ERIC KWAME AMOAH v. BEN OWUSU DOMENA

BENIN,JSC:-

On October 19, 2009, the defendant/respondent/appellant, hereinafter called the defendant, caused a publication to be made in the Daily Graphic. A passport sized photograph of the plaintiff/appellant/respondent, hereinafter called the plaintiff, was attached thereto and the publication concerned the plaintiff. It read:

‘DISCLAIMER

BENOD MACHINE SHOP

MR ERIC KWAME AMOAH, former Manager of the above named shop no longer works with the shop.

Any transaction on behalf of the above named shop with institutions, companies, shops, and individuals by Mr Eric Kwame Amoah is null and void.

Any company which goes into contract with him do(sic) so at their own risk.

By: Managing Director

BENOD Machine Shop

Ben Owusu-Domena’

The above publication was repeated in the November 12, 2009 edition of the Daily Graphic. It is this publication that gave rise to the action before the High Court that has resulted in the appeal before this court. The plaintiff complains that the said publication has damaged his reputation and has also diminished his chances of finding employment on the job market. Hence the reliefs endorsed on the writ of summons, namely:

1. Declaration that the publication caused by the defendant in the Daily Graphic concerning the plaintiff is malicious and reckless.

2. Punitive and exemplary damages against the defendant for the malicious and reckless publication.

3. An order directed at the defendant to retract the offending publication in the same medium over the same number of times of the publication together with an apology.

The indorsement raised no claim known in tort. Though the category of torts is not closed, yet malice or recklessness is not a tortuous liability per se, it must be pleaded in relation to a specific tort. Thus the plaintiff is required to give the particulars of the libelous publication complained of in the indorsement to the writ as required by Order 57 rule 2 of the High Court (Civil Procedure) Rules, 2004, C.I. 47. And if he desires to do so in the statement of claim he must seek to amend the indorsement on the writ. The plaintiff did not comply with this provision in the rules and yet the defendant did not raise any objection in the proceedings. However, Order 81 of C.I. 47 has taken care of such non compliance especially where the defendant did not complain and participated fully in the proceedings. Therefore the particulars of the publication which were detailed in the statement of claim would be dee