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January 31, 1961
HIGH COURT
GHANA
CORAM
JUDGMENT OF ADUMUA-BOSSMAN, J
The appeal is against a judgment of the Native Court “A” of the Fanti Confederacy, confirmed by the magistrate's court (constituted by the Government Agent, Cape Coast) by which the plaintiff-respondent's claim to: “Damages for wantonly making slanderous statement against plaintiff in the presence of witnesses that the plaintiff is a mad woman” was upheld, and the sum of £G25 was awarded as damages by the native court, subsequently reduced to £G10 by the magistrate.
When the appeal came before the court on the 17th June, 1957, after discussion between counsel and the court, the dispute between the parties was settled on the following terms:
(1) The plaintiff to be paid the sum of £G5, together with one bottle of gin as pacification.
(2) She is to have the costs awarded her in the native court, and half the costs awarded her in the magistrate's court, but there are to be no costs of the appeal.
It was, however, agreed that, without prejudice to the settlement, the appeal was to be argued in view of two questions of law raised, namely:
[p.78]
(a) Whether the filing of a notice of discontinuance by the plaintiff and the consequential striking out by the native court, (without any liberty to bring a fresh action expressly reserved), of a former or previous action, identical in terms with the fresh action operates as res judicata so that the trial court should not have investigated the fresh or second action at all.
(b) Whether, assuming the matter was not res judicata and was open for investigation and determination by the court, it was not essential that plaintiff should prove damage as understood in the law of libel and slander, i.e., pecuniary damage, to be able to sustain her claim, having regard, inter alia, to the case of Amoah v. Djabi1, in which Michelin, J. held that the use of the words "You are a thief" amounted to mere abuse and was not capable of sustaining an action of slander without proof of special damage.
As to the first question, neither counsel for the defendant-appellant who put forward the contention nor counsel for the plaintiff-respondent who maintained that the contention was incorrect, advanced any grounds or reasons, or referred to any authorities, in support of their respective views.
As to the second question, the contentions of counsel for defendant-appellant were as follows:- "I submit that in the circumstances in which the words were used they were not defamatory or slanderous in the vie
AI Generated Summary
This appellate judgment by Adumua-Bossman, J., concerns a defamation dispute rooted in native customary law. The Native Court “A” of the Fanti Confederacy had upheld the plaintiff’s claim that the defendant called her a “mad woman” before witnesses, awarding £G25, which the magistrate’s court (Government Agent, Cape Coast) confirmed but reduced to £G10. On 17 June 1957, the parties settled the appeal with payment of £G5 and a bottle of gin as pacification, specified cost apportionments, and no appeal costs. By agreement, however, the court proceeded to decide two questions: whether a discontinued prior identical native court action, without express liberty to refile, created res judicata; and whether proof of special (pecuniary) damage is essential in slander between natives. Distinguishing High Court and Imperial procedural rules from native court practice, and emphasizing Sarbah’s Fanti Customary Law and the Courts Ordinance mandate to apply native law between natives, the court held that discontinuance did not bar a fresh action and that proof of special damage was unnecessary. Recognizing modern decisions that mere abuse to third parties can be actionable under customary law, the court dismissed the appeal.