BANSON vs. NANA [1965]DLHC1784

Date	1965-01-29
Suit No.
Citation No.	[1965]DLHC1784

LASSEY J.

T. D. BRODIE-MENDS FOR THE APPELLANT.

DR. DE GRAFT-JOHNSON FOR THE RESPONDENT.

[1965]DLHC1784
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													<main id="main" class="content" style="min-height: 60rem" >BANSON<o:p></o:p>&nbsp;vs. <o:p></o:p>NANA <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1965] GLR 24<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29 JANUARY 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

T. D. BRODIE-MENDS FOR THE APPELLANT.<o:p></o:p>

DR. DE GRAFT-JOHNSON FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LASSEY J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.<o:p></o:p>[His
lordship stated the facts as summarised in the headnote and continued:] There
is no doubt on the evidence that the words found to have been spoken by the
defendant-appellant were so uttered in the heat of passion resulting from the
altercation between him and the plaintiff about the settlement of the debt he
alleged was due and owing by the plaintiff. It is clear to me from the nature
of the plaintiff’s claim that her action was intended to be and was founded
under customary law; this can be seen from the words alleged to have been
spoken and also from the size of the sum claimed by way of damages. The record
of the proceedings show that the action was first instituted in the former
Municipal Court B of Cape Coast in or about March 1960, and was finally tried
and conducted in the Local Court Division 2 held at Cape Coast. On 1 July 1960,
the Courts Act, 1960,1 came into force and the Local Courts Act, 1958,2 was
thereby repealed. At the time the action was instituted in the former Municipal
Court B in March of 1960, the law in force was that enacted in section 15 of
the Local Courts Act, 1958, now repealed. It reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Subject
to the provisions of this Act a Local Court shall administer— (a) the customary
law prevailing within the jurisdiction of the Local Court so far as it is not
repugnant to natural justice, equity and good conscience nor incompatible
either directly or by necessary implication with any Act for the time being in
force . . . “<o:p></o:p><o:p>&nbsp;</o:p>When the
local courts set up under the Local Courts Act, 1958, were abolished, following
upon the repeal of the Local Courts Act, their jurisdiction to administer
customary law was transferred to the present local courts set up after the
coming into force of the Courts Act, 1960. It therefore follows that unless the
rules of the common law and customary law were identical on this subject the
plaintiff’s action could not be founded on the English law where different
principles would apply. In fact, there has not been any contention that the
plaintiff’s action is not founded under customary law.<o:p></o:p><o:p>&nbsp;</o:p>The trial
local court after hearing the evidence of the parties and their witnesses
accepted the version of the plaintiff and her third witness who was present and
heard the publication of the words complained of. The trial Cape Coast Local
Court Division 2 found for the plaintiff, and awarded for her £G10 damages for
slander. The defendant appealed to the Circuit Court, Cape Coast, which court
also affirmed the decision of the trial local court and dismissed his appeal.
The unsuccessful defendant, however, appealed to this court after leave was
granted. Learned counsel for the appellant argued that, as the plaintiff’s
action was founded under customary law, the words alleged to have been spoken
could not have been actionable per se, unless the meaning attached to the words
was clearly understood by the only witness who was present and heard the
publication of the words in their original form. Learned counsel seriously
contended that no evidence was given by the plaintiff’s third witness that she
understood the words to have had any slanderous meaning or that after
publication she held the plaintiff in ridicule or contempt. Learned counsel
stated that the plaintiff’s third witness should have explained to the trial
court the meaning which she attached to or read into the words used. He
therefore concluded that in the absence of any evidence concerning the meaning
attached to the words used the action should not have been entertained because
the words in their native form could not be actionable.<o:p></o:p><o:p>&nbsp;</o:p>Dr. de
Graft-Johnson for the plaintiff-respondent, in reply to the helpful arguments
of learned counsel for the appellant, submitted in his usual characteristic but
very forceful manner that the words found by the trial local court to have been
spoken about the plaintiff by the defendant at a public place were actionable
per se according to customary law. Learned counsel placed much reliance for his
contention upon a statement of the customary law in a passage in Sarbah’s Fanti
Customary Laws (2nd ed.) at p. 113 which reads as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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 witchcraft, adultery, immoral conduct,
crime, and all words which sound to the</main>