Mumuni should spare the President any more blushes - Ace Ankomah

So it happened that Alhaji Mohammed Mumuni went to court and lost. So what? We all lose in court. He sued a newspaper, the Daily Guide, which had carried a story that had quoted and relied upon an Interim Audit Report that had made adverse findings against him, for defamation. It was not as if the Audit Report was a farce. But it was “interim”, meaning that it was not final or conclusive.

These were the comment of Mr Ace Ankomah, a legal practitioner, who grieved with with news publication, media organisations and trade unionists, publishing and running near-rabid commentaries on the basis of interim audit reports, as if they are either written in indelible ink or cast in stone. “I think that any publication of or commentary on an interim audit report must contain the necessary caveat that every line item and 'finding' can be reversed when persons affected by the interim report are able to provide answers to questions or queries contained in the report. Such reports are therefore unreliable 'works in progress' and we must all exercise great caution in publishing and commenting on them.

Mr Ace Ankomah agitated whether the media can wait for Final Audit Reports? “Can auditors stop leaking interim audit reports”? “The words 'audio', 'aud', 'audit' and 'audi', have the same root and mean hearing or listening. It is from these words that the principle of 'audi alteram partem' is derived, namely “hear the other side” and that “there are two [and probably more] sides to every question.” This is a plea for reason and fairness in discussions and inquiries, whether judicial in nature or not. Audits can therefore not be complete unless the auditors have afforded affected persons the full opportunity to answer or respond to any queries raised; and have taken those answers into consideration in arriving at final conclusions.”

He said he thinks that Mumuni would still have had a cause of action against Daily Guide if the paper had presented an interim report as a final report. “I believe that a person who seeks to publish 'findings' of interim reports has a concomitant legal duty to state the caveat mentioned above. I believe that a failure to state the caveat in any publication of an interim report, and/or any attempt that pass interim 'findings' off as final, would be actionable as defamatory”.

But as things turned out, after Mumuni had sued the Daily Guide, he submitted written response to the queries raised by the auditors in the interim report that was published by Daily Guide. However, the auditors were not satisfied with his answers and subsequently issued a final report that endorsed the findings contained in the interim report. “I can only imagine the glee with which Daily Guide's lawyers tendered the final report in evidence”.

He said, once Mumuni sued, Daily Guide raised every possible defence to the action in defamation, and it is important to understand what is defamation, what those defences are and why they succeeded. According to him there is no statutory or rigidly accepted definition of 'defamation' and our courts have generally accepted the test of Lord Atkin in the 1936 case of Sim v. Stretch as follows: “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”

But who are “right thinking members of society”? By this phrase the court seeks to identify those people who can take a balanced view of what they hear and read, do not always think the worst but are quite capable of seeing a derogatory implication in the words. Thus even though a statement is false and even if it is likely to harm reputation, if “right thinking members of society” do not believe that the statement is true, then there has been no harm done to a Plaintiff's reputation.

Thus even if the words damage a person's reputation in the eyes of a section of society, they are not defamatory unless they lower that person's reputation in the eyes of the society's “right thinking members.” The standard here is objective, i.e. what would right-thinking members of society think?

It is for this reason that a statement that is an insult or mere vulgar abuse is not defamatory. In the same light, words uttered in the heat of anger are not considered defamatory at common law. This is because such words do not convey a defamatory meaning to right thinking members of society who may hear them: simple abuse is unlikely to cause real injury to reputation. Many lawyers and students of the law will remember the famously naughty Ghanaian case of Wankyiwaa v. Wereduwaa, where the court took slight umbrage at the lawyers for being shy of reading out the alleged defamatory statement, and stated emphatically that “no court is contaminated by bad language”. The court held that words spoken which constitute mere vituperation are not redressible at common law, although at customary law, abuse or vituperation per se is a civil wrong, redressible by a pecuniary award, he said.

“But I digress. A defamation action is an appeal to the opinion of society's right thinking members. A plaintiff in effect says that he is in tune or in touch with right thinking members of society and knows that he has lost his reputation among that class of people on account of a defendant's publication. That is a plaintiff's test or standard to meet in a defamation action. Thus a first line of 'defence' for any defendant in a defamation action would be to argue that the matter published is not defamatory at all. If a defendant is able to establish that, then the action must fail.”

But there are the common law defences to a defamation action, so that although a plaintiff may be able to meet the Sim v. Stretch standard, he would still not succeed if any of the defences are available to a defendant.

A matter is absolutely privileged if it was communicated in the course of some executive, legislative or judicial process, among others that may be provided by statute.

But we speak of qualified privilege where the person who makes the communication complained of, has a legal, social, or moral interest or duty, to make it to the person to whom it is made; and the person to whom it is so made has a corresponding interest or duty to receive it. It is my respectful view that with particular reference to the media, this defence, must be read together with Chapter 12 of the Constitution, particularly Article 162 which enjoins the media to “uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.”

The defence of fair comment must show that the matter published was a comment, fair, and based on facts that are true. Thus if the facts upon which the comment purports to be made do not exist or are untrue, the foundation of the plea fails.

The last defence is called the plea of justification, where the defendant must prove the correctness or truthfulness of the communication or be able to justify the precise imputation complained of.

In the Mumuni case, Daily Guide raised all of the last 3 defences mentioned above, and succeeded on each of them. The judge was of the view that one word run through each of the defences: 'truth'. What was required, then, was for Daily Guide to establish in its defence that what it had published was the 'truth'. And that would not have been difficult because by the time the trial was over, the final audit report was ready, and it did not have to have the caveats that had to go with the interim report. Thus 'truth' won the day, in that what the court had before it was an unchallenged final audit report, which confirmed the findings contained in the interim report, after Mumuni had been afforded the opportunity to respond to the contents of the interim report. The AUDIT was complete.

So, here we have a foreign minister who went to court to say a publication had lowered him (and his reputation) in the estimation of “right thinking members of society.” He was right. The audit reports (both interim and final) did not have a lot of nice things to say about Mumuni. Every right thinking member of society who reads the reports might not think very highly of Mumuni. But the court had an answer for him, i.e. “even if you have been lowered in the estimation of right thinking members of society, you cannot cry foul because what was published was true.” In other words Mumuni appealed to “right thinking members of society” and lost. Should he continue to serve as chief foreign diplomat over the same society? I think not, he queried.

Even if Mumuni intends to contest the judgment, which is what I think he will, it does not change the fact that even as the case undergoes slow regurgitation in the 'belly' of the judicial process, Mumuni will remain a person who has gone to court to say that a paper had lowered his reputation, and the court has agreed with him but said “Alas, it is true.” Should he continue to serve as our chief foreign diplomat? I think not.

He concluded his argument that a person caught in such a quagmire should not continue to serve in the high office of Foreign Minister. Your continued stay in that office is no longer tenable. You must save the President the painful duty of asking you to leave the office. Please resign to fight his appeal or appeals, as the case may be. If you ever obtain vindication in the Court of Appeal and/or the Supreme Court, I think that the President who once chose you as his running mate, will consider you for some high appointment, if not to the same position. But as things stand now, the right thinking members of society to whom you appealed by going to court, do not think very much of you.

“Sir, jump now. Don't push the President to push you. Right now you have just two chances of having a dignified stay in office: fat chance and no chance.