JUDGMENT OF FRANCOIS J.
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."
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 [p.27] 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.
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.
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 appre
