MICHAEL TETTEH ANGUAH vs. CENTRE FOR PLANT MEDICINE RESEARCH, GRAPHIC COMMUNICATIONS GROUP LIMITED & THE EDITOR, GRAPHIC COMMUNICATIONS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
    ACCRA - A.D 2016
MICHAEL TETTEH ANGUAH - (Plaintiff)
CENTRE FOR PLANT MEDICINE RESEARCH, GRAPHIC COMMUNICATIONS GROUP LIMITED AND THE EDITOR, GRAPHIC COMMUNICATIONS - (Defendants)

DATE:  7TH NOVEMBER, 2016
SUIT NO:  AC 804/2015
JUDGES:  KWEKU T. ACKAAH-BOAFO JUSTICE OF THE HIGH COURT
LAWYERS:  MR. ALEXANDER ADJEI FOR THE PLAINTIFF WITH CLEMENT SAMBO
MR. JOSEPH SAM FOR 1ST DEFENDANT
MR. STEPHEN SAR WITH ALBERT ZIEM-KUNGMAA FOR THE 2ND & 3RD DEFENDANTS
JUDGMENT

[A] Introduction:

[1] It is indeed true that the balance between free speech and protection of reputation is an uneasy one. When the Daily Graphic accepted to publish a disclaimer submitted by the Plant and Medicine Research, the 1st Defendant herein in or about January 2015, little did it know that it was setting in motion a chain of events which would lead to a lawyer’s letter for retraction, an apology and a demand for compensation and ultimately a defamation lawsuit for a claim in damages. This is an action for defamation by a former employee of the 1st Defendant Research Centre at Akropong against the Defendants herein for damages and injunction among others.

 

[B] The Action

[2] By a writ of summons filed on the 29th day of May, 2015 the Plaintiff claims against the Defendants the following reliefs:

I) A declaration that the publication by the Defendants in the Daily Graphic of Monday 19th January 2015 is defamatory of the Plaintiff.

II) General Damages for libel contained in the publication of the Daily Graphic of Monday 19th January 2015.

III) An order of perpetual injunction to restrain the Defendants whether by themselves, agents, privies or any of them or otherwise howsoever described from publishing and/or causing to be published similar statements defamatory of the Plaintiff.

IV) An order directed at the Defendants to retract the defamatory Disclaimer complained of and to render an apology through the same medium with similar prominence to the Plaintiff.

V) An order directed at the Defendants to pay to the Plaintiffs Costs including legal fees and the cost of this action.

VI) Any further reliefs as this Honourable Court deems fit.

 

[3] An appearance was entered and later statement of defence filed jointly by the 2nd and 3rd Defendants and separately by the 1st defendant after service of the writ and statement of claim. The Plaintiff did not file a reply.

 

 

[C] Brief Facts

[4] The facts of the case are that the Plaintiff who is a 59 years old married man with four children, an elder of the Presbyterian Church of Ghana at Akropong in the Eastern Region and presently a farmer says he was defamed by the Defendants after the 1st Defendant caused to be published a disclaimer in the 2nd Defendant’s newspaper on January 19, 2015. The Plaintiff worked with the 1st Defendant Research Centre from November 16, 1987 until his employment was terminated on January 9, 2012. Before launching this litigation, the Plaintiff's solicitor did the Defendants the courtesy of sending a letter before action dated January 20, 2015. The Plaintiff’s Counsel requested that Defendants retract the disclaimer; offer an apology and demanded compensation from the 2nd Defendant, but all the Defendants failed to comply with the letter. After waiting for months without the retraction and/or apology and compensation, the present writ of summons was issued by the Plaintiff to seek the reliefs endorsed on the writ of summons.

 

[5] The Plaintiff claims that the disclaimer published defamed him because it exposed him to public ridicule, humiliation and lowered him in public estimation that he is a thief and a fraudster.

The Defendants deny the Plaintiff’s claim. The 1st Defendant asserts that the disclaimer published, without more, represented true facts of the relationship between the individuals named in the disclaimer as ex-employees and itself. The 1st Defendant further posited that “it’s unfortunate if the Plaintiff felt uncomfortable with the said disclaimer”. The 2nd and 3rd Defendants also assert that what they published about and concerning the Plaintiff was justified because it was true in fact and in substance and they carried same in discharge of their duties as communicators.

 

[D] The Issues

[6] At the close of the pleadings the Issues which were set down for determination as contained in the Application for Directions filed by the Plaintiff on the 3rd of December, 2015 and adopted by the Court were as follows:-

a) Whether or not the words contained in the disclaimer published at page 29 of the 19th January, 2015 edition of the “Daily Graphic” newspaper in their natural and ordinary meaning meant or were understood to mean that the Plaintiff is a fraudster.

b) Whether or not the words contained in the disclaimer at page 29 of the 19th of January, 2015 edition of the “Daily Graphic” newspaper in their natural and ordinary meaning meant or were understood to mean that the Plaintiff was dismissed or had his appointment terminated for fraud.

c) Whether or not the words contained in the disclaimer published at page 29 of the 19th January, 2015 edition of the “Daily Graphic” newspaper in their natural and ordinary meaning meant or were understood to mean that the Plaintiff is a thief.

d) Whether or not the words contained in the disclaimer published at page 29 of the 19th January, 2015 edition of the “Daily Graphic” newspaper in their natural and ordinary meaning meant or were understood to mean that the Plaintiff was dismissed or had his appointment terminated for theft.

e) Whether or not the Plaintiff’s appointment was terminated for fraud.

f) Whether or not the Plaintiff’s appointment was terminated as a result of theft.

g) Whether or not the words contained in the disclaimer published at page 29 of the 19th January, 2015 edition of the “Daily Graphic” newspaper are capable of disparaging the Plaintiff in the eyes of the general public.

h) Whether or not the Plaintiff is entitled to his claim.

 

[7] The Plaintiff gave evidence for himself and called no witness to close his case. The 1st Defendant gave evidence per its representative and called no witness and closed its case. The 2nd and 3rd Defendants also gave evidence per their representative and also called no other witnesses and announced the closure of their case thereafter.

 

[E] Position of the Parties

The Plaintiff’s Case:

[8] It is the case of the Plaintiff that as per the letter of his termination, which he tendered as Exhibit “A”, his appointment was terminated for “misconduct” in contravention of Section 54(n) of the 1st Defendant’s condition of service for senior staff. This misconduct was in respect of “conflict of interest, breach of good faith and dishonesty.” The Plaintiff testified that Exhibit “A” explained that whilst working as an employee of the 1st Defendant’s research centre he was also a Director of Class Herbal Centre, a company that had a contract and did business with the research centre. According to the Plaintiff, the letter of termination never stated theft and fraud as reasons for his termination as stated in the published disclaimer. According to the Plaintiff after the publication on January 19, 2015 in the Daily Graphic of Exhibit “B”, being the disclaimer, several friends and relations drew his attention to it.

 

 

 

[9] The Plaintiff testified that he understood the words in the disclaimer in their natural and ordinary meaning to be that he is a fraudster and a thief whose appointment was terminated on grounds of fraud and theft. According to the Plaintiff as a high ranking member and an elder of the Presbyterian Church at Akropong where he resides and a respected personality of no mean standing in the community, the disclaimer disparaged him in the eyes of the general public, injured his reputation and brought him into public scandal, odium and contempt among his peers, officers, family members and the society at large and has thus suffered irreparable and incalculable damage for his reputation and honour. In cross-examination the Plaintiff conceded that before the publication of Exhibit “B”, his pastor knew the reasons for his termination because he presented to him a “copy of the termination letter for his view” and also the fact of his termination was known to his wife, friends, family and other union members because he presented to them a copy of the termination letter. The Plaintiff said subsequent to his termination but before the publication he gained elevation as lay representative of the Presbyterian Church at his local district.

 

[10] Of particular importance to the Plaintiff, he says the publication of the disclaimer coming three years after the termination of his appointment was a calculated ploy by the 1st Defendant to cause him maximum hatred, disparage, ridicule and injure his hard earned reputation in the minds of right thinking members of society and thereby negatively affect his standing in society. The Plaintiff also testified that his lawyer wrote a letter dated January 20, 2015 demanding a retraction and an apology from the Defendants. A copy of the letter was admitted as Exhibit “C” The Plaintiff further submitted Exhibits “D”, “D1” and “D2” to confirm that all the Defendants received the said letter from his lawyer but they all refused and/or neglected to retract and apologize. The Plaintiff conceded in cross-examination that three persons appeared in the published disclaimer. He also conceded that the publication stated that the persons were either dismissed or had their appointment terminated for various offences including fraud and theft. I shall re-visit the publication later.

 

The Defendants’ Case:

[11] The 1st Defendant Research Centre gave evidence through its representative Charles Kwaku Adomaku, an Administrative Secretary who confirmed that he knew the Plaintiff and the two individuals whose photographs were published in the disclaimer. He told the court that the Plaintiff until his employment was terminated worked as a technician with the 1st Defendant research centre. He also confirmed that the Plaintiff’s employment was terminated after an internal disciplinary enquiry found him culpable of conflict of interest and breach of trust and confirmed that the Plaintiff’s employment was terminated for conflict of interest but not for fraud or theft.

 

[12] Mr. Adomako further testified that the 1st Defendant caused the disclaimer to be published by the 2nd Defendant following the investigations conducted by officials of Bureau of National Investigations (BNI) into certain publications and petitions to the presidency and other government ministries indicated that certain aggrieved ex-employees were behind the anonymous messages and letters to attack the centre and its management officials. He then said following the publication the petitions ceased.

 

[13] In this case, the 1st Defendant contends that two other employees, Messrs Emmanuel Quaw Nkrumah and Seth Russel Agbofa together with the Plaintiff appointments were terminated. The witness informed the Court that Mr. Nkrumah was terminated for fraud whilst Mr. Agbofa was terminated for theft. Exhibits “3” and “4”, being their termination letters were tendered on behalf of the 1st Defendant. I note that the 1st Defendant also tendered the disclaimer as Exhibit “2” and contends that the effort by the Plaintiff to associate defamatory meanings to the disclaimer is mischievous because the disclaimer was a true statement of fact regarding the three persons mentioned.

 

[14] The 1st Defendant’s witness confirmed that the Plaintiff was not terminated for fraud or theft under cross-examination and also conceded that the publication (the disclaimer) did not ascribe particular offences to each individual whose photograph was published. He however, denied that the offences listed go for all the three persons mentioned in the disclaimer. According to Mr. Adomako the key words in the disclaimer are “either” and “or.”

 

[15] Mr. Adomako also conceded that even though some of the petitions had names attached to them none was from the Plaintiff. He however said the publication of the disclaimer was meant to protect the image of the Research Centre and to stop the publications of unanimous petitions and letters sent to government ministries and the Presidency. He however, vehemently denied that the disclaimer was meant to ridicule and/or disparage the Plaintiff. He also denied that the publication injured his reputation.

 

[16] The 2nd and 3rd Defendants contest the Plaintiff’s claim through their witness, Mr. Dodzi Anador on the grounds that the 1st Defendant gave reasons for the dismissal or termination of the appointments of the three persons whose photos were published as conflict of interest, fraud, theft and gross misconduct. The witness testified that when the 1st Defendant brought the disclaimer for publication, the 2nd and 3rd Defendants believed the content to be true as they had no cause to doubt the credibility of same. Mr. Anador further submitted that the 2nd and 3rd Defendants were justified in publishing the disclaimer because the Plaintiff himself stated both in his pleadings and evidence that his appointment was terminated for reasons including conflict of interest and breach of good faith and dishonesty, the same reasons contained in the publication he is complaining about. Further, it is contended that the disclaimer was not retracted upon the request of the Plaintiff because he failed to provide any factual inaccuracy to the publication.

 

[17] Further, the 2nd and 3rd Defendants denied that the set of words complained about by the Plaintiff bore or are understood to bear or are capable of bearing any of the meanings put to it by the Plaintiff. According to the witness, as communicators they serve the interest of the general public through their position as newspaper publishers and also to safeguard same. According to the 2nd and 3rd Defendants therefore they were justified in publishing the disclaimer which was a fair comment based on the facts that the publication was true.

 

[F] Discussion:

 

Legal Analysis & Opinion of the Court:

[18] In his article “‘Libel Tourism’ and Conflict of Laws” (2010) 59 I.C.L.Q. 25 at 26, Professor Trevor C. Hartley wrote:

We all believe in free speech. We also believe that people should be protected from defamation. There is a potential conflict between these two values and the law has to attempt some kind of balance.

 

[19] This case illustrates the elusiveness of any such balance. Whilst the 1st Defendant takes the position that the publication of the disclaimer protects the integrity of the research centre, the Plaintiff maintains the publication has lowered his reputation in the eyes of the people in his community.

 

[G] Findings of Facts

[20] After having heard the testimony of the witnesses at trial and the exhibits filed, and, after having read the written submissions of the parties, I make the following findings of fact:

I) It is not in dispute that the Plaintiff worked with the 1st Defendant Research Centre first as a labourer in 1987 and eventually became a senior staff member and was terminated in January 2012.

II) The Court also finds from Exhibit “A” that the Plaintiff was not terminated for fraud or theft but for Misconduct and Conflict of Interest.

III) Again the court finds as a fact from Exhibits “3” and “4” that two individuals Mr. Qwaw Nkrumah and Agbofa Russel appointments were terminated together with the Plaintiff. They were terminated for fraud and theft respectively.

IV) The 1st Defendant gave each individual a termination letter to confirm the termination and the reason(s) for the termination.

V) It is also not in dispute that even though the terminations were in 2012 the publication of the disclaimer was done three years thereafter in January 2015.

VI) The Court finds that the 1st Defendant caused the publication of the disclaimer and the photographs of the Plaintiff and two other persons were published by the 2nd Defendant the publishers of Daily Graphic which is edited by the 3rd Defendant. The disclaimer contained the alleged offending words.

VII) Finally, the court further finds as a fact that the Plaintiff wrote to the Defendants to retract the publication and apologize but the publication was not retracted and no apology was offered.

 

[21] Admittedly, several issues have been raised by the parties for determination by the Court but with respect, most of them can hardly be described as relevant. In the opinion of this court, the crucial ones which are central to the determination of the dispute between the parties are Issues a, c and g. The other issues would be determined after the germane ones are resolved if necessary although Counsel have submitted on all of them. Indeed it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them.

 

[22] The Court of Appeal (Coram: Sowah CJ, Abban and Osei-Hwere JJA) has stated the law in DOMFE v ADU (1984-86) 1 GLR 653 that the primary facts which a trial judge might find as having been proved to his satisfaction were those necessary to establish the claim of a party or in some cases the defence and which had been alleged on one side and controverted on the other. The rule establishes further that the trial judge was not required to make findings of fact in respect of irrelevant matters on which the parties had led evidence when such findings would not assist in the determination of the issues involved in the case.

 

 

[23] Applying the above stated principle to the instant case, I proceed to combine the above stated Issues A, C and G. However, I shall reframe the main issues to read: Whether or not the published words in the disclaimer defamed the Plaintiff herein as a fraudster and a thief.

 

[24] Section 11 of the Evidence Act, NRCD 323 of 1975 provides:

(i) For the purposes of this Decree the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

 

Further, Section 14 of NRCD 323 stipulates that in a trial, the burden of proof may shift but unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is asserting.

 

[25] The principle of law has received judicial blessing as the Supreme Court pronounced on it in the case of Re: Ashalley Botwe Lands, Adjetey Agbosu & Others V. Kotey & Others [2003-2004] SCGLR 420. The Court held per Wood JSC (as she then was) at page 444 that:

 

“It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial, depending on the issues asserted and or denied.”

 

[26] Further, Brobbey JSC (as he then was) in the same case reiterated at page 465 that a Defendant generally does not carry a burden of proof, because the Plaintiff who took the Defendant to Court has to prove what he claims is entitled to from the Defendant. However, if the court has to make a factual determination of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. Consequently, in line with the tenets of Section 14 of NRCD 323 a Defendant who wishes to win his case is required to adduce facts and provide evidence on issues he desires to be held in his favour.

 

[27] The Supreme Court has also explained in the case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCGLR 845 at 867 that

 

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

 

See also Bank of West Africa Ltd vs. Ackun [1963] 1 GLR 176.

 

[28] This court is of the opinion that proof of the fact that the published disclaimer is defamatory of the Plaintiff is a matter of fact based on the natural and ordinary meaning of the words and the burden is on the Plaintiff to establish same with cogent evidence. Indeed it is an issue of a positive proof as stated in the cases of Majolagbe vs. Larbi [1959] GLR 190; Zabrama vs. Segbedzi [1991] 2 GLR 221.

 

[29] The Plaintiff brought this action against the Defendants claiming damages for defamation alleging that the disclaimer caused to be published by his former employers on January 19, 2015 imputed to him theft and fraud. From the evidence obtained at trial it is quite clear that the integrity and the business interest of the 1st Defendant was the reason behind the publication and that the disclaimer was to prevent the general public from dealing with the named persons because of petitions and anonymous letters sent to some government ministries and the presidency.

 

[30] In my opinion, it is important and desirable to set out in extenso the entire disclaimer published to give the context of the words complained of in this suit. It is as follows:

 

“The Centre for Plant Medicine Research, Mampong-Akuapem hereby announces for the Information of the General Public that the following whose pictures and names appear above are no longer employees of the Centre.

They were either dismissed or had their appointment terminated some time ago on various offences including, Fraud, Theft, Conflict of Interest, and Gross Misconduct.

The Centre wishes to state that People should not deal with the above mentioned persons on behalf of the Institution and Correspondences emanating from them be treated with Contempt that it Deserves”

 

[31] The parties’ differences on the meaning of the disclaimer were straight-forward. Both Mr. Sam and Mr. Sah for the Defendants submitted that the words complained of in the disclaimer were not capable of a defamatory meaning to the Plaintiff because of the correlative conjunctive words “either” and “or”; Mr. Adjei on the other hand has strongly submitted that they were and the Plaintiff is entitled to judgment.

 

[32] I think the starting point for the resolution of this matter is the determination of the natural meanings of the words used and to ask the question whether the words exposed the Plaintiff to public hatred, ridicule or contempt or in any way injured him in his trade because we are talking about the tort of defamation. Clearly, the law of defamation in our jurisdiction and at common law is designed to protect reputation from injurious falsehoods.

 

[33] Defamation according to Milmo and Rogers. is the “publication of an untrue statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him.”

                                                         

[34] According to Raymond E. Brown in The Law of Defamation in Canada, (2nd Edn.) Carswell, 1994 at p. 15, the learned author indicates that a publication is considered to be defamatory if it has the tendency to lower that reputation in the estimation of reasonable persons in the community.

 

[35] A defamatory statement according to Lord Atkin is a “statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.”

 

[H] Positions of the Parties

[36] Plaintiff after tendering in evidence Exhibit “B” which is Exhibit “2” from the Defendants, the published disclaimer, Mr. Adjei submitted that the meaning of the words “either” and “or” are crucial in resolving the issues raised. Relying on the case of Cassidy v. Daily Mirror Newspapers Ltd. (1929) 2 KB 331 and the writings of the learned Author S.Y. Bimpong Buta it was submitted on behalf of the Plaintiff that “the first basic rule as stated by Cross is a re-formulation of the literal or plain meaning rule of construction. Salient features of this basic rule (as stated) are: the need to resort to the ordinary, literal or dictionary meaning or where necessary the technical meaning, in relation to the context in which the words or phrase have been used”.

 

[37] The Plaintiff further submit relying on “Longman Dictionary of Contemporary English”, 3rd Edition and the International Edition of “Macmillan English Dictionary” that the ordinary meaning of the word “either” in the disclaimer does not refer the “or” to an alternative between the listed offences but rather the either refers to the alternatives offered in the phrase “dismissed or had their appointment terminated sometime ago” and does not refer to the “on various offences including fraud, theft, conflict of interest and gross misconduct”. It was also submitted that the word “or” used only gives an alternative between the word “dismissed” and the word “terminated” and not the offences listed.

 

[38] According to the Plaintiff, the import is that the named persons whose pictures appeared in the disclaimer were “dismissed some time ago on various offences including fraud, theft, conflict of interest and gross misconduct” or “the named persons had their appointment terminated some time ago on various offences including fraud, theft, conflict of interest and gross misconduct”. To that extent, it was submitted that the disclaimer defamed the Plaintiff as a thief and a fraudster and therefore entitled to his claim.

 

[39] It is the case of the Defendants as argued by Mr. Sah for the 2nd and 3rd Defendants in rebuttal to the Plaintiff’s submission that in determining whether a publication or statement is defamatory or not, the Court ought to look at the meaning the words complained about convey to the ordinary man. To the Defendants, the meaning of words for the purpose of defamation is “not a question of legal construction but the meaning to be conveyed to the ordinary person”. Counsel relied on the case of Morgan v. Odhams Press Ltd (1970) 2 All ER 554 @ 549 for the submission. I note that Mr. Sam has also argued on similar grounds for the 1st Defendant.

 

[40] Gatley on Libel and Slander, 8th ed. (1981), has the following helpful statement at page 281 on Plaintiff’s onus in a defamation suit:

 

“Words must be published of the plaintiff. “To succeed in an action of defamation the plaintiff must not only prove that the Defendant published the words and they are defamatory: he must also identify himself as the person defamed. No writing whatsoever is to be esteemed a libel unless it reflects upon some particular person. It is an essential element of the cause of action for defamation that the words complained of should be published of the plaintiff."

 

[41] Undoubtedly, an action for defamation is a personal action based on injury to one's reputation or that the words complained of have a tendency to lower one in the estimation of others.

The words to be actionable must be understood to be published of and concerning the Plaintiff. I however agree that, it is possible for individuals to be defamed by a reference to a group or to a class of individuals as in this case. This issue was addressed extensively in the case of Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.). Lord Russell of Killowen stated at p. 123:

The crucial question in these cases in which an individual Plaintiff sues in respect of defamation of a class or group of individuals is whether on their true construction the defamatory words were published of and concerning the individual Plaintiff. Unless this can be answered in the affirmative [the individual plaintiff] has no cause of action.

 

Viscount Simon, L.C. said at pp. 119-21:

Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action. A good example is Browne v. D.C. Thomson & Co. [1912] S.C. 359, where a newspaper article stated in Queenstown "instructions were issued by the Roman Catholic religious authorities that all Protestant shop assistants were to be discharged", and where seven pursuers who averred that they were the sole persons who exercised religious authority in the name and on behalf of the Roman Catholic Church in Queenstown were held entitled to sue for libel as being individually defamed. . . .

 

There are two questions involved in the attempt to identify the Appellant as the person defamed. The first question is a question of law -- can the article, having regard to its language, be regarded as capable of referring to the Appellant? The second question is a question of fact – Does the article, in fact, lead reasonable people, who know the Appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise . . . .

 

[43] In the opinion of the court, although every case ought to be looked at in the context of the words used to fit the nuances of a particular fact situation, it is clear based on the evidence and looking at the ordinary and natural meaning of the words complained (i.e. the disclaimer) in the context used, I have concluded that no reasonable right thinking person would come to the conclusion that the published disclaimer is capable of any defamatory meaning to the Plaintiff. To put it another way, the published disclaimer does not amount to disparagement of the Plaintiff’s reputation in the eyes of right thinking people within the context of the disclaimer. In my respectful view, whether a statement is capable of being defamatory is a question of law and whether a statement is defamatory is a question of fact. The question of law is not just whether the words are capable of any libellous meaning, but also that they bear the meaning ascribed.

 

[44] I disagree with the Plaintiff on the meaning ascribed to the disclaimer based on the evidence and the context in which it was published. The test for defamation is not whether the Plaintiff feels personally insulted or his feelings are hurt. That is not even an issue. The test is whether the statement in question tends to lower the reputation of the Plaintiff in the estimation of ordinary, reasonable, or “right-thinking” people in the community generally, or exposes him to hatred, contempt or ridicule. To be actionable the words must be reasonably understood by others in a defamatory sense.

 

[45] To reiterate, an essential element of defamation is that the words complained of were published “of the plaintiff”; that is, that they referred to, or were reasonably understood to refer to the Plaintiff. Where as in this case none of the published photograph is assigned with any of the grounds for the termination or dismissal, the objective test is whether the words complained of would lead persons reasonably acquainted with the Plaintiff to conclude that he was the person referred to with the words “fraud” or “thief”. Taken on their own, the words complained of do not in their natural and ordinary meaning identify the three persons whose photographs were published with the disclaimer (by name or photograph). Whilst I do not doubt that Mr. Anguah genuinely and sincerely believes he has been defamed, he is wrong at law, in my respectful opinion the reference to the words “fraud” and “thief” taken on their own based on the record within the context of this case do not refer to him, the Plaintiff. On this basis, the Plaintiff has no cause of action demonstrable from the pleadings and the evidence against the Defendants.

 

[46] One thorny issue that engaged the attention of Defendants’ counsel and the Plaintiff at the trial was whether or not his pastor, family members and the union knew of the reasons for his termination. This is clearly borne out from the answers given by the Plaintiff under cross-examination as captured below on May 4, 2016:

“Q: How long have you been an elder of your church?

A: I cannot remember the exact date but the 80s.

Q: And you still hold it?

A. Yes, but I have now moved on as a lay representative of the Mampong District of the Presbyterian Church.

Q. When did you become a lay representative?

A: In the year 2013.

Q: This is an upward movement in your status in the Church?

A: Yes, my Lord.

Q. When your appointment was terminated, you did inform your wife and colleagues. Is that correct?

A. I informed my wife and some family members.

Q. You as well brought to the local union of which you belonged at the time at work.

A: Yes, I did.

Q. Now beyond the local union, you also informed the mother union. Is that not so?

A. Yes, I did.

Q. You gave them the reasons for the termination by the 1st Defendant.

A. I presented to them a copy of the termination letter.

Q: The termination letter contained the reasons.

A: Yes, it did.

Q. Also, as a Presbyter at the time you brought to the attention of the church.

A. I only told the pastor who is the Head Minister.

Q. Did your pastor enquire into the reasons for the termination.

A. I don’t know.

Q. Did you tell him the reasons yourself?

A. I presented the same copy of the termination letter for his view.

Q. Did your pastor express any view after seeing the letter?

A. He was just sorry for me.

 

Clearly, the above leaves the Court in no doubt that close family members, union colleagues and the Plaintiff’s pastor knew the reasons for his termination as conflict of interest and gross misconduct because he personally informed them.

 

[47] It is significant and the court wishes to place on record that although the Plaintiff himself published the reasons for his termination, and pleaded and testified that by reason of the publication “my reputation and esteem have been tarnished seriously and gravely injured and I and my family have suffered and continue to suffer considerable distress, pain and embarrassment”, he did not call any family member to express any personal opinion of the publication and the impact on them. The Court heard no evidence as to how members in his community received the publication and how same injured and lowered the Plaintiff’s reputation.

 

[48] From the evidence, the Plaintiff was unable to demonstrate any tangible harms resulting from the impugned publication. There was no evidence from persons in his community and/or Church that publishing the disclaimer in the words he complains about was capable of making his fellow Church members, farmers, family members and people in the community or indeed anyone else think less of him because he is perceived as a thief or a fraudster. There was no evidence that the Plaintiff lost any position or standing in his community or church over the publication. For instance there is no evidence put before the Court that after the publication he lost his position as a lay representative of the Mampong District of the Presbyterian Church.

 

[49] The Court has no evidence that the Plaintiff’s family members and Pastor and people in the Community now believe that the Plaintiff’s appointment was terminated on grounds of fraud and/or theft contrary to the reasons for his termination and which he personally told them. Despite the absence of any evidence that in the estimation of the ordinary, reasonable, or “right-thinking” people in the community of Akwapim Mampong, where the Plaintiff lives he is a fraudster and/or a thief because of the publication of the disclaimer, the Plaintiff is nevertheless inviting me to accept that he was defamed by the publication. Regrettably, I shall refuse the invitation. The standard is high in cases of defamation and a Plaintiff is obligated to provide real evidence of harm to succeed.

Conclusion:

[50] In the light of the foregoing reasons and applying the principles as enunciated in the authorities, to the circumstances of the present case, I resolve the reframed issue against the Plaintiff and conclude that the published words in the disclaimer DID NOT defame the Plaintiff herein as a fraudster and a thief based on the ordinary and natural meanings of the words used and within the context in which it was published.

 

[51] In conclusion, therefore, the court will DISMISS the Plaintiff’s claim and for that matter all the reliefs endorsed on the writ of summons.

 

[52] But, I cannot conclude this judgment without making an observation. I am troubled by the cavalier fashion in which the disclaimer was conceived, crafted and published. Though factual in substance, in the opinion of the court, the wording of the impugned disclaimer was ambiguously worded. The Defendants placed the Plaintiff in a position where he had the onus of distinguishing to loved ones etc. his termination from those terminated for fraud and theft. It is also clear from the wording of the disclaimer and from 1st Defendant’s witness that the decision to publish the disclaimer was strategic, with the goal of undermining the reputation and integrity of persons who could potentially be authoring anonymous letters that in turn undermined the integrity of the 1st Defendant.

 

[53] As I have noted, even though based on the law, the Plaintiff has failed to meet the high standard of proving the defamation, the published disclaimer nevertheless placed the Plaintiff in the unenviable position of disentangling himself from a “rogues gallery” of a thief and a fraudster. There is no evidence that the Plaintiff in particular was misrepresenting himself to the public vis-à-vis his relationship with the 1st Defendant, to necessitate the publication in the manner it was made. The conspiracy theories around the spate of poison pen letters targeting the 1st Defendant in some situations may be inadequate to rationalize a publication such as the subject-matter of this suit. The 2nd and 3rd Defendants are professional communicators, with rich experience and superlative editorial capabilities, globally recognized. Going forward, it might be prudent for them to wordsmith advertisements such as the impugned disclaimer more carefully. Undoubtedly, mass communications extend the footprint of potentially defamatory statements. A word to the wise…

 

[54] Even though Cost follows the event based on the facts and circumstances of the case and my opinion expressed supra, I make No order as to Costs.