WAGBA vs. DZOGBETSI [1993]DLCA4291

Date	1993-12-21
Suit No.
Citation No.	[1993]DLCA4291

AMUAH JA

FORSTER JA

AMMAH J

[1993]DLCA4291
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													<main id="main" class="content" style="min-height: 60rem" >WAGBA<o:p></o:p>vs.<o:p></o:p>DZOGBETSI<o:p></o:p>[COURT
OF APPEAL, HO]<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">

[1993 - 4] 1 GBR 339 – 405&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;DATE: 21 DECEMBER 1993<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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AMUAH
JA , FORSTER JA, AMMAH J<o:p></o:p>

</div>AMMAH
J. This is an appeal from the judgment of the High Court, Ho, dated 13 May
1988.<o:p></o:p>The
plaintiff-respondent took action against the defendant-appellant for the
following reliefs:<o:p></o:p>(a)
¢500,000 damages for malicious prosecution.<o:p></o:p>(b)
¢250,000 damages for false imprisonment.<o:p></o:p>(c)
¢250,000 for defamation; and<o:p></o:p>(d)
the repayment of ¢100,000 with interest being loan granted to defendant which
sum defendant has refused or failed to pay.<o:p></o:p>After
hearing the case the learned trial judge gave judgment for the plaintiff on the
reliefs (a), (b) and (c) with costs and ¢36,000 on relief (d) with interest.
Dissatisfied with the judgment the defendant-appellant has appealed to this
court.<o:p></o:p>The
grounds of appeal are:<o:p></o:p>“(a) the judgment is against the
weight of evidence.<o:p></o:p>(b) the learned trial judge has failed
woefully in his sifting and evaluation of the evidence and thereby occasioning
a very grave miscarriage of justice.<o:p></o:p>Further grounds to be filed on receipt
of the proceedings.”<o:p></o:p>No
additional grounds have so far been filed. Counsel for the defendant-appellant
argued both original grounds together. The learned trial judge has referred to
the facts in some detail in his judgment. I need not recapitulate them save the
salient points.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant-appellant was a businessman dealing in sugar at the time material to
this case. About February 1986 he employed the plaintiff-respondent, at first
as a store assistant and then as a store-keeper in one of his stores. At the
defendant-appellant’s request, the plaintiff-respondent gave him a loan of
¢100,000 against a receipt exhibit A. This came about, according to the
plaintiff-respondent, to enable the defendant-appellant meet a cheque of two
million cedis he had issued for which he had insufficient funds. The
defendant-appellant promised to pay this amount by the end of June 1986 but he
failed to do so. When he continued to demand the money from the
defendant-appellant, the latter reported him to Dzodze police for stealing 55
bags of sugar. The defendant-appellant brought a policeman to his house
identified him, and said: “This is the man arrest him”. He was then arrested
and taken to the police station at Dzodze where he was detained for some time.
He was later arraigned before the Denu circuit court and prosecuted on a charge
of stealing sugar. He was however acquitted and discharged at the end of the
prosecution’s case. He thereafter instituted the present action.<o:p></o:p>The
defendant-appellant denied the reliefs being claimed and counterclaimed against
the plaintiff-respondent for ¢156,000 “being the value of 39 bags which defendant
gave to plaintiff for sale but for which plaintiff has failed to account”. The
plaintiff-respondent has denied the counterclaim. The defendant-appellant’s
counterclaim was dismissed by the trial court.<o:p></o:p>For
convenience, I would deal first with relief (c) i.e. “¢250,000 for defamation”.
In this regard the plaintiff-respondent pleaded that defendant has soiled and
damaged his reputation as an honest businessman in the area, where he has lost
companionship of his friends because people accused him as a thief and a fraud.
He himself gave similar evidence in court.<o:p></o:p>In
support of this aspect of his case he called one Kofi Nkrumah, a driver from
Takoradi, who said he got to know plaintiff-respondent through the latter’s
senior brother.<o:p></o:p>Simply,
this witness’s evidence was to the effect that one day, plaintiff-respondent
came to inform him that defendant-appellant had accused him as a thief; he was
thereafter charged before the Denu circuit court. Mr Kofi Nkrumah said because
of this he shunned the company of the plaintiff-respondent until he later heard
that the plaintiff-respondent had been acquitted and discharged by that court.
Counsel for the defendant-appellant has referred to this evidence and other
pieces of evidence with regard to this relief and rightly pointed out, in my
view, that the publication referred to in the evidence, if anything at all, was
not the act of the defendant-appellant to make him liable. The
plaintiff-respondent also claims that the accusation caused him loss of
reputation as a businessman. However the plaintiff-respondent admitted in
cross-examination that during the pendency of the criminal investigation he was
employed by another business-woman. This evidence belies his claim that the
accusation lost him his respect as an honest businessman.<o:p></o:p>I
am satisfied that learned counsel for the defendant-appellant’s contention is
correct on the point. The learned trial judge was wrong in relying on such
evidence to sustain the claim for defamation. The general principle of the law
on this aspect is that the defendant is not generally liable for an
unauthorised repetition or republication of defamatory matter: see Ward v Weeks
(1830) 7 Ring 2176 approved in Wold Bundell v Stephens [1920] AC 956. He who
publishes his own defamation cannot complain.<o:p></o:p>I
would set aside the judgment on this relief and allow the appeal. I now deal
with the claim for false imprisonment.<o:p></o:p>In
Onogen v Leventis &amp; Co Ltd [1959] GLR 105 at 106 it was held:<o:p></o:p>