SOGBAKA vs. TAMAKLOE [1973]DLHC2207

Date	1973-09-13
Suit No.
Citation No.	[1973]DLHC2207

FRANCOIS J.

NUTSUGAH FOR THE APPELLANT.

W. T. DOKU FOR THE RESPONDENT.

[1973]DLHC2207
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													<main id="main" class="content" style="min-height: 60rem" >SOGBAKA<o:p></o:p>&nbsp;vs. <o:p></o:p>TAMAKLOE <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 25<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
13 SEPTEMBER 1972.<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;
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NUTSUGAH FOR THE APPELLANT.<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;
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FRANCOIS J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.<o:p></o:p>The
plaintiff brought an action against the defendant in the District Court, Keta,
for slander. The objectionable words used by the defendant and the subject of
the plaintiff’s complaint were “thief,” “useless man,” “non-native of Anloga
interfering in the affairs of the town.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff recovered judgment which this appeal assails. On the facts it cannot
be seriously challenged that the objectionable epithets were employed by the
defendant against the plaintiff. The issue however to which I have given
anxious reflection is whether the epithets were mere vituperation or vulgar
abuse, which should neither attract damages nor evoke action. I am impressed by
the fact that the words were spoken at a meeting where the defendant’s accounts
were being scrutinized and that hot words in the heat of emotion could be
expected in the circumstances. Under the common law no action for slander lies
for mere words evoked by heat or passion or for mere vulgar abuse. The contrary
is the customary law. See Sarbah in his Fanti Customary Laws (2nd ed.) at p.
113 and Dr. Danquah in the introduction to his Cases in Akan Law, p. xxiii who
are quoted extensively in Attiase v. Abobbtey, Court of Appeal, 29 July 1969,
unreported; digested in (1969) C.C. 149.<o:p></o:p><o:p>&nbsp;</o:p>It seems
therefore to some extent material to ascertain whether the suit is to be
determined under customary law or the common law. Following Attiase v. Abobbtey
(supra), I am of the view that a party need not elect which law he is
proceeding with. If it appears on the consideration of the whole facts that the
law applicable is customary law it should prevail. I have considered the
criticism of Attiase v. Abobbtey on this method of resolving the applicable
law, contained in Nkrumah v. Manu [1971] 1 G.L.R. 176. I do not think in
principle such a criticism is well founded. Secondly, I feel that whereas I am
bound by Attiase v. Abobbtey no such restrictions affect me with regard to the
Nkrumah v. Manu case.<o:p></o:p><o:p>&nbsp;</o:p>If I may
borrow from judicial practice elsewhere, I would cite with approval the
statement of Davies L.J. in Lane v. Willis [1972] 1 All E.R. 430 at p. 435,
C.A. that it is undesirable for a lower court to criticise as wrong a binding
authority of a higher court. In that case Lawson J.’s criticism of a judgment
of Lord Denning M.R. in Edmeades v. Thames Board Mills, Ltd. [1969] 2 All E.R.
127, C.A. was condemned. And this is as it should be. I have always found it
difficult to appreciate the reasoning which acclaims a decision as binding and
authoritative and yet subjects it to criticism. The principle of stare decisis
as I understand it, prohibits such public ventilation of dissent sometimes
dragged to lengths of decrial. On this aspect, I would like to quote an
observation of van Lare Ag.C.J. in the case of Kwami v. Quaynor [1959] G.L.R.
269, C.A. where the learned acting Chief Justice decried attacks on previous
judgments of superior courts..van Lare Ag.C.J. said at p. 277, “I would not
wish to be understood as agreeing with the obiter dicta in which the learned
Judge unfortunately indulged when criticising the judgments which came under
review by him.” If this rule is not strictly enforced the authority of a
precedent may be whittled away by gradual and piece-meal judicial nibbling. The
judge’s duty to allay doubts with positive decisions would then have turned to
the creation and multiplication of doubts.<o:p></o:p><o:p>&nbsp;</o:p>Lest I be
accused of the same error let me hasten to plead in my defence that I am
entitled to give reasons why I cannot follow a decision of a court of co-equal
jurisdiction which is not binding on me. On the facts therefore I have come to
a conclusion that customary law should be the decisive law applicable in these
proceedings. The epithets used in my view therefore give rise to an actionable
cause.<o:p></o:p>