The High Court in Accra has dismissed the suit filed by former Minister for Gender, Children and Social, Nana Oye Bampoe Addo against her former husband, Tony Lithur, for no reasonable cause of action.
Nana Oye Bampoe Addo per the suit filed on April 25, 2024, was seeking some $1.5 million damages against the former husband following a divorce action.
Justice Rev. Joseph Owusu-Adu Agyemang while ruling on the matter said, no action of defamation can be found in the allegations made against the veteran legal practitioner.
The Court also said, no court should allow parties to open this Pandora’s box in a suit of that nature and that, the petition for divorce and it reply are judicial documents.
EIB Network’s Legal Affairs Correspondent, Murtala Inusah, who was in Court reports that a cost of GHc5, 000 was awarded against Nana Oye Bampoe Addo after lawyers of Tony Lithur had requested for GHc20, 000.
Nana Oye Lithur’s lawyers offered to pay GHc1, 000.
*Tony Lithur’s argument*
Agyenim Agyei Boateng, Counsel for Tony Lithur, who was holding brief for Osafo Buabeng said, their application was premised on “Order 11 rule 18(1)(a)(b)(d) of the high court civil procedure rules 2004 (CI47).
“We have an application before you this morning (Monday, Amy 27, 2014) for an order to strike out Plaintiff’s (Nana Oye Bampoe Addo’s) pleading and to dismiss Plaintiff’s suit against the Defendant (Tony Lithur),” Counsel moved.
He said, the contention of Mr. Tony Lithur is that the Plaintiff’s writ of summons and statement of claim filed on April 25, 2024, “does not disclose any reasonable cause of action against the defendant.”
He also argued that the pleadings are frivolous, vexatious and an abuse of the Court process.
“…The Plaintiff has filed an action for defamation but clearly on the face of her pleadings the entirety of the action is premised on facts contained or averred to in the divorce petition filed by the defendant (Tony Lithur) herein,” he argued.
Counsel submitted that, the Plaintiff Respondent (Nana Oye) makes copious reference to the petition and to the reply filed by the defendant applicant (Tony Lithur).
“My lord, I refer the court to paragraph 6-28 of the Plaintiff Statement of Case all of which refer or relate to matters contained in the defendant’s petition and reply.
“That being the case, the law is clear that an action for libel or any action for defamation does not lie where the basis of the action is matters contained in judicial processes and procedures,” he argued.
*Halsbury Law of England principles*
While referring to Halsbury Laws of England (4th edition) page 47 paragraph 97, counsel said, no action lies whether against judges, counsel, jury, witnesses or parties for words spoken in the ordinary cause of any proceedings before any court or judicial tribunal recognized by law.
“The privilege extends to documents properly used and regularly prepared for use in the proceedings,” adding that “Advocates, judges and jurors are covered by this case.”
He further submitted that, “what the authors are telling us which would be of a persuasive authority to this court is that the content of judicial processes are covers by privilege and therefore a party is immune for an action in a defamation contained in those judicial processes.”
“The point being made before you today(May 27) is that to the extent that the whole of plaintiffs action is grounded on matters contained in judicial proceedings and processes, the law does not support the action and in fact there is no action in law against the defendant applicant,” Counsel submitted.
“It is apparent without recourse to anything more than the Plaintiff own Statement of Claims that the instant action seeks to hold liable the Defendant-Applicant on matters which are privileged and for which an action cannot lie in law, the instance suit therefore discloses no reasonable cause of action under the law against the defendant.
“It is the very definition of an abuse of the courts process,” Counsel submitted.
*Application Incompetent & defective*
Counsel for the Plaintiff (Respondent) Edward Danquah while opposing to the application submitted that, the application “is both procedural and substantive” defective.
“This application is incompetent, defective and not properly before the court,” Counsel for Nana Oye Bampoe Addo stated.
He submitted that, “this is an application that sought to strike out pleadings.”
He added that, “the position of law is that the notice of motion invoking the jurisdiction of the court must clearly indicate which pleadings are sought to be struck out before the court is invited to either dismiss, stay or enter judgement as the case may be.”
While pointing to some decided cases, said on the face of “the application before this court no pleadings have been attacked to be strike out. Not even a single one.”
Counsel argued that, in so far as this is missing on the face of the motion and on authority of the case cited above, “we state that the courts jurisdiction has not been properly invoked. We pray that the application be strike out in-lumini on this ground alone.”
*Reasonable caution of action*
Counsel said, “It is our submission that the suit as filed by the plaintiff disclosed a reasonable cause of action.”
While explaining the definition of reasonable cause of action , counsel referred that Court to case titled “Anpratwm manufactureing limited vs divestiture implemation committee reported in 2019.”
“We submit that even though generally at common law judicial proceedings are absolutely privileged, there are exceptions to it that absolute privilege cannot be upheld,” Counsel submitted.
He pointed that, “one of this instances are where the matters are taken out from judicial proceedings.”
Counsel argued that, the position of the law is that, “when the matters are taken out of the judicial proceedings, they are not covered by absolute privilege.”
*Publication of divorce statements*
Counsel said, a cursory look at “our statement of pleadings, it is not about the publication of the matter in the divorce proceedings but it is about the subsequent publication in the media.
“Our complaint is not about the publication of the divorce petition in the media per se, it is about the publication and dissemination on the media and internet,” Counsel submitted.
Counsel further submitted that, “Our submission is that in so far as the defendant cause that publication outside the court proceedings, it is not caught by absolute privilege and therefore actionable, it discloses reasonable cause of action.”
*2nd Submission*
For her second submission, Counsel said on the substance of the application is that, “in the face of the 1992 Constitution any notion on common law privilege, that seeks to absolutely protect or make new any willful deliberate and malicious conduct, which denigrates a person, from action by that person to vindicate their rights, is inconsistent with and contravention of article 15(1)(2)(b).”
“A person cannot in the face of these constitutional provisions be allowed to willfully and deliberately and maliciously defame someone and to affect their dignity and reputation in the face of right thinking members in the society and seek to shield themselves under a notion of absolute privilege propounded in the 17th century,” Counsel submitted.
“We submit that such a notion of absolute privilege will be unconstitutional and to that extent null and void.
“We submit that the Plaintiff has adequately by the Statement of Claim demonstrated the existence of reasonable cause of action which this court must proceed to hear and determine.
“It is our submission that the two decisions of the two coordinates cited to you is of no binding effect and at best is of persuasive value
Counsel said, “in the Shantel Kudjawu case is not binding authority and it is not in accord with the laid down principles concerning the matters as arisen there and this court should not be led to fall into the same pit.”
“We submit that the instance application as has been shown here, is procedurally incompetent and therefore not properly before this court.
“We also state that it is substantively of no value and we prayed that the instance application be dismissed for the suit to be heard,” Counsel submitted.
*Background*
On April 25, 2024, the former Minister for Gender, Children and Social Protection, Nana Oye Bampoe Addo initiated the legal action against her former husband Tony Lithur for libel.
She was demanding the action filed on April 24, 2024, damages in a total sum of $1.5 million dollars.
According to Nana Oye Bampoe, her reputations has been injured by the former husband who had filed an action seeking divorce.
The two were customarily married on April 14, 1991, and the marriage was converted into ordinance marriage by the parties in January 1998 and on May 2, 2018.
Mr Lithur (defendant) then filed a petition for divorce against Nana Oye (plaintiff), which was part heard and yet to be concluded.
Nana Oye said in the divorce petition the defendant made false averments and cause the defamatory words to be published.
She is however seeking the following reliefs from the former husband.
“General damages of the Ghana Cedi equivalent forex bureau buying equivalent of USD500,000.00 (five hundred thousand dollars) for libel contained In Divorce Petition filed on 2nd May, 2018 and subsequent pleadings filed during the said Divorce Petition contained in paragraphs 8 and 9 of this Statement of Claim as follows:
“Exemplary damages of the Ghana Cedi forex buying equivalent of $1,000,000.00 (one million dollars) for libel particulars of which are contained in relief (a).
“A perpetual injunction restraining the Defendant jointly and severally either by himself and or his assign(s) from further making any averments or publishing or causing to be published, the said defamatory words or similar words.
“A retraction and apology to be published on social media including on Defendant’s facebook wall, the website of Lithurbrew & Company, the twitter and Instagram handles of Defendant, and all his social media handles and on the website of the Ghanaweb together with the website of Joyfm, Peacefm and Citi fm.)
Source: Kasapafmonline.com/Murtala Inusah
