You can’t appeal your case based on ‘harsh obiter dicta’ - Ex law school ‘don’ advises Anas

A former Director of the Ghana Law School has said the judge’s harsh comments against Anas Aremeyaw Anas cannot be grounds for appeal.

The Law School don added that most of the persons passing comments about the Anas Vs Kennedy Agyapong case did so after reading news headlines instead of the judgment.

Maxwell Opoku Agyemang, the former Law School don also recommended to law students to get a copy of the judgment in the Anas Vs Kennedy Agyapong to learn about defamation.

According to Maxwell Opoku Agyemang, almost all the known legal authorities and aspects of defamation were cited in the case.

Mr. Opoku Agyemang however expressed reservation about “some of the opinion expressed in the judgement as too broad and harsh” but said it is “considered to be obiter dicta” and can therefore not form part of the grounds of appeal.

“In my humble view, the grounds of appeal should be on the error or otherwise in weighing the evidence,” he wrote.

Maxwell Opoku Agyemang asked readers to “pardon all errors” in this off-the-cuff write-up” on the case.

Read his Full judgment

Folks, it has taken some time to finish reading the decision of Eric Baah JA in the case of Anas v Ken Agyapong. I have also paid attention to post judgement comments from across the broad spectrum of society. My first reaction is that most people including so-called legal luminaries and commentators react to snippets and headlines rather than the full gamut of judgements. I can’t blame them. Sometimes reading 65 or more pages of a court decision may be drudgery indeed.

I wish to advise law of torts students to get a copy of the judgement as it may help them in their study of the law on defamation. It seems references were made to all the known authorities in that area. In fact, his discussion on defamation brought me nostalgic memories of when I used to teach Law of Torts at the Ghana School of Law from 1998 to 2005. Now on the substantive case of defamation, the plaintiff has a burden to prove the following:

that there was a publication; that the publication was referrable to the plaintiff and that the publication was defamatory in the sense that it brings the person of the plaintiff into disrepute or opprobrium. If the plaintiff successfully discharges this burden, then unless the defendant adduced a reasonable defence, then he may be held liable.

The defences include truth, justification and fair comment. The common thread underlying the defences of truth and justification is that defamation is about injuring one’s reputation. Therefore, if one has no reputation, then same cannot be injured.

It seems to me upon reading the judgement that the plaintiff in this case positively proved publication, established the defamatory nature of the words used in the said publication. On the issue as to whether the publication was referrable to the plaintiff, there were lots of back and forth as deduced from the evidence in chief and cross-examination.

Mind you my dear reader that in this case, the plaintiff did not show his identity to the court. In fact, he was represented by two surrogates so as we speak the judge doesn’t know the true identity of the person defamed. Notwithstanding inconsistencies in the evidence of plaintiff regarding the identity of the plaintiff, the judge relied rightly on innuendos to determine that the publications were referrable to the plaintiff.

The plaintiff haven established the ingredients of defamation positively cast a duty on defendant to disprove these positive averments. It seems to me that the crux of the decision rested on whether the publications were defamatory and if defamatory, whether the defendant established to the satisfaction of the court reasonable defences. It seems the court accepted the defences of the defendant to the effect that the publications may carry in their belly defamatory statements but was of the view that the plaintiff has no reputation for the defendant to bring into disrepute.

The judge in coming to that conclusion referred to the payment of $5000 to a prosecutor, the payment of $75000 to a former Director of EOCO and the statement on record about the plaintiff being bought with $100000. All these were allowed to go into the court records and the trial judge justifiably relied on them in determining the issue of reputation.

Even though in my humble view, I consider some of the opinions expressed in the judgement as too broad and harsh, in my considered opinion those sentiments will continue to be obiter dicta and can therefore not form part of the grounds of appeal. In my humble view, the grounds of appeal should be on the error or otherwise in weighing the evidence.

Certainly, judicial errors are corrected on proper grounds of appeal but not on public insults. In this vein, I will plead with the surrogates of the plaintiff not to resurrect the fact that an interim judge was asked to continue and conclude the case. If they had serious reservations, they should have used the known processes to have fought it to the end.

Maybe they were overconfident that they had an unimpeachable case. In this light, I always doff my hat to the lawyers of Dr. Opuni and Agongo who have used the process to fight every step of the way to protect their clients.

Luckily, the decision of the High Court is not final and the plaintiff instead of issuing sentimental public statements should rather dissect the judgement and identify the relevant grounds for appeal albeit knowing that he may either win or lose the appeal.