Opoku Prempeh v Gyamfi (SUIT NO.H1/263/24) [2026] GHACA 7 (16 July 2026)

DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 1 IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA, 2026 CORAM JEROME NOBLE-NKRUMAH, J.A (PRESIDING) GEORGE BUADI, J.A FRANKLINA GESILA ADANU, J.A SUIT NO.H1/263/24 16TH JULY 2026 DR. MATTHEW OPOKU PREMPEH ----------- PLAINTIFF/RESPONDENT VERSUS SAMUEL GYAMFI ---------- DEFENDANT/APPELLANT JUDGMENT FRANKLINA GESILA ADANU, J.A: 1.0 General Overview This is an appeal of the High Court judgment delivered on 13/10/2022. The protection of reputation lies at the heart of the tort of defamation. Warren Buffett stated in his testimony before the House Subcommittee on Telecommunications DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 2 and Finance on 4 September 1991 in Washington, D.C., that: “It takes 20 years to build a reputation and five minutes to ruin it.” Nonetheless, to forestall abuse and to mitigate defamation suits while still recognising the rights of a defamed person to seek damages in compensation, the essential thresholds must necessarily be met by every prospective plaintiff. 2.1 Plaintiff/Respondent Case (“Respondent”) By an amended Writ of Summons and Statement of Claim filed on 16/07/2019, the Respondent stated that he is a medical doctor by profession, Minister for Education and the Member of Parliament for Manhyia South Constituency in the Ashanti Region of the Republic of Ghana. The Appellant is a lawyer by profession and the Communications Officer for the National Democratic Congress (NDC). The Respondent assert that in both public and private life, he has, by dint of hard work, earned himself an admirable reputation as a competent, diligent and principled individual and a responsible citizen. On several occasions, he has been recognised for his hard work, the most recent being a 2019 poll conducted by the Political Science Department of the University of Ghana dubbed, “Assessment of the 275 Members of Parliament (MPs) – Perspective from the Constituents”, which said poll declared him the best performing Minister of the Republic of Ghana. The Respondent further averred that he has participated in many conferences and seminars both in Ghana and abroad and has gained the respect and admiration of his contemporaries and colleagues both in Ghana and abroad. According to the Respondent, at a press conference addressed by the Appellant on 13/06/2019, the Appellant read out and distributed to the members of the press, a Press Statement which sought to associate the Respondent with one Seidu Yakubu Mba, a suspect in the high-profile and infamous kidnapping case DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 3 involving two Canadian students who were on an exchange programme in Ghana, sometime in June 2019. The Respondent said at paragraph 14 of his amended Statement of Claim that at the said Press Conference and in the said Press Statement, the Appellant categorically referred to Seidu Yakubu Mba as the ringleader of a syndicate of thugs and criminals who were behind the kidnapping of the two Canadian students. Furthermore, the Appellant proceeded to associate the said Seidu Yakubu Mba with the Respondent by stating and publishing the following false words, contained in the said Press Statement: “Seidu’s association with the NPP is more than meets the eye. He is alleged to be the personal bodyguard of the Asokore Mampong MCE, Alhaji Alidu Seidu, and an errand boy for both Manhyia South MP, Hon. Matthew Opoku Prempeh, and Ashanti regional Chairman of the NPP, Bernard Antwi Bosiako (a.k.a. Wontumi).” With the above particulars of defamation, the Respondent stated that the Appellant made the said statement within a context targeted at ascribing to the Respondent, inappropriate conduct of being involved with persons the Appellant described in the Press Statement as thugs and criminals. The Respondent posits that the above statement is not only false but malicious, as the said Seidu Yakubu Mba is not his errand boy. It is the case of the Respondent that the said false and malicious statement was given extensive coverage in the traditional media through newspaper reports and various discussions on radio and television. Besides, it was also given widespread coverage through social and digital media, particularly via highly frequented online portals , including YouTube, an American video-sharing website with a very large viewership. Consequently, the Respondent’s character and reputation have been seriously damaged by the alleged false and malicious defamatory statement by the Appellant. The DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 4 Respondent claims that the Appellant has no reasonable and maintainable defence to the instant action. The reliefs endorsed on the Respondent’s Writ of Summons against the Appellant were as follows: “ a) A declaration that the words complained of and published by the Defendant and contained in paragraph 14, herein, are defamatory of the Plaintiff’s character. b) An order of the Honourable Court directed at the Defendant to publish an unqualified retraction and an apology with the same prominence the defamatory words received within 7 days after the judgment. c) An order of the Honourable Court for perpetual injunction restraining the Defendant, his agents, assigns, servants and any person claiming authority from the Defendant, from further making and/or publishing any defamatory words against the Plaintiff. d) The sum of One Million Ghana Cedis (GHC 1,000,000.00) in damages for defamation e) Costs including Lawyer’s fees; and f) Any other order or orders as this Honourable Court may deem fit in the circumstances.” 2.2 Defendant/Appellant’s Case (“Appellant”) In his amended Statement of Defence filed on 25/11/2019, the Appellant denied the Respondent’s allegation that the statement that Seidu Yakubu Mba is his errand boy is defamatory. According to the Appellant, the various meanings ascribed to the alleged defamatory statement are far -fetched, misplaced, unreasonable, contextually and semantically inaccurate. The Appellant further stated that the Respondent has not suffered any reputational damage by the DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 5 alleged defamatory statement. The Appellant averred that even if the statement complained of is defamatory (which it is denied), it amounts to a fair comment on matters of public interest, both international and local. Therefore, any opinion expressed by the Appellant was fair and not malicious. According to the Appellant, beyond stating that Seidu Yakubu Mba is an errand boy of the Respondent, whether within context or not, he never stated that the Respondent has misconducted himself or that he is not a law-abiding citizen or works with criminals by reason of his association with the said Seidu Yakubu Mba. 3.0 The Trial Court The core issues identified by the parties at the stage of Summons for Directions for trial were: 1. Whether or not, within the context created and advanced by the Defendant in the delivery of the press statement at the press conference, the statement complained of bears meanings which are defamatory of the Plaintiff; 2. Whether or not the statement complained of in paragraph 14 of the statement of Claim is defamatory; 3. Whether or not the pleas of fair comment and justification are available to the Defendant for making the statement complained of within the context created by the Defendant in the press statement; 4. Whether or not the Plaintiff is of the stature attributed to him by paragraphs 4,5,6,7,8. 9, and 10 of the amended Statement of Claim; 5. Whether or not the Defendant, on the 17/06/2019 on a radio programme on Asempa FM, insisted that the statement complained of was true and thus refused to retract same and render an apology to the Plaintiff; 6.Whether or not the Plaintiff has suffered any damage to his reputation; 7. Whether or not the Plaintiff is entitled to the reliefs he seeks. The Respondent did not testify himself. By a power of attorney, the Respondent DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 6 appointed Haruna Alhassan as his lawful attorney. The power of attorney was exhibited as A. This was followed by a mountain of exhibits in support of the Respondent’s case. Exhibit C was produced as proof of the Respondent’s status as a Member of Parliament (MP) since 2009. The Respondent’s attorney also exhibited his practice as a surgeon in Ghana and the United Kingdom and his role as an active member of the Royal College of Physicians and Surgeons of the United Kingdom as Exhibit D. Exhibit E was further produced to show that the Respondent is an alumnus of the prestigious Kennedy School of Government, Harvard University , where he studied Leadership and Government and was adjudged the 2020 Recipient of the Harvard Ministerial Medal of Achievement in recognition of his accomplishment in strengthening public education in Ghana. To prove that the Respondent’s handwork has been recognised on several occasions, his lawful attorney also produced Exhibit F regarding the 2019 poll conducted by the Political Science Department of the University of Ghana , dubbed “Assessment of the 275 Members of Parliament (MPs) – Perspective from the Constituents”, which said polls declared the Respondent as the best performing Minister of Ghana. Exhibit G, which was a copy of a news report, was further tended to show that the Respondent was adjudged the overall best Minister for 2017 by several award schemes, including the Ghana Entrepreneur and Corporate Executive Awards, where the Respondent was honoured by the United States of America’s Ambassador to Ghana at the time, Robert Porter Jackson. To demonstrate that the University Teachers Association of Ghana (UTAG) DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 7 recognised the attributes of the Respondent and conferred honours on him in 2019, and to show that the Respondent’s character had contributed to making the Ministry of Education the most successful ministry of the administration at the time, his lawful attorney produced Exhibit H. A newspaper report, Exhibit J, was tendered in evidence to show that the Respondent was adjudged by Asempa FM, one of the leading radio stations in Accra, as the best performing Minister, in the company of the likes of Hon. Joe Ghartey, Alan John Kyeremanteng and Dan Kwaku Botwe. Exhibit K, a news report, was produced to show that the Respondent is loved by the people of Manhyia South, whom he represents in Parliament, to the extent that he was acclaimed as the 2020 Parliamentary Candidate for the New Patriotic Party. A copy of the Press Statement published by one of the country’s popular news portals, www.ghanaweb.com, which the Appellant read at the press conference held on 13/06/2019, was tendered in evidence as Exhibit L. Exhibit “M” Series were copies of Court Notes and news report on the subject produced to show that the said Seidu Yakubu Mba, who at the time of the press conference had been arrested along with some other persons and was standing trial for the alleged offence of kidnapping, had been discharged together with three others by the Criminal Division of the High Court Accra, after the Attorney- General at the time had informed the court of its decision to substitute the charge sheet with a new one following its own investigations into the matter. To prove that the malicious statement, within the context stated, was published and given extensive coverage in the traditional media as well as through highly DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 8 frequented online portals, various radio and television discussions, the Respondent’s attorney exhibited copies of the publication on some of the online portals as Exhibit “N” series. This was followed by the production of Exhibit “P” Series, which was the Respondent’s demand for an apology and a retraction of the false and malicious statement from the Appellant, which the latter refused, insisting on a popular political afternoon talk show, “Eko si Sen?” on Asempa FM that the statement made was factual. By a Supplementary Witness Statement filed on 28/10/2020 pursuant to leave granted by the court on 14/10/2020, the Respondent’s lawful attorney additionally tendered Exhibit “B” Series and Exhibit “D” Series as proof of the Respondent’s association with the Kennedy School of Government, Harvard University and the professional and academic records as evidence of the Respondent’s profession as a surgeon, respectively. On the part of the Appellant, he testified by himself and called two other witnesses. He tendered the Press Statement he read at the Press Conference held on 13/06/2019 as Exhibit 1. In support of his testimony that the comments made by the members of the public on the statement complained of showed that the Respondent was not exposed to ridicule, hatred or contempt or that he was lowered in their estimation, Exhibit 2 was produced in evidence. To confirm the Respondent’s association with Seidu Yakubu Mba, the Appellant tendered Exhibit 3, which was the news article published on Graphic Online “showing one of such invitations and/or arrest by the police, following DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 9 investigations on some occasions regarding some disturbances caused by he (sic) and ‘his boy’ during the Respondent’s campaign in Manhyia Constituency in 2012”. The testimony of DW1, Mahfuz Jibreel was the next to follow. Mahfuz Jibreel produced the same news article published on Graphic Online (supra) of his attack dated 30/11/2012, which was exhibited as 4. 4.0 Decision of the Court At the end of the trial, the High Court entered judgment in favour of the Respondent. The court held that the Appellant published defamatory statements against the Respondent with his publication and distribution of the press statement held on 13/06/2019. The learned trial judge awarded the Respondent GHC500,000.00 damages in compensation for the injury suffered by the Respondent on account of the defamatory statement. Cost of GHC40,000.00 was also awarded in favour of the Respondent. The court further ordered the Appellant to publish an unqualified apology and retraction of the defamatory statement within fourteen (14) days from the service of the Respondent’s Entry of Judgment. Nettled by the decision of the court below, the Appellant lodged this instant appeal based on the grounds set out in the notice of appeal. 5.0 Grounds of Appeal The grounds of appeal specified in the Notice of Appeal are as follows: “a. That the judgment is against the weight of the evidence on record. DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 10 b. The trial judge erred in holding that the Plaintiff/Respondent discharged his burden of proof relative to all the elements needed to establish that the Defendant/Appellant defamed the Plaintiff/Respondent. c. That the quantum of damages awarded against the Defendant/Appellant is excessive. d. That the trial judge erred when he held that the Defendant/Appellant’s witness was not credible. e. The trial judge misdirected himself in his consideration of the Defendant /Appellant’s defence of truth, occasioning a substantial miscarriage of justice to the Defendant/Appellant. Particulars of Misdirection i. The court below misdirected itself when it stated that the Defendant/Appellant did not plead the defence of truth contrary to the pleadings of the Defendant/Appellant and the court’s own statement that the Defendant/Appellant pleaded justification. ii. The court below misdirected itself when it stated that the defence of truth was introduced for the first time in the witness statement of the Defendant/Appellant. iii. The Plaintiff/Respondent did not object to the portion of the Defendant/Appellant’s witness statement on the defence of truth on the basis that the Defendant/Appellant did not plead and particularise the defence of truth. iv. The failure by the court below to appreciate that the defence of justification is one and the same as the defence of truth. DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 11 v. The evidence of the Defendant/Appellant’s personal knowledge of the Plaintiff/Respondent’s association with Seidu Mba in cross-examination was not controverted by counsel for the Plaintiff/Respondent. f. The trial judge’s cavalier and insufficient consideration of the Defendant/Appellant’s defence of fair comment has occasioned a substantial miscarriage of justice to the Defendant/Appellant. g. Additional grounds of appeal to be filed upon receipt of a copy of the Record of Appeal.” 6.0 Applying the Law and Analysis My Lords, to the matter on appeal, grounds (a) (e) (b) and (c) will be analysed together. It should be observed that the particulars of error or the nature of the error committed by the trial judge in respect of grounds (d) and ground (f) to wit, “that the trial judge erred when he held that the Defendant/Appellant’s witness was not credible” and “the trial judge’s cavalier and insufficient consideration of the Defendant/Appellant’s defence of fair comment has occasioned a substantial miscarriage of justice to the Defendant/Appellant.” were not disclosed by the Appellant. Rule 8 (4) and (6) of the Court of Appeal Rules, 1997 (C.I. 19) provides as follows: “(4) “Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated. (6) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 12 any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.” The rules require that the specific details of the alleged error (s) and the type of error be stated. An appellate court is disabled from reviewing a ground of appeal which does not meet the threshold provided by the law , as it is deemed incompetent. Grounds of appeal should be properly settled in a way that makes the work of an appellate court seamless by identifying the specific points of law or facts in the impugned decision appealed against. In International Rom Ltd v. Vodafone Ghana Ltd [2016] GHASC 62, the Supreme Court, while bemoaning the abuse of the rules in respect of the proper formulation of the grounds of appeal, declared that: “… It is time to apply the rules strictly” (Emphasis mine) and struck out the offending grounds of appeal. We hereby strike out the grounds of appeal that the trial judge erred when he held that the Appellant’s witness was not credible, and the trial judge’s cavalier and insufficient consideration of the Appellant’s defence of fair comment has occasioned a substantial miscarriage of justice to the Appellant, as incompetent, given that they both sin against the rules of engagement. The last ground of appeal (f) that “Additional grounds of appeal to be filed upon receipt of a copy of the Record of Appeal”, is just a fail-safe clause in procedural terms. The Record of Appeal does not show that any additional grounds of appeal were subsequently filed by the Appellant. 6.1 Grounds (a) (e) (b) and (c). The omnibus ground that the judgment is against the weight of the evidence serves as a shield to every appellant. It provides a haven for appellants to the extent that an appeal will certainly be determined should all the other grounds of DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 13 appeal fail the test of competency and are consequently struck out. In the case of Otoo and Another v. Dwamena [2018-2019] 1 GLR 23, the Supreme Court, speaking through Pwamang JSC noted at page 28 as follows: “… The sole ground of appeal is that the judgment is against the weight of the evidence. This ground of appeal is an invitation to the Court to comb through the record that was placed before the lower court and decide for ourselves whether, having regard to the evidence and the law relevant for a determination of the case, the lower court was right in its findings.” Nonetheless, Aikins JSC in In Re Bonney (Decd), Bonney v. Bonney [1993] JELR 68227 (SC) admonished that despite an appeal being a rehearing, thus entitling the Appellate Court to make up its own mind on the facts and draw inferences from them under no circumstances should an Appellate Court interfere with the findings of facts made by the trial court except where they are clearly shown to be wrong, or that the court did not take all the circumstances and evidence into account, or had misapprehended certain pieces of evidence or drawn wrong inferences without any evidence to support them, or had not taken proper advantage of having seen and heard the witnesses. See also In Re Yendi Skin Affairs; Yakubu II v. Abudulai (No.2) [1984 -86] 2 GLR 239 and Boateng v. Boateng [1987-88] 2 GLR 81. Defamation Finding an exhaustive definition for the word “defamatory” is a herculean task, as definitions invariably turn to avoid some difficulties. A combination of statements that help in illustrating its meaning has been preferred by judges. In the old English case of Parmiter v. Coupland and Another (1840) 6 M & W 105, the working description of a defamatory statement given at page 106 was that it injures the reputation of another by exposing him to hatred, contempt, or DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 14 ridicule, or which tends to lower him in the esteem of right-thinking members of society. Relying on some other old English cases such as Gutsole v. Mathers (1836) 1 M & W 495, an expansive description is, however, proffered by the Editors of Halsbury’s Laws of England (Butterworths 1979, 4th ed), Vol 28, page 7, para 10 as follows: “A defamatory statement is a statement which tends to lower a person in the estimation of right-thinking members of society generally or cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.” Although a statement may not superficially be considered defamatory, a plaintiff may argue that it carries an innuendo (context test), that is, it bears an inner meaning which makes it defamatory. See Trolley J.S. Fry & Sons Ltd. [1931] 2 KB 331. Under such circumstances as in the instant case, a plaintiff must plead and prove such facts in support of the alleged innuendo. The case of Owusu- Domena v. Amoah [2015-2016] 1 SCGLR 790 at page 801set out the two steps involved in establishing defamatory publication, which are mutually exclusive. First, one must ascertain whether the publication complained of was capable of a defamatory meaning and second, whether it may be established from the prevailing facts and/or circumstances. Can statements made on ‘alleged’ terms ground a claim in defamation? My Lords, the courts turn to treat the meaning of the published words as a matter of construction to be interpreted objectively in their context, the point of reference being the opinion of right-thinking members of society. Thus, a statement made on alleged terms, as in the matter before us, can amount to a defamation action if the person repeating the allegation essentially adopts it as their own, asserts it as DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 15 a fact, or fails to properly attribute it using the strict legal standards required for defamation. The rationale is to prevent individuals from passing along scurrilous rumours under the guise of ‘allegations’ to evade defamation standards. Stating something on ‘allegation’ terms can be actionable if the context suggests the speaker is implicitly validating the rumour, or if the way the allegation is phrased conveys a defamatory meaning to a ‘right-thinking member of society. The courts employ two tests in dealing with ‘alleged ‘statements, to wit, the substantial truth test, which requires the person repeating the allegation to prove that the core allegation is true and the context test. In Youssoupoff v. Metro-Goldwyn— Mayer Pictures Ltd (1934) 50 TLR 581, a woman alleged to have been raped was considered defamatory, given that such an accusation would most likely result in her being shunned. In the instant case, the Appellant took full responsibility for every word contained in the statement complained of, including punctuation marks, under cross-examination. (see page 201of the ROA). Can statements made at a Press Conference ground an action in defamation? My Lords, a central question which begs answering is whether a press statement can ground a defamation action. Can a plaintiff be held liable for defamation in respect of a press statement he perhaps did not personally author, but which he was part of issuing as a group and which he publicly read? This question engages the fundamental principles of defamation law concerning publication. A defamatory statement is only actionable if it is communicated to at least one person other than the claimant. Every person who participates in the publication of a defamatory statement, including reading the statement to a third party such as the media and the public, may be held liable, regardless of whether they authored it. The law does not restrict liability to the original author alone. Each member of the group who participated in its publication may be treated as a joint publisher and thus jointly and severally liable. The principle, as enshrined in the DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 16 landmark Australian case of Webb v Bloch (1928) 41 CLR 331 is that anyone who intentionally participates in the publication of defamatory material is liable as a publisher, even if they did not author the words themselves. By signing the petition and contributing to its circulation, each signatory had made the publication their own. Accordingly, the Appellant in the case before us cannot be shielded because the publication complained of originated from the Press Conference held on 13/06/2019, which he read out and distributed copies to the press in his capacity as the Communications Officer for the NDC. What are the defences to the tort of defamation? There are several defences to the tort of defamation. There is the public policy defence of absolute privilege intended to guard the public interest on certain occasions, such as parliamentary sittings, judicial privileges and communications between solicitor and client regarding judicial proceedings, often provided by statute, even if the defamatory statement was untrue. As it is deeply rooted in the protection of free speech, proof of malice is irrelevant. See the case of Church of Scientology of California v. Johnsonsmith [1972] 1 QB 522, it was held that a plaintiff cannot use statements in Parliament to show malice to defeat fair comment on a statement made outside Parliament. In contrast, the defence of qualified privilege is unsupportable if it can be proved that the defamation statement or words were actuated by malice or improper motive. Qualified privilege is the guardian of free communication, such as words protecting the interests of a publisher or the public interest or words or statements relating to matters of common interest, honestly made or expressed. In Reynold v. Times Newspaper Ltd and Others [1999] 4 AII ER 609, the House of Lords laid down the test for establishing a responsible publication to shield the media from being gagged for fear of facing defamation suits. DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 17 Another defence, which stems from the belief that honest and fair criticism is a sine qua non in every freedom-loving country, is fair comment. The comments or statements made must be an opinion on facts. The defence cannot hold if the defendant cannot prove the factual basis of the statement made. Once there is a factual basis for the statement made, opinion is free . Put differently, the defendant’s belief in the impugned statement must be one with a sufficient substratum. See Kemsley v. Foot [1952] AC 345. The defence of fair comment is available to an honest person expressing an opinion, whether exaggerated, wrong or prejudiced. See Slim v. Daily Telegraph Ltd [1968] 2 QB 157, where Lord Denning MR pronounced at page 170 that: “No matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. …the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements.” However, this defence would also fail if actual malice is established by the plaintiff, as it has the propensity to negate a plea of fairness. See the House of Lords decision in the case of Telnikoff v. Matusevitch [1990] 3 WLR 725 at 741. Malice may be difficult to establish, but can be inferred from the statement itself, such as if the impugned statement is wholly disproportionate to the facts and the extent of dissemination of the impugned statement. Another critical defence is justification or truth, which means that the defendant says the defamatory statement is true. The rationale for this defence was pronounced by Littledale J in the old case of McPherson v. Daniels (1829) 10 B & C 263 at 272 “… the law will not permit a man to recover damages in respect DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 18 of an injury to a character which he either does not, or ought not to possess.” The defendant bears the duty of substantially establishing the veracity of the defamatory statement. See Lewis v. Daily Telegraph [1964] AC 234. At common law, the defendant must plead the defence of justification (truth) with sufficient particularity to enable the plaintiff to know precisely what case he must meet. Prager v. Times Newspapers Ltd. ]1988] 1 WLR 77. This requirement has been codified under Order 57, Rule 3 (2) of the High Court Civil Procedure Rules 2004 (CI 47) as amended. Thus, if the defendant relies on the defences of justification (truth) and/or fair comment, the defendant must explicitly identify exactly which words complained of are alleged to be statements of fact and provide particulars and facts the defendant relies upon to prove that the statements are true in substance and in fact. What are the essential elements to prove in establishing that a published statement is defamatory? The learned author Professor Kofi Kumado, in his book “Introduction to the Law of Torts in Ghana”, published by Black Mask Ltd, 2019 (second edn), chapter 27, pages 238-244 summarises in his view the four basic elements in the common law of defamation (whether slander or libel), a prospective plaintiff must prove that a published statement is defamatory as follows: 1. A plaintiff must prove that the communication is capable of a defamatory meaning. The learned author again provides four (4) critical English common law tests for establishing this first element. 2. The second element is the interpretation of the words to determine whether they are defamatory. “The words must be construed in their fair and natural meaning as a reasonable, ordinary people will understand , except where DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 19 innuendo is pleaded…” 3. The third element is that of reference to the plaintiff; that is, there must be something in the defamatory statement pointing to the plaintiff. The easiest scenario is where the plaintiff is named, as in the instant case. 4. The fourth element is publication, that is, making known the defamatory statement after it has been written or spoken. If a defamatory statement is not published, a person’s reputation suffers nothing. See Red Slipper v. British Broadcasting Corp. [1991] I AII E.R. 165. In our context, in the absence of a statutory definition of defamation, the judicial ingredients for establishing that a statement is defamatory, as laid down at page 802 in the case of Owusu-Domena v. Amoah (supra), are: “the plaintiff must plead and lead evidence on the following matters in order to succeed: (i) there was publication by the defendant; (ii) the publication concerned him, the plaintiff; (iii) the publication was capable of a defamatory meaning in its natural and ordinary sense; (iv) alternatively or in addition to (iii) above, that from the facts and/or circumstances surrounding the publication, it was defamatory of him, the plaintiff; and (v) if the defendant seeks the defence of qualified privilege or fair comment, that the defendant was actuated by malice…” See also the case of Benjamin Kwasi Duffour v. Bank of Ghana & Anor (2019) JELR 107042 (CA) which outlines other criteria such as the statement must concern a matter of fact, not simply an opinion to be considered defamatory, it is not a privileged statement, that the statement must have caused injury to the DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 20 plaintiff as in harming his reputation and that the statement is false. For emphasis, the particulars of defamation in the case before us are as follows: “Seidu’s association with the NPP is more than meets the eye. He is alleged to be the personal bodyguard of the Asokore Mampong MCE, Alhaji Alidu Seidu, and an errand boy for both Manhyia South MP, Hon. Matthew Opoku Prempeh, and Ashanti regional Chairman of the NPP, Bernard Antwi Bosiako (a.k.a. Wontumi).” In response to the claim by the Respondent that the publication has defamed him, the Appellant submitted that the statement is overstretched and that same is not defamatory. The Appellant further contended that in any case, if the impugned statement is defamatory, it amounts to a fair comment and therefore he is justified. Learned counsel for the Respondent submitted at page 260 of the ROA that: “It was not until the Defendant filed his Witness Statement that he distinctly introduced the defence of justification, and even that was on the basis of information gathered from third parties and not based on his personal knowledge.” As already stated, a defendant must plead the defence of justification, which is the same as truth with sufficient particularity. Order 57, Rule 3 (2) of the High Court Civil Procedure Rules 2004 (CI 47) as amended states: “Where in an action for libel or slander the Defendant alleges that in so far as the words complained of consists of statements of fact, they are true in substance and in fact, and in so far as they consist of expression of opinion they are fair comment on matters of public interest, or pleads to the like effect, the Defendant DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 21 shall give particulars stating which of the words complained of the Defendant alleges are statements of facts and of the facts and matters the Defendant relies or in support of the allegation that the words are true.” The provision of particulars in defamation actions is required to prevent the element of surprise and to ensure that the opposing party and the court know exactly what facts each side intends to prove at the trial. Thus, if the defendant relies on the defences of facts such as justification (truth), privilege or fair comment, he must explicitly identify exactly which words complained of are alleged to be statements of fact and provide particulars and facts the defendant relies upon to prove that the statements are true in substance and in fact. Failure to particularise such defences is, however, not fatal. In the Court of Appeal case of Kwadwo Anning v. Kwasi Darkwa (2016) DLCA 5212, the Court held that although the plaintiff failed to particularise the words complained of in terms of Order 57 rule 3(1), because there was no objection from the defendant when the Plaintiff was leading evidence, the court was bound to consider same. Although the above case related to the plaintiff’s failure to particularise the defamatory words complained of as per the rules, the same holding can be fairly held here in respect of the defendant, in our case, the Appellant’s failure to particularise his defence. Moreover, the courts overlook mere irregularities that do not go to jurisdiction, breach of rules of natural justice, nor breaches of the Constitution and/or statutes. As held in Republic v. High Court, Accra; Ex parte Allgate Ltd. (Amalgamated Bank Ltd. Interested Party) [2007-2008] SCGLR 1041 at page 1054: “… where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004 (C.I. 47), such non-compliance is to DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 22 be regarded as an irregularity that does not result in nullity, unless the non- compliance is also a breach of the Constitution or of a Statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction”. (Emphasis mine). This position has been echoed by Atuguba (then Ag CJ.) in the case of Opoku & Ors (No.2) v. Axes Co. Ltd (No.2) [2012] 2 SCGLR 1214 at 1231 as follows: “For the avoidance of doubt however, I would emphasise that rule 1 of Order 81 of C.I.47 is truly a comprehensive insurance policy covering all procedure defects arising from the provisions of C.I.47 except where the same also have a constitutional pedestal ….” (Emphasis mine). The courts have stressed that where irregularities come to the notice of a party, objection to the irregularity must be raised promptly and without taking a fresh step that may constitute a waiver of the objection, especially when expenses have been incurred in the prosecution of the case or the raising of a defence. As pointed out by Lyndhurst L.C. in St Victor v. Devereux [1845] 14 L.J. Ch. 244, at 246, “it is a fixed rule of this Court and Courts of Common law that where an irregularity has been committed and where the opposite party knows of the irregularity, he should come in the first instance to avail himself of it, and not allow the party to complain of that irregularity of which, if he had availed himself in the first instance, all that expense would have been rendered unnecessary” see Ababio v. Tutu [1962] 1 GLR 489 SC. My Lords, in this case, the defence of truth or justification was strongly introduced in the Appellant’s witness statement, but without objection by the Respondent’s counsel. At page 177 of the ROA this is what transpired: “By Court: Any objection in respect of the contents of the witness statement of the Defendant. DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 23 Counsel for the Plaintiff: No objection.” (Emphasis mine) Furthermore, the failure to particularise the defence to a defamatory claim as required under Order 57 rule 3 (2) constitutes a mere irregularity, as the substance of his defence to the claim of defamation could be gleaned from the pleadings. The averment by the Appellant at page 40 of the ROA in his amended Statement of Defence was: “The Defendant avers that even if the statement is defamatory (which is denied), the statement constitutes a fair comment on matters of public interest, as far as they are expressions of opinions and Defendant is justified.” In our view, it is thus too late in the day for the Respondent to object to the Appellant’s failure to particularise his defence and the Respondent, having himself filed processes after the filing of the defence, coupled with his counsel’s failure to have objected to the witness statement, he is deemed to have waived his right to object. The learned trial judge erred when he concluded at pages 330 and 332 of the ROA as follows: “In his amended statement of defence the Defendant did not plead and particularized that the statement was true. The defence was in a different direction. The defence of truth was introduced for the first time in the witness statement of the Defendant. The statement of defence centred on wrong interpretations claimed by the Defendant on the words used during the press conference …” At page 332 of the ROA, the judge further stated: “The position of the law is that were the defence to be that the Defendant’s DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 24 statement made at the press conference was true which is an absolute defence in defamation cases then the Defendant should have made it part of his defence by pleading, particularizing and proving same. That is not the situation with the Defendant’s case.” The defence of justification or truth means that the defendant says the defamatory statement is true. The defendant bears the duty of substantially establishing the veracity of the defamatory statement. See Lewis v. Daily Telegraph (supra). In Ghana, justification or truth is seen as a complete defence against a claim of defamation. In the Benjamin Kwasi Duffour case (supra), the court said this on the defence of justification: “The truth is said to be the best defence against it; if the statement against another can be shown to be true, then an action for defamation is not sustainable…” Where a defendant can prove that the gist or the substance of the statements under review is wholly or even substantially true, the claim of defamation will fail on the ground of justification. See Professor Kofi Kumado, the learned author, in his book (supra), chapter 27. The rationale for this defence was pronounced by Littledale J in the old case of McPherson v. Daniels (1829) 10 B & C 263 at 272, thus: “... the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess.” The Appellant in this case produced exhibit 3 , which was the news article published on Graphic Online “showing one of such invitations and/or arrest by the police, following investigations on some occasions regarding some disturbances caused by he (sic) and ‘his boy’ during the Respondent’s campaign in Manhyia Constituency in 2012”. DW1, Mahfuz Jibreel also testified that he DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 25 had been a victim of an attack by one of the alleged ‘boys’ of the Respondent and tendered the same news article published on the Graphic Online of his attack dated 30/11/2012 as exhibit 4 (Exhibit 4). Counsel for the Respondent submits that when the Appellant led evidence in his Witness Statement to the effect that the impugned publication was true, albeit he had not pleaded truth as a defence, he never did so based on his personal knowledge. Besides, the Appellant did not personally witness the event reported in Exhibit 4, nor was the said Seidu Mba mentioned in it. At page 28, paragraph 6.42 to 6.48 of his address, counsel further argues that no evidence was produced to confirm the identity of the DWI as to whether he was the person named in the report to have been the person purportedly attacked in the said Exhibit 4. A defendant need not possess personal, first-hand knowledge of the events or the facts to rely on the defence of justification (truth). The sworn testimony of a third party’s evidence or documents that prove that the offending publication is substantially true should be sufficient. The trial judge was therefore in error when he pronounced at page 332 of the ROA that: “It is strange that the Defendant who never claimed to know Seidu Yakuba Mba will all of a sudden claimed (sic) to know the said person during cross examination. The Defendant after realising that his defence was about collapsing turned to concentrate on the story of DWI to build a defence. All the evidence relating to the DW1 was the evidence relied on by the Defendant to claimed (sic) that he saw the plaintiff in the company of the said Seidu Mba on many occasions. I do not think that the Defendant was telling the truth when all of a sudden in his answers in cross examination he sought to portray that Seidu Yakubu Mba is known to him for several years. Such an important evidence was not part of the evidence contained in his witness statement.” DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 26 In this case, the Appellant produced Mahfuz Jibreel, who took the witness stand and was cross-examined on his testimony and the news article published on the Graphic Online of his attack dated 30/11/2012 (Exhibit 4), years before the offending publication. See pages 54-57 of the ROA. If the Appellant had simply repeated what Mahfuz Jibreel told him without the said Mahfuz Jibreel providing his sworn evidence, it would have been struck out as inadmissible. The caption of the news article, Exhibit 4, the witness produced in evidence was: “Police question Manhyia MP over Ashtown incident.” Part of it read as follows: “Police investigators have questioned the Member of Parliament (MP) for Manhyia, Dr. Mattew Opoku Prempeh, over the disturbances in the Manhyia Constituency in Kumasi Thursday night in which two persons were wounded, one seriously. This was after the MP responded to an earlier invitation by the Police to report at the regional police station to assist in investigations into the matter … Regional Police Commander, DCOP Augustine Gyening confirmed in an interview with Graphic.com.gh that the police took a statement from the MP and released him on bail ‘while we look for his boys who are suspects in the case’… The regional commander said that one Gausu who fired the gun that seriously injured one of the victims, Mafius Jibril, 24 was on the run and the police had mounted a search for him. … His sister Jamila Jibril also suffered some injuries around the right ear and was treated and discharged at the Manhyia government hospital. Explaining the circumstances leading to the shooting incident, DCOP Gyening said around 4.30 pm on Thursday, Dr. Opoku Prempeh who is standing on the ticket of the NPP for the newly created Manhyia North Constituency in the December 7 elections, was distributing his posters as part of his door to door campaign. Accompanied by some of his ‘boys’, they went to the house of Jamila but the woman demanded to be given some money and T. Shirt of the candidate. DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 27 The regional police chief said the NPP candidate promised to send the T. Shirt and money to her later. During the interaction, the woman saw Gausu who allegedly had a standing conflict with her brother. Later after the MP and his team left, Jamila and her brother Mafius were on their way to visit a family member when they met Dr. Opoku Prempeh and his group where they immediately attacked Mafius.” The above Exhibit 4 was produced in evidence without objection. The submission of counsel for the Respondent at page 282 of the ROA paragraph 8.60 was therefore without basis, but it erroneously found favour in the eyes of the learned trial judge. He noted thus: “…. when the Defendant, raised the defence of truth for the first time in his Witness Statement as aforementioned, he never did so on the basis that the statement complained of was justified or true because he personally knew that the said Seidu Yakubu Mba was the errand boy of the Plaintiff. Indeed, it is important to emphasis that nowhere in the Defendant’s Witness Statement and/or Statement of Defence did he state that the statement complained of is true because he has personal knowledge of same.” Again, in respect of Exhibit 4 (same as Exhibit 3), Respondent’s counsel quizzed the Appellant at pages 185-186 of the ROA as follows: “Q: Let’s go to Exhibit, I suggest to you that there is nowhere in Exhibit 3 that Seidu Yakubu aka Mba is mentioned. Nowhere in Exhibit 3. A: That is correct but the same Exhibit 3 at page 3, paragraph 6 quotes the Regional Police Commander who spoke to Graphic after the incident occurred DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 28 as saying that Plaintiff was “accompanied by some of his boys when that incident happened.” And My Lord, the person who suffered those attacks at the hands of Plaintiff’s boys has testified before this Court that Seidu was part of those boys who attacked him. Q: … I suggest to you that reference to boys in Exhibit 3 does not in any way, shape or form refer to Seidu Yakubu. A: I disagree with counsel’s suggestion because the eyewitness and victim of the said incident has identified Seidu as part of those boys who attacked him as contained in Exhibit 3?” (Emphasis mine) Besides the questions which counsel for the Respondent put to Mafius (DWI) under cross-examination would have carried some weight if the police investigator of that incident or the journalist who carried the story were subpoenaed by the Respondent to impeach Exhibit 4 instead of attacking DWI’s credibility in respect of his identity and/or misspelling of his name and the inconsistency with his place of residence. DW1 did not author Exhibit 4. He only tendered documentary evidence in the form of an online news report, which the court can take judicial notice of and draw its own inferences in relation to the case at hand. The cross-examination which Respondent’s counsel sought to undertake in his bid to discredit his evidence did not advance the Appellant’s case in any way. He testified as the person who was attac ked and tendered the publication of the reportage on his attack. Nonetheless, the learned trial judge, having concluded that paragraph 8 of the Appellant Statement of Defence failed to show that both the defence of fair comment and justification (truth) had been pleaded, gave no consideration or weight to the testimony of DWI and his Exhibit 4. At page 334 of the ROA, the judge stated: “The Court’s initial impression about DW1 was to be a witness of truth but his answers during cross examination just at the initial stage showed that DWI was DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 29 not consistent. He gave a sympathetic account of an attack on him, but if the witness is not consistent with his own personal information, then I wonder how a court of law could rely on his evidence.” The learned trial judge therefore erroneously found at page 337 of the ROA as follows: “… The issues about the DW-1 residents and how he knew the Plaintiff are straightforward issues that one does not expect the DW1 to go round in circus. The evidence of an unreliable witness cannot be the basis for the resolution of issues before the Court. It was not the case that DW1 was guessing about the situation of Sipe but was emphatic that he got to know the Plaintiff because he lives at Sipe which is in the Plaintiff’s Constituency when in reality, same is not the case. The Court does not believe the evidence of DWI and would not attach any value to same.” With respect to the defence of fair comment, the courts have over the years guided the requirements and limits of the fair comment defence, to wit, the comment must be an expression of opinion, not a statement of fact, the opinion must be based on true facts which are either stated or sufficiently referred to in the publication, the subject matter must be one of public interest and the opinion must be honestly held and not actuated by malice. As indicated above, the defence cannot hold if a defendant cannot prove the factual basis of the statement made. Once there is a factual basis for the statement made, opinion is free. At page 59 of the ROA, the Appellant stated in his paragraph 10 that: “I did not make the address with malice and same was also not intended to, and DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 30 actually has not, reduced the plaintiff in the estimation of right-thinking members of society, and neither has the statement exposed any of the prominent NPP members who were mentioned to ridicule, hatred or contempt.” My Lords, counsel for the Respondent proceeded to prove the malice observed in the Appellant’s conduct by referring the court to paragraphs 4, 5, and 6 of page one and paragraphs 1, 2, and 3 of page 2 of the Appellant’s Exhibit 1, which is the full Press Statement and opined at page 305 of the ROA that the impugned statement was aimed at settling political scores. He submitted thus: “In fact, the Defendant at paragraph 9 of his Witness Statement puts this matter beyond doubt when he unequivocally stated as follows: ‘The press statement and as a whole was to exonerate the national chairman of the NDC, who had been accused by the NPP in relation to the kidnapping of the Canadian girls, and to further show that the suspects are affiliates of the NPP. In so doing, I had to establish the ties of the suspects with the NPP and therefore mentioned that, based on the information gathered from the Plaintiff’s own constituency and other eyewitnesses, it was evident that the said Seidu was a personal bodyguard and an errand boy for some known and prominent members of the NPP including the Plaintiff.’” The trial judge also had the following to say at page 327 of his judgment: “It should be noted that at the time the Defendant found these words to describe Seidu Mba he had not pleaded guilty to any such offence of kidnapping (sic) convicted any such offence. what it means is that the process for which the facts were to go through to establish whether Seidu Mba was a kidnapper of the Canadian girls had not started. In the final analysis the said Seidu Mba was even DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 31 discharged and was not prosecuted for any offence of kidnapping. So the question is, on what basis was the Defendant using all those words to describe Seidu Mba as hoodlum, a thug, a criminal and bandit. The police who arrested Seidu Mba and the others only referred to them as suspects. For referring to the said Seidu Mba and others as criminal, hoodlums, bundits and thugs before associating Seidu Mba with the Plaintiff, the conclusion one can draw is that all that the Defendant set out to do by associating Seidu Mba with the Plaintiff was to defame the Plaintiff and actually defamed the Plaintiff.” The above finding by the learned trial judge was in respect of the Respondent’s own Exhibit “M” Series which were copies of Court Notes and news report on the subject produced to show that the said Seidu Yakubu Mba, who at the time of the press conference had been arrested along with some other persons and was standing trial for the alleged offence of kidnapping, had been discharged together with three others by the Criminal Division of the High Court Accra, after the Attorney-General at the time had informed the court of its decision to substitute the charge sheet with a new one following its own investigations into the matter. It bears noting that when the Respondent’s attorney , who under cross- examination claimed that he knew Seidu Yakubu very well was quizzed regarding Seidu Yakubu’s criminal conduct at page 150 of the ROA, he answered in the negative. See page 152 of the ROA: “Q: From your knowledge of Seidu within Kumasi and like you said Asante Kotoko Football activities, would you describe him as a person of criminal conduct and character? A: To the best of my knowledge, No.” The arrested suspects in Exhibit “M” Series, particularly Seidu Mba, were never DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 32 acquitted and discharged after trial. Discharging an accused person to substitute the charge sheet does not suggest that the person was found blameless and acquitted on the merits of the case. It is for the right-thinking members of society who possess all the knowledge and context to draw their own conclusions, which ultimately will impact either positively or negatively on the Respondent’s character and reputation. My Lords, granted that the impugned publication was actuated by the malice demonstrated above, did it harm the Respondent’s reputation? Respectfully, I will now turn my attention to analyse whether the learned trial judge discharged the duty imposed on the court to determine whether the statement complained of was capable of a defamatory meaning and whether, factually, they were defamatory considering all the circumstances. Did the Respondent in this case discharge the burden of proof relative to all the elements needed to establish that the statement complained of is defamatory? My Lords, the first two elements of defamation require the court to decide whether there was publication by the defendant and whether the publication concerned the plaintiff. In the case before us, there is no argument that there was publication of the statement complained of by the Appellant concerning the Respondent herein, given that he was specifically named in the said publication. As noted supra, the extent of publication is one of the indices for establishing malice. In respect of the impugned statement, the Respondent’s attorney averred at page 82 of the ROA that “ the aforementioned false and malicious words/statement, within the context so stated, were published and given extensive coverage in the traditional media as well as through highly frequented online portals and through various discussions on radio and television.” The above DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 33 statement was made to show the extent to which the impugned was given prominence, thereby damaging the Respondent’s reputation. However, a review of the Respondent’s Exhibit “N” series, which was tendered in support, revealed that the Respondent was referenced once. The said Exhibit had a Ghana web publication with the caption: “Canadian girls kidnap: Sammy Gyamfi is a blockhead; I won’t sue him – Wontumi” (one of the named persons in the alleged defamatory statement), and the alleged defamation statement was referenced in the story. Another publication with the heading “Arrest of ‘NPP’ kidnappers has vindicated Ofosu Ampofo- Sammy Gyamfi”, the story gives the full details of the statement made at the press conference, and another Ghana web publication captioned “Seidu links: Forget it! I won’t apologise - Sammy Gyamfi tells NAPO, with the alleged defamatory statement again referenced in the story. My Lords, it is my opinion that the Respondent discharged the burden of proof in respect of the first two (2) elements of defamation and the learned trial judge came to the right findings. Nonetheless, the publication was not given extensive coverage per the Respondent’s own Exhibit “N” series. In the alleged extensive coverage, the Respondent was referenced only once. See section 11 (4) and 12 of NRCD 323 and the case of Effisa v. Ansah [1996-97] SCGLR 943. A plaintiff generally bears the burden of persuasion for the facts they assert and must lead credible and admissible evidence to establish every issue asserted. See also Ackah v. Pergah Transport Ltd & Others [2010] SCGLR 728. Proof on the preponderance or balance of probabilities, which remains the standard of proof in all civil cases, is undeniably far lower than the criminal standard of proof beyond a reasonable doubt. Nonetheless, a party that bears the primary burden of proof must discharge their minimum obligation in all material respects to enable a prudent person to conclude from the objective facts and the totality of circumstances to avoid an adverse ruling. DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 34 Having satisfied the first two elements, we will now examine whether the Respondent satisfied the last two elements of defamation, to wit, whether the publication was capable of a defamatory meaning, first, in its natural and ordinary sense. Alternatively, or in addition to the first, whether one can gather from the facts and/or circumstances surrounding the publication that it was defamatory of the Respondent. Is the statement capable of a defamatory meaning? Professor Kofi Kumado, the learned author in his book (supra), chapter 27, page 238, proffers four (4) English common law tests for establishing whether words or statements are capable of a defamatory meaning. First, the statement must substantially affect adversely the attitude of other people towards a person. See Simpson v. MGN & Anor (2015) EWHC 77 (QB). Second, if the words or statement cause a person to be shunned by others, or it renders a person ridiculous or tend to hinder mankind from associating or having intercourse with him, it is actionable. See Youssoupoff v. Metro-Goldwyn—Mayer Pictures Ltd (supra). Third, if the words or statement made damages a person in his professional, business office or trade. Tournier v. National Provincial and Union Bank of England [1924] 1 K.B. 461 Fourth, whether the words or statement tend to lower the plaintiff in the estimation of right-thinking members of the society generally. See Sim v. Stretch [1936] 2 All E.R. 1237. The author postulates that the fourth test represents the recent attempts to paraphrase the law and provide one criterion, to wit, “the opinion of right- thinking members of society.” He further argues that no single test is sufficient; thus, a publication must pass the four tests to conclude that it is not capable of a defamatory meaning. My Lords, it is my opinion that the statement, particularly the words “errand boy” when construed in its fair and natural sense as ordinary people will understand, admits of no defamatory meaning. The inference that the phrase has a defamatory DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 35 meaning is not evident. Being an “errand boy” of someone is not defamatory per se. The learned trial judge made the right finding in respect of this when he noted at page 323 of the ROA that: “After all, an errand boy is a person whose job is to run errands for important people. He is in a position of a messenger.” As Lord Devlin pronounced in the case of Daily Telegraph v. Associated Newspapers Ltd [1964] AC 234 at 280: “the other respect is that the natural and ordinary meaning of words for the purposes of defamation is not their natural and ordinary meaning for other purposes of the law. There must be added to the implications which a court is prepared to make as a matter o f construction all such insinuations and innuendoes as could reasonably be read into them by the ordinary man.” Considering the above, the Respondent pleaded an innuendo. That is to say, the published words appear innocent on their face but become defamatory to people who possess special extrinsic knowledge of the context or circumstances surrounding the publication. In accordance with Order 57 Rule 3 (1) of the High Court Civil Procedure Rules 2004 (CI 47), the Respondent gave the particulars of facts and matters on which he relied in support of the sense in which he understood the publication. Professor Kofi Kumado, the learned author in his book (supra), chapter 27 page 241, explains an innuendo as follows: “An innuendo is a defamatory imputation whereby extrinsic facts, known to the reader or listener, import into the words spoken or the statement some secondary meaning, in addition to or alteration of their ordinary meaning” Benin JSC also explained in the case of Owusu-Domena v. Amoah (supra) at page 804: DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 36 “In the legal sense, innuendo will arise only where the alleged defamatory matter depends upon facts and/or circumstances that are not within general knowledge but are known to persons to whom the words were published.” The Respondent must therefore prove such facts and adduce evidence in support of the suggested innuendo as one which any reasonable man would draw. After setting out the publication in paragraph 14 of his amended Statement of Claim, the Respondent pleaded the innuendo to reiterate what he understood the publication to mean under paragraph 19 (see pages 16-17 of the Record of Appeal) as follows: “The Plaintiff avers that within the painstaking context created and advanced by the Defendant in the delivery of the aforesaid press statement at the aforesaid press conference, the aforesaid false and malicious words/statement complained of meant and were understood to mean the following: a. That the Plaintiff is associated with thugs and/ or criminals who engage in heinous crimes; b. That the Plaintiff condones thuggery and /or criminals and is a beneficiary of such activities. c. That the Plaintiff is not a law-abiding citizen of Ghana; d. That the Plaintiff has no regard for the high offices he occupies as Minister of Education and a Member of Parliament, to the extent that he engages and works with thugs and/or criminals; e. That the Plaintiff takes the offices he occupies so lightly that he engages all manner of persons, including thugs and/or criminals, to work for him.” The Appellant denied all the material averments of the Respondent in his Statement of Defence. In respect of the above, he stated that the meanings DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 37 ascribed to the statement complained of w ere far-fetched, unreasonable, contextually and semantically inaccurate, but only interpreted to suit the Respondent. As reiterated above, the intention of the defendant matters not. What is critical is what the words or statement can reasonably be understood by right- thinking members of society as saying. In the case of Jeynes v. News Magazines Limited [2008] EWCA Civ. 130, [14], the court charged judges to also consider the impression the words or statement complained of have made on them in determining what impact it would have made on a hypothetical reasonable person. The Appellant further contended in response that no malicious or defamatory statement was made about the Respondent and therefore, the Respondent cannot be said to have suffered any damage to his character and reputation. He submitted that the Respondent has not lost his current position or any other position previously held on account of the alleged defamatory statement. My Lords, in the case before us, in proof of the last element, which is the interpretation of the published words to determine whether they are actually defamatory, the Respondent argues that within the context created and advanced by the Appellant, to wit, the kidnapping of the Canadian students and the arrest of the “errand boy” of the Respondent, the Appellant statement has lowered him in the estimation of right-thinking members of the society generally. A court is therefore duty-bound to determine whether the seemingly innocent words become defamatory, considering the specific extrinsic facts known to the audience in this case. Put differently, whether the words, when combined with the pleaded extrinsic facts, are capable of bearing the defamatory meaning the Respondent suggests. If they are not, the innuendo claim is dismissed. In this case, the Respondent has submitted that when the offending publication is DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 38 contextualized within the kidnapping of the Canadian girls or students, the words are capable of bearing the defamatory meaning. In assessing the context, the pungent question is whether the addressees of the offending publication, the right- thinking members of society, understood the offending publication in the defamatory way suggested by the Respondent. It is important to stress that in this case, the entire press statement was read out and published, hence the full context was given. What then would a reasonable person conversant with the extrinsic facts make of the impugned publication? This is a matter of evidence. See Owusu-Domena v. Amoah (supra) at page 804. By virtue of sections 10, 11 and 14 of the Evidence Act, 1975 (NRCD 323), the mantle of producing evidence as well as the burden of persuasion falls on the Respondent to prove that at least one person who heard or read the offending publication was aware of the underlying facts and logically interpreted it as derogatory, thereby damaging the Respondent’s reputation. Reputational proof is thus critical in defamation suits. It is the only way the negative impact of the impugned statement can be verified or ascertained. It is trite that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind can conclude that the existence of a fact is more reasonable than its non-existence. The position of the law, as was enunciated in the case of Abbey and Others v. Antwi [2010] SCGLR 17, at page 27, is that: “The standard of proof of allegations in civil cases is proof by preponderance of probabilities. It is only when crime is pleaded or raised in the evidence that the allegation sought to be proved must be proved beyond reasonable doubt.” Section 12 of NRCD 323 establishes the standard of proof in civil cases, which is proof by a preponderance of probabilities. Once a plaintiff can adduce evidence to meet his primary burden, the burden shifts to a defendant to disprove the DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 39 assertions made against him to raise a reasonable doubt concerning the existence of the claims by the plaintiff. The Respondent therefore bore the burden of establishing that the addressees of the impugned publication (at least one person) who possessed extrinsic knowledge of the context, found the publication defamatory. Failing this, the innuendo claim must fail and be dismissed. To harm one’s reputation, the right-thinking members of society must process the statement complained of as derogatory; if they knew but found it harmless, a claimant’s reputation is not bruised. My Lords, in the case before us, the Respondent produced copious pieces of evidence in respect of his stature, position, and pedigree before the defamation statement was made in Ghana and abroad. However, on the direct issue of loss of reputation, the Respondent submitted without more that as a result of the false, malicious and defamatory statement made by the Appellant, his character and reputation have been seriously damaged. If there is no nexus between what was and what is, on what basis can one establish that a person’s reputation has been badly wounded? The Respondent’s lawful attorney was his only witness. It was his testimony at paragraphs 23, 24, 26, 29 and 30 of his Witness Statement as follows: “the publication within that context was deliberately and maliciously calculated to damage his reputation in Ghana and abroad and to expose him to ridicule and hatred by an actively following general public ... The kidnapping of the two Canadian girls was an issue of public interest, not just for Ghana but for Canada and indeed the international community at large … As such, the attempt by the Defendant to associate Seidu Mba – a person the Defendant had emphatically described as the ringleader of a syndicate of DR. MATTHEW OPOKU PREMPEH V. SAMUEL GYAMFI) - JUDGMENT pg. 40 criminals/thugs behind the kidnapping of the Canadian girls (Their emphasis) - with the Plaintiff as the Plaintiff’s errand boy was deliberately aimed at instigating public anger and hatred at the Plaintiff’s person. The aforesaid false and malicious statement by the Defendant, within the context he created, has injured the Plaintiff’s image and brought his hard - earned reputation into ridicule and reproach.” The Defendant published the said statement with the specific intent of reducing the Plaintiff and damaging his reputation in the estimation of right -thinking persons reading or hearing about it in Ghana and beyond.” (See pages 82 -83 of the ROA) Benin JSC pronounced Owusu-Domena v. Amoah (supra) at page 805 that: “The issue of reputation is one of fact. It is the summation of facts, acts, events, conduct, etc from which the esteem in which a person is held by other persons is adjudged. Thus, unless the facts speak for themselves from which a negative effect on a person’s reputation may be inferred, the plaintiff must lead evidence to prove the nature or kind of reputation he had prior to the publication and in what way it has been affected by the publication.” The Respondent did not adduce any evidence to substantiate the harm done to his position, profession, and standing in society with respect to the innuendo pleaded. The publication did not adversely impact the Respondent in the 2020 Parliamentary Elections, as the constituents in Manhyia South still doted on him and returned him to Parliament House. At pages 156-157 of the ROA, this is what transpired during the cross-examination of the Respondent’s attorney: