Folks it has taken me sometime to finish reading the decision of Eric Baah JA in the case of Anas v Ken Agyepong. I have also paid attention to post judgement comments from across the broad spectrum of society.
My first reaction is that most people including so called legal luminaries and commentators react to snippets and headlines rather than the full gamut of judgements. I can’t blame them. Sometimes reading 65 or more pages of a court decision may be a drudgery indeed.
I wish to advise law of torts students to get a copy of the judgement as it may help them in their study of the law on defamation. It seems references were made to all the known authorities in that area.
In fact his discussion on defamation brought me nostalgic memories of when I used to teach Law of Torts at the Ghana School of Law from 1998 to 2005.
Now on the substantive case of defamation, the plaintiff has a burden to prove the following: that there was a publication; that the publication was referrable to the plaintiff and that the publication was defamatory in the sense that it brings the person of the plaintiff into disrepute or opprobrium.
If the plaintiff successfully discharges this burden then unless the defendant adduced a reasonable defence, then he may be held liable. The defences include truth, justification and fair comment.
The common tread underlying the defences of truth and justification is that defamation is about injuring one’s reputation. Therefore if one has no reputation, then same cannot be injured.
It seems to me upon reading the judgement that the plaintiff in this case positively proved publication, established the defamatory nature of the words used in the said publication.
On the issue as to whither the publication was referrable to the plaintiff, there were a lot of back and forth as deduced from the evidence in chief and cross examination. Mind you my dear reader that in this case the plaintiff did not show his identity to the court.
In fact he was represented by two surrogates so as we speak the judge doesn’t know the true identity of the person defamed. Notwithstanding inconsistencies in the evidence of plaintiff regarding the identity of the plaintiff, the judge relied rightly on innuendos to determine that the publications were referrable to the plaintiff.
The plaintiff haven established the ingredients of defamation positively cast a duty on defendant to disprove these positive averments. It seems to me that the crux of the decision rested on whether the publications were defamatory and if defamatory, whether the defendant established to the satisfaction of the court reasonable defences.
It seems the court accepted the defences of the defendant to the effect that the publications may carry in their belly defamatory statements but was of the view that the plaintiff has no reputation for the defendant to bring into disrepute.
The judge in coming to that conclusion referred to the payment of $5000 to a prosecutor, the payment of $75000 to a former Director of EOCO and the statement on record about the plaintiff being bought with $100000. All these were allowed to go into the court records and the trial judge justifiably relied on them in determining the issue of reputation.
Even though in my humble view, I consider some of the opinion expressed in the judgement as too broad and harsh, in my considered opinion those sentiments will continue to be obiter dicta and can therefore not form part of the grounds of appeal.
In my humble view the grounds of appeal should be on the error or otherwise in weighing the evidence. Certainly judicial errors are corrected on proper grounds of appeal but not on public insults. In this vein, I will plead with the surrogates of the plaintiff not to resurrect the fact that an interim judge was asked to continue and conclude the case.
If they had serious reservations they should have used the known processes to have fought it to the end. Maybe they were over confident that they had an unimpeachable case. In this light I always doff my hat for the lawyers of Dr Opuni and Agongo who have used the process to fight every step of the way to protect their clients.
Luckily the decision of the High Court is not final and the plaintiff instead of issuing sentimental public statements should rather disect the judgement and identify the relevant grounds for appeal albeit knowing that he may either win or lose the appeal.
(Pardon all errors in this of the cuff write up knowing also that today is Friday)
By: Lawyer Maxwell Opoku-Agyemang
