-’29, 43
(9) Chuku v. Nkrumah (1958) 3 W.A.L. 471
NATURE OF PROCEEDINGS
APPEAL from a judgment of Djabanor J. (reported in [1962] 1 G.L. 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.
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] of [1964] GLR 45
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] 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 said 10 : “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. 1 at p. 6, C. 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] 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 alia 11 :
“... 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
Bonsu v. Forson - A case
Course: Constitutional law of Ghana and its history (FLAW306)
University: University of Ghana
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