Attie and Others v Franaj Herbal and Spiritual Centre and Another (A2/45-50/24) [2024] GHADC 700 (29 November 2024)

CORAM: IN THE ASOFAN DISTRICT COURT HELD ON THE 29TH NOVEMBER, 2024 BEFORE HER WORSHIP NANCY TEIKO SEARYOH (MRS.) SITTING AS MAGISTRATE SUIT NO. A2/45-50/24 1. CHRISTIE DIADEM XONAM ATTIE 2. JANET ASAAH 3. AGNES KLU 4. ANITA AYENSUAH MAC-ARTHUR 5. MAVIS MARY OPOKU 6. FREDA AWUMEY 7. JOYCE SOWAH 8. COMFORT AMOAH 9. SALOMEY AFFUL-RHULE PLAINTIFFS VRS. 1. FRANAJ HERBAL AND SPIRITUAL CENTRE PER FRANK ADJEI KOFI 2. RITA MENSAH DEFENDANTS ---------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- JUDGEMENT Page 1 of 20 By an Amended Writ of Summons and Statement of Claim filed on the 11th September, 2023, the Plaintiffs prayed the Court for the following reliefs; a) An order for recovery of cash the sums of GH¢6,000.00, GH¢9,400.00, GH¢7,300.00, GH¢7,150.00, GH¢7,700.00, GH¢4,700.00, GH¢7,350.00, GH¢9,900.00 and GH¢6,000.00 respectively being money paid to Defendants as fees for the cure of fibroids but failed. b) Interest on the said amounts from dates amounts were paid at the prevailing bank rate until the date of final payment. c) Damages of GH¢5,000.00, GH¢2,000.00, GH¢5,000.00, GH¢5,000.00, GH¢5,000.00, GH¢5,000.00, GH¢5,000.00 in respect of the second, fourth, fifth, sixth, seventh, eighth, and ninth Plaintiffs respectively for vaginal infection. d) Recovery of pictures and videos taken by the Defendants. e) Damages for inhumane treatment meted out by the Defendants. f) Cost. The facts as presented by the Plaintiffs are that the first, third, sixth, seventh and ninth Plaintiffs heard the adverts of the Defendants on No. One FM, a radio station in Accra between the period of December, 2022 and February, 2023. The second, fourth, and fifth Plaintiffs heard an advert of the Defendants on Angel FM between January, and February, 2023. Whilst the fifth Plaintiff heard an advert of the Defendants on Vision One FM in March 2023. The Plaintiffs averred that the Defendants through their advertisement claimed that they could cure fibroid within seven to fourteen days and that anyone who patronized their services and still had the disease after forty days shall have her treatment cost refunded Page 2 of 20 to her. They further averred that based on these assurances from the Defendants they visited the first Defendant facility for their various treatments and were made to pay various amounts for the said treatment. They again averred that apart from the money they paid, they were all asked to bring along a crate each of malt drink and a carton each of milk. They stated that after the payment of the said amounts the second Defendants inserted a substance into their vagina after which she instructed them not to bath for the period, each of them stayed at the facility, a situation which was unknown to them before going through the ordeal of insertion with the reason that the medicine does not like water which to them was unbearable. It is their case that there were no places to sleep so they had to sleep on the floor in turns, there were also no washrooms and so they had to resort to the use of chamber pots to attend to natures call. They continued to say that as the days went by, the substance inserted in their vagina came out in an enlarged form and the second Defendant told them it was the fibroid that had come out their system. They again stated that the medication caused the entrance of their vagina to close and some of them had to go through the use of cucumber and an artificial penis to penetrate their vagina to open up the vagina by the second Defendant with the claim that without this they may suffer permanent closure to their wombs. They again averred that some of them had infections in their private parts as a result of the experiences they went through at the facility. They also said that the second Defendant was harsh on them and did not allow them to communicate with each other and that after coming out of the facility they went to do various scans to ascertain the truth or otherwise of the second Defendants claim of a cure only to realize that their fibroids still exist. After Page 3 of 20 realizing that the Defendants had deceived them, they requested for a refund of their money but the Defendants refused to do so. They said that they went to the Ofankor police station to report the matter but were advised by the police that the matter was a civil one and hence they came to the Honourable Court. They lastly prayed that the Defendants would not refund their money to them unless compelled by an order of the Honourable Court to do so. The Defendants in their Statement of Defence denied each and every averment made by the Plaintiffs and asserted that the Plaintiffs were not entitled to their claim. In their Statement of Defence, they averred that in February, 2023, when they appeared on Angel FM, the second, fourth and fifth Plaintiffs had gone through their treatments and left the Defendants facility and so it could not be correct that the said Plaintiffs heard of the facility in February 2023. They contended that there was no statement made at the radio station and at their facility to the effect that there will be a refund to anyone who patronized their services and still had the disease after forty (40) days. They again stated that throughout their two years existence it is only one Miss Sowah who at their initial stages tried to frustrate their operations and because the facility had personal relations with her, they refunded her medical bill to her. The Defendants again contended that the Plaintiffs never paid the alleged amounts as medical bills and were only exaggerating on the amount paid to the facility and challenged the Plaintiffs to produce evidence of payment to the Defendants facility. They also stated that the medications were given to the Plaintiffs who did their own insertions. They further averred that the Plaintiffs were educated or informed before they did their own insertions. Even on radio, the public was informed of the process and that the procedure can be likened to the delivery of a child hence the pains. Page 4 of 20 They stated that the facility that accommodated the Plaintiffs had three bedrooms with a hall and kitchen where the Plaintiffs did their own cooking and never slept in turns as alleged because student mattresses were provided for the period spent in the facility. There was one washroom in each of the rooms which were used by the Plaintiffs and that the chamber pots were used only to see the ailment and not used to attend natures call. They said that the Plaintiffs were fed by the Defendants whilst in the facility and no one meted out any inhumane treatment to the Plaintiffs because the facility was just the same as any residential environment and Plaintiffs were just painting them black for the Court to see them as demons. They stated that the Plaintiffs were not entitled to their claims since all their claims were an exaggeration. In their reply to the Defence, the Plaintiffs averred that the 2nd Plaintiff went to the facility in February, 2023 and left after fourteen days, the fourth Plaintiff left the facility on the 6th March, 2023 after spending nine days in the facility while the fifth Plaintiff went to the facility on the 12th February, 2023 and left on 27th February, 2023. They further averred that but for the assurances and promises made on radio and at the facility by the Defendants, the Plaintiffs would not have patronized the services of the Defendants. Indeed the Defendants promised both on radio and at the facility that should they not have their fibroids treated between seven and forty days their monies paid would be refunded to them. They again stated that the said Miss Sowah went to the facility after her treatment was unsuccessful and threatened to expose and cause the arrest of the second Defendant if her money was not refunded to her and that was how come her money was refunded to her. They also stated that they indeed paid the various sums of money and when they demanded for receipts Defendants told them that receipts can only be issued after treatment which receipts were never issued when Plaintiffs requested for same after their ordeal at the Defendant’s facility and that except for the first, third and Page 5 of 20 seventh Plaintiffs who insisted on inserting the medication themselves the rest had the medication inserted by either the second Defendant or one Kofi who the second Defendant claimed to be her husband. They stated that after their ordeal, the Defendants tried to make video recordings of them but some of them refused to be recorded since the recordings were normally used by the Defendants on radio and television. They repeated their averment that there were no places to sleep at the facility and so took turns to sleep on the floor and had to resort to the use of chamber pots which were compulsorily sold to them to be used to attend to natures call and that because of the unhealthy nature of insertions and place, some of them contracted infections in their private parts which cost them a lot of money to treat. They insisted that the facility they were treated had two bedrooms and a hall. The hall was divided and used as an office and consulting room. They insisted that the conduct and treatment meted out to them at the facility was inhumane. They finally stated that they were entitled to all their claims. On the 12th July, 2023, the first and second Plaintiffs issued a Writ of Summons and Statement of Claim against the Defendants herein. Subsequently the third, fourth, fifth and sixth Plaintiffs also issued a Writ of summons and Statement of Claim on the 14th July, 2023 against the Defendants. The Court on the 1st August, 2023 consolidated these cases. On the 29th August, 2023, the Court granted an application for joinder by the seventh, eighth and ninth Plaintiffs to be joined to the suit. After, the Plaintiffs filed an Amended Writ of Summons and Statement of Claim. This Court referred Parties to attempt settlement with the Court Connected Alternative Dispute Resolution (ADR) on two occasions but settlement broke down. At the close of pleadings the Court ordered Parties to file their witness statement for trial to commence. Parties complied with the Page 6 of 20 orders and went through full trial. All Plaintiffs testified themselves and called no witness whilst the first Defendant testified on behalf of the second Defendant. Both sides tendered exhibits in support of their case. At the close of hearing, the issues that arose for determination from the pleadings of Parties and their respective witness statements for determination by the Court are; 1. Whether or not the Defendants made promises which induced the Plaintiffs to patronize their services thus (whether there was an offer and acceptance by conduct of Parties). 2. Whether or not the Plaintiffs were cured of their fibroid disease as the Defendants promised. 3. Whether or not Plaintiffs are entitled to damages for vaginal infections and inhumane treatment meted out by the Defendants. The standard of proof required by Parties who make a civil suit is one on a balance of probabilities. Thus Parties making assertions are to adduce evidence in proof of their assertions such that the Court is convinced that the existence of the facts he or she asserts are more probable than their non-existence. See Section 11 (1) and (4) of the Evidence Act 1975 (NRCD 323). In explaining the principles relating to the duty to produce evidence, the learned jurist Maxwell Opoku Agyeman states at page 105 of his book Law of Evidence in Ghana stated thus; Page 7 of 20 “The general rule is that all facts in issue or relevant to the issue in a given case must be proved. In other words, he who avers must prove. This may be done through testimonial evidence hearsay statements, documentary evidence or production of real evidence. If in a moment of forgetfulness the claimant or prosecutor fails to prove an essential fact his opponent may well succeed on submission that there is no case to answer although the evidence was really available”. See Essoun V. Boham civil appeal No. 54/1/2014 [2014] GHASC 156 dated (21st May, 2014). See also FKA Ltd V Sarkodie [2008] GHASC 9 (27th October, 2008). I shall now proceed to examine the evidence adduced in support of the Plaintiffs case and will relate same in the context of the standard of proof I have already set out in the judgment. It is therefore important to note that the court observed some inconsistencies in the Defendants testimony which have been outlined below; The first inconsistency can be found at paragraphs ten (10) of their Statement of Defence, the Defendants stated that “the initial facility that accommodated the Plaintiffs was a three bedroom with a hall and kitchen where the Plaintiffs do their cooking…” Page 8 of 20 But in paragraph eleven of the same Statement of Defence they made a contradictory statement by stating that “… the Plaintiffs were fed by the Defendants whilst in the facility”. During cross-examination and at page 92 of the records of proceedings this is what ensued; Q: I am putting it to you that the Plaintiffs fed themselves at the facility. A: That is true, provision of food is not part of the treatment packages, patients are allowed to go out and buy food outside. Again at page 94 of the records of proceedings, this is what ensued’ Q: I put it to you that you did not feed the Plaintiffs as you claimed in paragraph eleven of your Statement of Defence. A: I fed them but as and when they needed to buy something that they wanted they went out to get it for themselves. They further continued……. Q: You have said in this Court that the Plaintiffs were asked to bring their own food which was not part of the cost of their treatment, is that not so. A: That is not so, I did not say that. What we asked them to bring was malt and milk, we cook together at the facility. The second inconsistency the Court found in the testimony of the Defendants was in relation to the profession of the second Defendant at page 86 of the records of proceedings, this is what ensued; Page 9 of 20 Q: The second Defendant is not an American trained doctor as she has always claimed in her adverts, I put it to you. A: That is true, she was not trained in America as claimed. But at pages 89-90 of the same records this is what ensued; Q: Can you kindly tell the Court the level of education of your wife prophetess Dr. Mensah. A: She has completed university. Q: Can you tell the Court the course she read at the university. A: She studied Pharmacy. Q: I am putting it to you that the so called Dr. Prophetess Rita Mensah is not a Pharmacist. A: It is not true, she pursued a pharmacy course at the university. Q: So your wife is not an American trained medical doctor as she claims on adverts but a pharmacist is that what you are saying? A: Yes, she is an American trained medical doctor. It is worthy to note that the court made an order for the first first Defendant to produce the certificates of the second Defendant in Court in order to buttress their claim of her being an American trained Doctor and a Pharmacist but they failed to comply with the orders of the court despite they being given ample time to do so. Page 10 of 20 Lastly on the issue of the procedure of how fibroid is checked at the facility. This is what ensued during cross-examination at pages 96-97 of the records of proceedings. Q: How do you check to see whether someone has fibroid or not when the person visits your facility? A: We have a scan machine we use to scan for the fibroid and also I have been practicing for a long time and due to my experience as a herbalist, I can put the patient down and tap the stomach and examine it for the fibroid to determine where the fibroid is. Q: So, you have a scan machine to scan people to find out whether they have fibroids or not but you refuse to use the same process to check whether the person has been cured or not. A: After the fibroids falls, it is impossible for the scan machine to determine whether the person has the fibroid. So we ask them to come back after forty days for a scan by then the scan would be clear and so that is only when we conduct a scan. Q: So, you had a scan machine to check whether the Plaintiffs were fully recovered or not but you refused to do same and presented them to give testimonies without checking for the fibroid with the scan. A: Yes, we took the scan before they testified and even conducted further examinations on them like the tapping of the stomach, we did not force them to testify. Q: Did you show the scan results to the patients for them to confirm they were cured before you engaged them in the advert of testimony. A: Yes, we show the scan to them on the screen. Page 11 of 20 Q: You indicated to this Court a few minutes ago that you only do a confirmatory scan after forty days and you are saying that you do a confirmatory scan before the forty (40) days how do you reconcile that. A: We use the scan and our hands to check before they testify and then when they return after forty (40) days we conduct the scan to check properly. Because of these inconsistencies in the Defendants testimony, the Court does not find the witness credible and therefore prefers the testimony of the Plaintiffs to that of the Defendants. The Court would like to indicate that the law that governs relationships like the one between the Parties herein is the law of contract. Normally, in determining a contract the Courts usually look out for an offer and a corresponding acceptance. Sometimes, these offers and their acceptances are not direct or express and may be inferred from the conduct of the Parties by the Court. Thus an offer may be defined as; “an indication in words or by conduct by an offeror that he may be prepared to be bound by a contract in terms expressed in the offer, if the offeree communicates to the offeror his acceptance of those terms”. Also, there are Bilateral and Unilateral contracts. Unilateral contracts apply, thus to this case. Page 12 of 20 “Unilateral contracts are created by general offers which are made to the public at large or a particular person by way of public notice which can be accepted by numerous persons”. In the classical case of Carlill V. Carbolic Smoke ball Ltd [1983] 1 QB 256, the English Court of Appeal held “that an advertisement containing certain terms to get a reward constituted a binding unilateral offer that could be accepted by anyone who performed its terms”. It is the case of all Plaintiffs in this suit that Defendants herein made adverts in which they claimed that anyone who patronized their services would have their fibroid removed after seven to nine days and after forty days they were not healed they would have their money refunded. It is the Plaintiffs claim that they visited the Defendants facility based on the advertisement they heard and submitted themselves for the treatment of their fibroid and that even at the facility, the second Defendant still gave them assurances to the effect that, their money would be refunded if their fibroid was not healed. Concerning the first issue as to whether or not there was a contract between the Parties in this suit, it is the Plaintiffs case that they visited the Defendants facility based on the advertisement they heard. They submitted themselves for treatment at the Defendants facility where the second Defendant still gave them assurances to the effect that the various sums of money they had taken from them would be refunded to them if their fibroid was not cured after forty (40) days. As per the Carlill V. Carbolic case (supra) and Page 13 of 20 upon the evaluation of the total evidence adduced by the Parties, the Court holds that the conduct of the Parties herein constitutes a valid offer and acceptance. Thus the Defendants by their advertisements on radio made a unilateral offer which the Plaintiffs accepted by paying consideration to the Defendants for their fibroid to be cured. On the second issue as to whether or not there was a breach of contract, the Court has taken a close look at the exhibits the Plaintiffs have attached to their witness statements i.e. the scan reports and also medical reports tendered by the Plaintiffs in this matter or during trial as proof that they were not cured after visiting the Defendants facility for treatment. The Court upon a careful study of the said exhibits holds that the Defendants were not cured after visiting the Defendants facility for treatment as the medical reports and scans showed that the first to ninth Plaintiffs still had fibroids and were not cured after they visited the Defendants facility. It is worth noting that these exhibits which are the scans and medical reports were taken or written after the Plaintiffs had visited and left the Defendants facility. Accordingly, the Court therefore holds that there is a breach of contract. Thus the Defendants could not perform their part of the contract as per the offer they made and are hereby ordered to refund to the Plaintiffs the various sums they paid at the facility with interest on these sums at the prevailing bank rate from the various days they visited the facility to the date of final payment. The Defendants are hereby also ordered to pay the sum of GH¢2,000 to each of Plaintiff’s as general damages for the breach of contract. See Prah & others V. Anane [1964] GLR 455 at page 465. Page 14 of 20 The Plaintiffs in their reliefs sought prayed the Court to award them with special damages for vaginal infection and also damages for the inhumane treatment meted out by the Defendants to them. Justice Yaw Appau C. A (as he then was) in his paper on Assessment of damages presented at the Judicial Training Institute stated; “…..before an assessment of damages could be made, the Plaintiff claimant must first furnish evidence to warrant the award of damages. He must also provide facts that would form the basis of assessment of damages he would be entitled to. His failure to do so would be fatal to his claim for damages….” He further went ahead to distinguish between general and special damages. He stated thus; “According to Lord Macnaghten General Damages are such as the law will presume to be the direct natural or probable consequences of the action complained of. Special Damages on the other hand are such as the law will not infer from nature of the act. They do not follow in ordinary cause. They are exception in character and therefore they must be carried specially and proved strictly. He further stated thus, unlike general damages a claim for special damages should be specially pleaded, particularized and proved. I call them the three (3) Ps. The Plaintiffs repeated in their averments and testimonies that the Defendants meted out to them inhumane treatment at the facility but failed furnish the Court with sufficient Page 15 of 20 evidence to prove that the Defendants truly treated them inhumanely and also that they suffered injury because of that treatment meted out to them by the Defendants. The Plaintiffs also prayed for damages for vaginal infections they contracted as a result of the fibroid treatment by the Defendants at their facility. They failed to prove that they indeed contracted vaginal infections from the treatment at the facility. The fifth and eighth Plaintiff’s laboratory report showed some evidence of infections but again, they both failed to link the cause of the infection to the treatment at the Defendant’s facility or that those infections stem from the treatment they had undergone at the facility. Plaintiffs also prayed for the recovery of pictures taken by the Defendants. Indeed the Defendants themselves tendered some of these pictures and videos to support their case. Accordingly, the court hereby orders the Defendants to deliver all those pictures and videos in their possession to the various Plaintiffs forthwith. Lastly, the Plaintiffs made a prayer for cost; the policy rationale behind the institution of costs in litigation has been judicially articulated in the case of SCOA Motors V Koranteng [1967[GLR 263, where Azu Crabbe J. A (as he then was) said; “The real object of awarding costs is to recoup a plaintiff who had successfully established his right to maintain the litigation which he had commenced or the defendant who had been wrongly dragged into court and harassed with litigation” Order 7 rule 1 (1) of C. I 59 also provides that costs in a suit is at the discretion of the Court and the Court may after hearing the Parties awards costs it considers just. Page 16 of 20 The Court considers the circumstances of each case in arriving at the quantum of costs such as the amount of expenses incurred by the Party or his lawyer, amount of Court fees paid, the length and complexity of proceedings, conduct of Parties and or their lawyers during proceedings, length of trial, number of witnesses. Thus the Court must be fair to both Parties in awarding cost. See Neuseite Meditek and Konsult V. United Bank for Africa (GH) Limited [2021] DLCA 10755. The Court having regard to the circumstances of this suit and taking into consideration the principles in awarding cost hereby awards cost of GH¢20,000 in favour of all Plaintiffs against the Defendants. DISPOSITION Upon the evaluation of the total evidence adduced, the Court found as follows; i. That the conduct of the Parties in this suit constituted a valid offer and acceptance and therefore a valid contract was borne. Thus the Defendants by their advertisement on radio made a unilateral offer which the Plaintiffs accepted by paying consideration to the Defendants for their fibroids to be cured. ii. That the Defendants failed to cure the Plaintiffs of the fibroids and therefore breached their part of the contract. In view of the foregoing, the Court hereby orders as follows; Page 17 of 20 a) That the Defendants refund the consideration (money) paid to them by the Plaintiffs for cure of their fibroids with interest at the prevailing bank rate as follows; i. ii. For the first Plaintiff an amount of GH¢6,000.00 with interest from January, 2023 till date of final payment. For the second Plaintiff an amount of GH¢9,400.00 with interest from February, 2023 till the date of final payment. iii. For the third Plaintiff an amount of GH¢7,300.00 with interest from January 2023 till date of final payment. iv. For the fourth Plaintiff an amount of GH¢7,150.00 with interest from February 2023 till date of final payment. v. For the fifth Plaintiff an amount of GH¢7,700.00 with interest from February, 2023 till date of final payment. vi. For the sixth Plaintiff an amount of GH¢4,700.00 with interest from January, 2023 till date of final payment. vii. For the seventh Plaintiff an amount of GH¢7,350.00 with interest from March 2023 till date of final payment. viii. For the Eighth Plaintiff an amount of GH¢9,900 with interest on the said sum from March, 2023 till date of final payment. ix. For the ninth Plaintiff an amount of GH¢6,000 with interest on the said sum from January 2023 till date of final payment. b) The Court also awards damages for breach of contract in the sum of GH¢2,000 for each of the nine Plaintiffs in this suit. c) On the reliefs of damages for vaginal infection contracted as a result of the treatment at the Defendants facility, the Court holds that the Plaintiffs failed to Page 18 of 20 proof that they indeed contracted these vaginal infections as there was no evidence to show. Even though the fifth and eighth Plaintiffs lab reports showed some evidence of infection they failed to establish the cause-effect linkage of the treatment administered by the Defendants. d) The Defendants are hereby ordered to return all pictures and videos of all Plaintiffs in their possession forthwith. e) The Defendants are ordered to deliver all pictures and videos in their possession to the various Plaintiffs forthwith. f) Cost of GH¢20,000.00 for the Plaintiffs against the Defendants. (SGD) H/W NANCY TEIKO SEARYOH (MRS.) MAGISTRATE PLAINTIFFS PRESENT EXCEPT 9TH PLANTIFF 9TH PLAINTIFF ABSENT REPRESENTED BY 1ST PLAINTIFF 2ND DEFENDANT PRESENT 1ST DEFENDANT ABSENT REPRESENTED BY 2ND DEFENDANT Page 19 of 20 DAVID WORWUI-BROWN ESQ FOR THE PLAINTIFFS PRESENT WISDOM SMITH KWABENA AKORLI ESQ FOR THE DEFENDANTS PRESENT Page 20 of 20