ANOKYE-YEBOAH VRS. KWAKYE (A2/144/22) [2024] GHADC 485 (28 October 2024)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, SITTING AT THE DISTRICT COURT ‘2’, KOTOBABI NEAR THE KOTOBABI CLUSTER OF SCHOOLS, ACCRA ON 28TH OCTOBER, 2024. SUIT NO. A2/144/22 LESLIE ANOKYE-YEBOAH GC-116-5340 :: PLAINTIFF GBAWE CP- ACCRA VRS. REV. EDWARD F. KWAKYE :: DEFENDANT OHIO- UNITED STATES OF AMERICA JUDGMENT INTRODUCTION Per a Writ of Summons issued by the Plaintiff on 7th February, 2022, the Plaintiff claimed against the Defendant the following reliefs: 1. An order directed at the Defendant to pay the Plaintiff an amount of GH¢38,900.00 being the money spent on fixing the Defendant’s old Kia Sorento 4x4 with registration number GW 1988-16. 2. An order directed at the Defendant to pay to the Plaintiff an amount of GH¢24,000.00 being compensation for work done in 24 months assessed at LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE GH¢1,000.00 per month by the Defendant during the setting up and running of Plaintiff’s pharmacy shop called Alpha Glory Pharmacy. 3. 4. 5. Interest from May, 2018 till date of final payment. Damages for breach of contract. Cost. WRITTEN STATEMENTS The Plaintiff’s case per the Writ of Summons and Statement of Claim was that sometime in 2018 the Defendant asked him to open a pharmacy shop for him and promised to pay for his services. Plaintiff stated that he informed Defendant that he would need a car to be able to carry out the task and as such, Defendant made arrangements for Plaintiff to pick up his old Kia Sorento 4x4 with registration number GW 1988-16 which he had no use for from his mechanic at Dansoman. Plaintiff further averred that the vehicle was in a bad condition when he took possession of it and he informed Defendant. Plaintiff added that Defendant told him that if he could repair the vehicle, he should do so and keep it absolutely. Plaintiff alleged that he expended an amount of GH¢38,900.00 to repair the vehicle for it to become roadworthy under the impression that the vehicle had been given to him absolutely. According to Plaintiff, he opened the Pharmacy shop for the Defendant and he was entrusted with its day-to-day running for about two years. It was his case that after working diligently for Defendant for two years without pay which was against their agreement, Defendant in September, 2021 dismissed him without compensation and also took back the vehicle he spent so much on to repair. Plaintiff asserted that after several demands on Defendant to pay him what is due him, the latter has failed to do so. It is LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE therefore Plaintiff’s case that unless ordered by this Court, Defendant will not pay him for the number of months he was made to work without pay. Defendant defended the action by filing a Statement of Defence on 29th March, 2022. According to the Defendant, he only discussed his plans of opening a pharmacy shop with his sister-in-law, Brenda Praba Yankah, who was then Plaintiff’s girlfriend, and not with the Plaintiff as he wants the Court to believe. Defendant stated that sometime in 2018 when he returned to Ghana, he asked Brenda Praba Yankah to move into his house at Tantra Hills and discussed with her his plans of opening a pharmacy shop in front of the house. Defendant’s case was that he entrusted his business plans with Brenda to supervise the work. According to Defendant, Brenda subsequently asked for his Kia Sorento 4x4 since the roads leading to his house were in deplorable state. After seeking the approval of his wife, Brenda went for Defendant’s car from his mechanic at Darkuman, sold her saloon car and used the proceeds to fix the Defendant’s Kia Sorento 4x4. It was Defendant’s case that Plaintiff was not a party to the discussion he had with Brenda in respect of the vehicle and the opening of the pharmacy and it was therefore Brenda Praba Yankah who was in charge of opening the pharmacy and not the Plaintiff. Defendant further added that the car was not given to Brenda Praba Yankah as a gift absolutely even though the documents to the car were in her possession. The Defendant’s case was that he was sending Brenda money when she moved into his house for works in respect of the pharmacy to begin. It was during this period that Brenda informed him of a pharmacist, Augustina Asantewaa Asiedu, who was charged with acquiring the license and employing personnel for the pharmacy. Defendant stated that he met Augustina when he returned to Ghana in 2019 when the Plaintiff was marrying Brenda Praba Yankah. Defendant stated further that even after their marriage, Brenda LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE continued to live in his house to supervise the opening of the pharmacy. Defendant asserted that Plaintiff also moved into his house with Brenda and stayed there without paying rent. According to Defendant, at all material times, it has been Augustina who has been managing the pharmacy for him and not the Plaintiff. Defendant averred that Plaintiff moved out of his house sometime in July, 2021 when his marriage with Brenda fell on rocks. To him, Plaintiff’s action is one not deserving of any merit, spiteful and same instituted in bad faith since Plaintiff intends to unjustly unrich himself. Defendant counterclaimed against the Plaintiff as follows: a) A sum of Fifty Thousand Ghana Cedis for defamation of Defendant, a respectable man of God. b) Cost including legal fees. c) Any other order(s) as this Honourable Court may deem fit. Plaintiff on 20th April, 2022 filed a Reply and Defence to Counterclaim. According to Plaintiff, Defendant asked him to repair the car and keep it. He added that the car together with its documents were in his possession till the Defendant asked his lawful Attorney, Justice Agyei-Quartey to take them from him in September, 2021. Plaintiff further stated that he was the one who introduced the Pharmacist, Augustina Asiedu to the Defendant. It was Plaintiff’s case that the Defendant himself asked him and his ex-wife, Brenda to live in Defendant’s house at Tantra hills. According to Plaintiff, he was running the pharmacy with Augustina. ISSUES LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE At the close of trial, the Court gave Counsel for both parties the opportunity to address the Court in writing. Counsel for the Plaintiff filed his Written Address on 24th September, 2024 but none was received from Defendant’s Counsel. In his Address, Plaintiff’s Counsel raised five issues which in his opinion require resolution by the Court. I agree that all the issues raised by him are germane. From the pleadings and in order to determine whether the parties are entitled to the reliefs sought, the issues for determination by this Court are: 1. Whether or not the witness statement of Justice Agyei-Quartey is admissible. 2. Whether or not the Defendant contracted the Plaintiff in the opening and running of Defendant’s pharmacy, Alpha Glory Pharmacy. 3. Whether or not there was any agreement between the parties for the Defendant to pay Plaintiff salary. 4. Whether or not the Defendant gave his Kia Sorento 4x4 with registration number GW 1988-16 to the Plaintiff as gift absolutely. 5. Whether or not the Plaintiff expended monies on the vehicle for which he is to receive a refund. 6. Whether or not Plaintiff has defamed the Defendant and is therefore liable in defamation. LEGAL ANALYSIS AND EVALUATION OF EVIDENCE It is trite that in civil cases, the general rule is that the party who in his/her pleadings or writ raises issues essential to the success of his/her case assumes the onus of proof. The one who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323); Tagoe v. Accra Brewery [2016] 93 GMJ 103 S. C; Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C. A. In the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the Supreme Court captured the trite position of the law relating to the burden of proof and stated as follows at page 900: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in Section 12(2) of the Evidence Decree, 1975 (NRCD 323). Our understanding of the rules in Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favorable verdict.” Similarly, in GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458, the Supreme Court held that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” The parties therefore had the onus of discharging the burden of producing sufficient evidence in respect of their respective claims on a balance of probabilities. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Plaintiff’s Case In his evidence-in-chief per his adopted Witness Statement filed on 20th April, 2022, Plaintiff testified that he was introduced to Defendant by Brenda Praba Yankah. According to Plaintiff, sometime in 2018, Defendant asked him to help him open a pharmacy shop and promised to pay for his services. In order to perform this task, Plaintiff testified that he expressed his need for a vehicle to Defendant who made arrangements for him to pick up his Kia Sorento 4x4 with registration number GW 1988- 16 from a mechanic shop at Dansoman. Plaintiff testified that the vehicle was in a bad condition when he took possession of it and he informed Defendant who asked him to repair the vehicle and keep it absolutely. The testimony of Plaintiff was that he spent an amount of GH¢38,900.00 to repair the vehicle in order for it to become roadworthy under the impression that the vehicle had been gifted to him by the Defendant. He tendered in evidence receipts of car parts purchased as Exhibit ‘A’ series. Plaintiff further testified that he was the one who set up the Pharmacy shop for Defendant and contracted and supervised the works of all the artisans who worked on the pharmacy shop. Plaintiff’s testimony was that Defendant was initially sending him money through his lawful Attorney, Justice Agyei- Quartey until 2019 when he started sending money directly to him, the Plaintiff for the pharmacy. To prove his assertions, he tendered in evidence copies of receipts evidencing various monies sent to him by Defendant in respect of the pharmacy as Exhibit ‘B’. Plaintiff again testified that during the setting up of the pharmacy, he was sending progress report to the Defendant via WhatsApp. He therefore tendered in evidence WhatsApp correspondence between him and the Defendant to support his claims as Exhibit ‘C’. It was his case that he was the one who introduced the pharmacist, Augustina Asantewaa Asiedu to the Defendant before she was engaged as the pharmacist for the LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE shop. According to Plaintiff, the license of the pharmacy shop was acquired through the joint efforts of Augustina and himself. He further testified that even after the opening of the pharmacy, they were both running it side by side until he was sacked by the Defendant without compensation. He said even though he continuously demanded for remuneration from the Defendant, Defendant has failed to pay him what he is due. Plaintiff called two witnesses to testify to support his case. PW1, Abdul Nutalid Inusah, an Aluminum Fabricator, testified that he was contracted by the Plaintiff sometime in 2019 to work on the pharmacy shop, the subject matter of this suit. According to him, he did all the partitions in the shop together with all the shelves. PW1 further testified that Plaintiff supervised all his works and paid him after the work was done. Plaintiff’s second witness was Rev. Emmanuel Opoku Sintim who had his witness statement filed on 18th September, 2022. He testified that he is a Pastor and a car dealer. It was his testimony that sometime in 2020, the Plaintiff’s mother informed him about a Kia Sorento 4x4 which the Defendant had given to Plaintiff. According to him, he was informed that the car had issues with the engine and although the engine had been replaced earlier, their mechanic had recommended another engine for the car. PW2 further testified that he asked for the car to be brought to him for his personal mechanic to check it. After the examination, it was suggested that the gasket, head and other parts of the engine be changed rather than replacing it with a new engine. PW2 added that he went to Abossey Okai to purchase the needed parts for the vehicle with the funds provided by Plaintiff and his mother. According to him, he spent more than GH¢3,000.00 for the repair works excluding workmanship. Defendant’s Case LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Defendant testified through his Lawful Attorney, Justice Agyei-Quartey, who relied on a witness statement filed on 2nd August, 2022. The substance of his evidence-in-chief would not be gone into now since one of the issues for determination bother on the admissibility or otherwise of his witness statement. According to Defendant’s first witness, the Plaintiff is her ex-husband whereas the Defendant is her brother-in-law. She testified that sometime in 2018, she was informed by her mother that her sister and her husband, Defendant herein, have purchased a house at Tantra Hills and would want her to move into the premises. She stated that the Defendant himself asked him to move into the premises when he returned to Ghana and also expressed his desire to open a pharmacy shop in front of the house and wanted her to supervise. When she expressed her concerns about the deplorable state of the roads leading to Defendant’s house, the latter informed her that she could use his Kia Sorento 4x4 car which was at the mechanic shop at Dansoman. After selling her Kia Rio car, she bought a new car battery for Defendant’s car and went together with the Plaintiff for the vehicle from the mechanic shop. She added that it was the Plaintiff who drove the Kia Sorento 4x4 to her apartment at La. According to her, she asked her mechanic to examine the vehicle and give her an estimate for the repair works to be done and after the examination, she gave the mechanic money to repair the vehicle. It was her testimony that she fixed the Kia Sorento 4x4 car with her own money without any contribution from the Plaintiff. DW1 further stated that after discussing Defendant’s plans to open a pharmacy, she discussed it with the Plaintiff who was then her boyfriend and subsequently introduced Plaintiff to the Defendant. According to DW1, she moved into Defendant’s house with Plaintiff. Few months after, Plaintiff introduced DW2 to her. It was her testimony that Defendant started sending monies to her and Defendant’s lawful Attorney in respect of the shop after she spoke to LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE the Defendant about DW1. She however told Defendant to send the monies to Plaintiff since he was always at home and could supervise the work. DW1 further testified that Defendant met DW2 when he came to Ghana for her wedding with the Plaintiff. Her testimony was that after the pharmacy was opened, DW2 was the one who employed qualified pharmacist to operate the shop. She added that it was the Plaintiff who opened and closed the shop for them since he was not working and was always at home. DW1 further testified that some months after the opening of the shop, Defendant asked his son, Ebenezer to supervise the operation of the pharmacy. She stated that Plaintiff has never worked as an employee in the pharmacy since it started business. Her testimony was that after their marriage broke down, Plaintiff left Defendant’s house with the Kia Sorento 4x4 car. She therefore called Defendant to inform him. It was Defendant’s Attorney who went to retrieve the car from the Plaintiff acting on the instructions of the Defendant. Defendant again called Augustina Asantewaa to testify for him in respect of this suit. According to her, she is the Manageress of Alpha Glory Pharmacy, the subject matter of this suit. Her testimony was that the Plaintiff came to her pharmacy shop some time ago to inform her of his intention to open a pharmacy shop with his wife so he sought her help concerning the processes involved. She stated that the Plaintiff introduced her to DW1 as well as to the Defendant’s lawful Attorney. DW2’s testimony was that during the wedding of Plaintiff and DW1 in July, 2019, Defendant’s Attorney informed her that the pharmacy in fact belonged to the Defendant and not the Plaintiff as he had earlier made her to believe. According to her, Defendant’s lawful Attorney scheduled a meeting for her to meet the Defendant, his wife and the Plaintiff himself. It was during the said meeting that she explained the processes involved and suggested to use her license to open the pharmacy for the Defendant as an annex. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE She testified further that after the opening of the pharmacy, she employed qualified people to work there. It was her case that the Plaintiff has never worked in the pharmacy neither was he an employee except for opening and closing the shop. Issue 1. Whether or not the witness statement of Justice Agyei-Quartey is admissible Counsel for the Plaintiff submitted in his Address that the witness statement of Justice Adjei-Quartey is inadmissible because no Power of Attorney was attached to his witness statement to support his claim that he is the lawful attorney of the Defendant. Consequently, this Court should expunge his evidence from the record. In the witness statement of Defendant filed on 2nd August 2022, the introductory portion stated as follows: “My name is Justice Agyei-Quartey and I live at Accra. 1. I am the lawful attorney of the Defendant.” It is not in doubt that no Power of Attorney was attached to the witness statement to buttress the assertion of the said witness. As a matter of fact, I have gone through the entire docket and no Power of Attorney was filed at any point in time to confirm the assertion that Justice Agyei-Quartey had been legally authorized by the Defendant to represent him and testify on his behalf. The witness statement which was adopted by the Court was therefore admitted in error as same is inadmissible. From reading through the said witness statement, it cannot even be said that Justice Agyei-Quartey was testifying for himself as a witness for the Defendant on matters within his own personal knowledge for the witness statement to have been admissible as the evidence-in-chief of Defendant’s witness. Section 8 of the Evidence Act, 1975 (NRCD 323) empowers the Court to exclude inadmissible evidence. The evidence-in-chief of Justice Agyei-Quartey together with the consequent cross examination is therefore expunged. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Issue 2. Whether or not the Defendant contracted the Plaintiff in the opening and running of Defendant’s pharmacy, Alpha Glory Pharmacy. AND Issue 3. Whether or not there was any agreement between the parties for the Defendant to pay Plaintiff salary. From the evidence adduced before this Court, the facts relevant to the determination of this issue are that the Plaintiff asserts that the Defendant sometime in 2018 asked him to assist him to open a pharmacy shop and promised to pay him a monthly salary of GH¢1,000.00. According to him, after opening the pharmacy shop for the Defendant, the latter has failed to pay him as agreed. I have found as a fact from the record and evidence adduced before this Court that the Plaintiff indeed was involved in the opening of the Defendant’s pharmacy. In fact, he played a substantial role in its opening by contracting artisans to work on the shop, supervising their work and also paying them on behalf of Defendant with the monies he received from Defendant. Plaintiff was even the one who introduced the pharmacist, DW2 to the Defendant through DW1. In the mind of the Court, his contribution towards the opening of the pharmacy is undisputable and same supported by the evidence on record. During the cross examination of DW1 by Counsel for the Plaintiff, this is what transpired: Q: Can you tell the Court the name of the person who facilitated the setting up of the pharmacy? A: Defendant discussed that with me and I later discussed with Plaintiff and he said he could assist in getting a pharmacist to assist get a license… LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE The Defendant was initially sending money to Justice DW1 in respect of works to be done on the pharmacy. However, due to their busy schedule, DW1 informed him that the Plaintiff was supervising the work. It was after this that the Defendant started sending money to the Plaintiff concerning the opening of the pharmacy. It is clear from the record that the Defendant acknowledges that he dealt with the Plaintiff in respect of works done during the establishment of the pharmacy. What is in contention is whether it was agreed by both parties that Defendant would pay for the assistance given by the Plaintiff. Even though Plaintiff claims that there was an oral agreement between the parties that the Defendant would pay him a monthly salary of GH¢1,000.00, Defendant vehemently disputed this. The burden was therefore on Plaintiff to prove to the satisfaction of this Court his claim. There is enough evidence to show that the Defendant allowed the Plaintiff and his former wife, DW1, to live in his house at Tantra Hills without paying rent. Plaintiff was therefore required to show that whatever assistance he gave to Defendant in establishing the pharmacy was not a gratuitous act. Assuming without admitting that such contract was indeed entered into between the parties, Plaintiff failed to show this Court his contract of employment or even in the absence of same, the exact role he performed as an employee of the Defendant, with the necessary evidence to back that. Throughout cross examination, Plaintiff was unable to tell this Court the capacity in which he was employed by the Defendant. This is what happened under cross examination of Plaintiff: Q: You agree with me that all persons who worked at the pharmacy needed the consent and approval of the Defendant. A: Yes, my lady. I worked with him with full approval and consent. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Q: What then was your assigned role? A: From 10th May, 2018 to 21st March, 2021, I worked for Defendant in various capacities. I organized all the artisans required to perform the various roles required to establish the pharmacy. The artisans namely carpenters to construct shelves, glass people to construct glass show case, painters to paint, masons to construct gutter in front of the shop, welders to construct a fence, etc. I was responsible for the formation and its establishment and that is two years of my time. From 1st March, 2021 to 18th July, 2021, I performed these functions on behalf of defendant. They came on five different occasions. I helped in stocking the pharmacy shop. I procured various medication sent by Defendant from the location he sent the drugs, to the shop at Tantra Hill. I supervised work done and reported same to Defendant on daily basis. I was responsible for advertising the pharmacy since it was new. The functions were many. In total, it is three years, six months that I worked with defendant and per the agreement which was GH¢1,000.00 a month it amounts to GH¢36,000.00 and Defendant refused to pay same. This piece of evidence establishes the contribution of the Plaintiff in respect of the opening of the pharmacy shop which this Court has found as a fact earlier. The contributions he spoke of, in the mind of the Court, were all during the time the pharmacy was being set up. Plaintiff failed to prove that his assistance was not merely gratuitous. Plaintiff from his evidence claims to have worked in the pharmacy even after its establishment. He was however unable to show this Court the capacity in which he worked, whether as a Dispensing Assistant or in any other capacity. This is because the evidence on record reveals that those who are in the employ of the Defendant, that is, those who work in the pharmacy are all paid either by DW2 or by Defendant’s son by name Emmanuel. This is what happened under cross examination of DW2 by Counsel for the Plaintiff: LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Q: A: All the workers get paid. Is that correct? Yes my lady. Q: Who pays the workers? A: I am the one who used to pay them. Q: Who pays them currently? A: At a point, one of defendant’s son Emma was paying them. Q: When the pharmacy became operational, plaintiff was the one in charge of banking daily sales from the pharmacy. Is that correct? A: That is not correct, if he was doing so then I do not know because I instructed the workers to do the banking. Q: Plaintiff was also working with the Pharmacy until he had a fallout with defendant. Is that correct? A: He was not working there. He used to live in the house so we were leaving the keys with him so that in the morning the workers will come for the keys from him. From the record, Plaintiff was paying the artisans for the work done in the shop with monies sent to him by the Defendant. Even if we assume that the Plaintiff was entitled to the salary claimed from the Defendant, it seems improbable that the Plaintiff would receive funds from the Defendant and then choose to forgo the benefits of a salary for himself, preferring instead to use the money sent to him by Defendant to pay the artisans, all while maintaining that he had not been paid as he asserts. From the evidence adduced, Plaintiff at some point was even collecting the daily sales of the pharmacy from the workers without authorization from the Defendant. Is it his case that he did not draw the attention of the Defendant to the fact that he had still not been paid as alleged and take LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE what was supposedly due him from these monies? I do not think so. This Court therefore concludes on this issue that Plaintiff has failed to prove to the satisfaction of this Court that there was any agreement between the parties for the Plaintiff to be paid any salary for the assistance he offered Defendant. Issue 4. Whether or not the Defendant gave his Kia Sorento 4x4 with registration number GW 1988-16 to the Plaintiff as gift absolutely AND Issue 5. Whether or not the Plaintiff expended monies on the vehicle for which he is to receive a refund. According to the Plaintiff, he asked Defendant for a vehicle which the latter made arrangements for him to pick up his Kia Sorento 4x4 with registration number GW 1988- 16 from a mechanic shop at Dansoman. According to him, he expended an amount of GH¢38,900.00 to repair the said vehicle because it was in a bad condition and also because the Defendant gifted it to him absolutely. He tendered in evidence receipts of car parts purchased as Exhibit ‘A’. In an earlier judgment delivered by this Court on 1st February 2024 in the case of Rashad Baba Adams v. Kofi Ibrahim Yeboah (Suit No. A9/ 335/18), I had this to say in discussing an issue of alleged gift in that case and I believe it is applicable in this case as well: “A customary gift is the voluntary transfer of a property owned by the donor to the donee in the presence of witnesses which is backed by thanksgiving (Aseda). In the case of a personal gift as in the case of the present suit, the owner’s decision is not subject to approval or consent from anyone. The only condition is that it should not be done in secret. It should be witnessed by others, preferably by members of the immediate family of the donor who are not entitled to question LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE his decision provided they have no interest in the property which he intends to give away. It does not end there. The beneficiary of the gift expresses his acceptance and gratitude for the gift by payment of "aseda" in any form depending on the circumstances of each case. There are several cases which have dealt at length with the position of the law on customary gifts and I would mention a few of them. In the case of Paul Adomako & Another v Mrs. Owusu-Asiedu [2002] DLCA 6571, the Court held that: “It is trite law that one of the most important ingredients of a customary gift is “ASEDA” without which no customary gift as a rule, can be complete. Equally important are “publicity” and acceptance, and placing the donee in possession. (Ackun v. Yanney [1962] 1 GLR 464.” His Lordship Kweku T. Ackaah-Boafo J. (as he then was) noted in the case of Margaret Duncan Williams v Edward Duncan Williams (2018) JELR 107897 as follows: “The essential characteristics of a valid customary law gift, on the other hand, are that the gift must move from the donor to the donee. The donee must accept it and by way of reciprocity, offer a token in appreciation therefor. Additionally, there should be due publicity of the gift before witnesses.” The Court of Appeal held in the case of P. A. T. Okine v Patrick Aryee Aryeetey & Another (2018) JELR 66105 as follows: “The essential elements of a customary gift has been established in several cases. As cited by Counsel for the plaintiff/appellant, the cases include Asare vrs Teing and Another (1960) GLR 155; Mohama Hausa vrs Baako Hausa (1972) 2 GLR 469; Asare vrs Kumoji (2000) SCGLR 298 and Akunsa vrs Botchway and Tei River Farms Ltd LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE (2011) 1 SCGLR 288. One of the basic ingredients deducible in all the cases is that there must be publicity of the gift exemplified by the presence of witnesses at the time of making the gift.” In Henry Prempeh Bonsu v Kwadwo Bempong Adom (2019) JELR 108088, His Lordship Alexander Osei Tutu J. held as follows: In the case of Asare v. Teing & Another [1960] GLR 155, it was held at page 160 as follows: “The essentials of a valid gift made in accordance with customary law are publicity, acceptance, and placing the donee in possession. The way to give publicity to a gift of land is to make the gift in the presence of witnesses … and the acceptance must be evidenced by the presentation of "drink" or some small amount of money to the donor, part of which is served to or shared among the witnesses to the transaction”. [Emphasis is mine]. The essentials of a customary gift have been stated in a plethora of judicial decisions. The Supreme Court per Benin JSC in the case of Giwah v. Ladi [2013- 2014] 2 SCGLR 1139 decided as follows: “It was well-settled that a customary gift of landed property must be offered and accepted and must be witnessed by somebody other than the donor and donee. Thus to prove a customary gift, it was not sufficient to state barely that a gift was made. A party relying on a customary gift must show the occasion, if any, on which the gift was made, the date, the time if possible and the venue; and most importantly, in whose presence it was made.” See the cases of In Re Suhyen Stool; Wiredu & Obenewaa v. Agyei & Others (2007) 11 MLRG 14; Comfort Darko v. Julian Darko [2016] 97 GMJ 153 at pages 166-167, C. A.; Serwaa v. Mensah [2009] 9 GMJ 130, and Nana Akua Ampomah II v. Adu Yeboah & Another (2014) 69 GMJ 137 at page 150. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE See also Theophilia Acheampong v SOS Ghana (2016) JELR 6446 and Obaapanin Abena Manu & 43 others v Opanyin Kwaku Mensah & 4 others (2018) JELR 69605 (CA).” During cross examination, Plaintiff stated that his mother called Defendant to thank him when the vehicle was supposedly gifted to him. This is what happened under cross examination: Q: Apart from the day you said you both had that communication, did he later say it in the presence of any other person? A: I called my mother, told her same on the phone and she spoke with Defendant to show appreciation and confirmed same from Defendant. The evidence of the Plaintiff in respect of the allegation of a gift was one under serious contention and the Plaintiff therefore had to do more than barely repeating his averments on oath. He could not establish the fulfilment by him of the requirements of a valid gift. Notwithstanding his assertion that his mother was informed about the gift and she even went ahead to express appreciation to Defendant, Plaintiff failed to call her mother to testify in support of his claims against the Defendant especially when he wants this Court to believe that there was no other person present at the meeting aside the Defendant and himself. There is nothing to show that the vehicle was in fact gifted to the Plaintiff absolutely. There was also nothing to even show a change in ownership of the vehicle from the Defendant to him. This is what transpired during cross examination of Plaintiff by counsel for the Defendant: Q: When he gifted you the said car, did you do any documentation in respect of change of ownership? LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE A: No, my lady because the vehicle was not motorable. Q: Was there any documentation of the vehicle in your name when it became motorable? A: No my lady. Plaintiff further claimed that he spent an amount of GH¢38,900.00 to repair the vehicle in order for it to become roadworthy under the impression that the vehicle had been gifted to him by the Defendant. He tendered in evidence receipts of car parts purchased as Exhibit ‘A’. Plaintiff acknowledged under cross examination that DW1 performed some degree of work on the vehicle. However, he spent so much more than she did and wishes to be reimbursed. This is what happened under cross examination: Q: So you took the car to your mechanic. It was there for close to 6 months before you had repairs? A: No I made arrangement for my mechanic to pick the vehicle from Dansoman (mechanic shop). The mechanic assessed the extent of damage and my wife then also tasked her mechanic to perform some degree of work on the vehicle and after 6 months from 2019 till September 1, 2021 I performed various degree of mechanical works on the vehicle till Defendant came for it from me on 1st September 2021. It is in respect of these expenses purportedly made that Plaintiff tendered in evidence Exhibit ‘A’ series. I have carefully examined these exhibits tendered in support of Plaintiff’s claims. It is evident from the said exhibit that the same handwriting was used to fill the details of the Plaintiff (The name, address and telephone number). This is the case for all the receipts even though they were issued by different shops. When it comes to the quantity of goods bought however, the handwritings are different. It is incredibly difficult to believe that all the shop attendants from the various stores had identical LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE handwriting and used it to complete the different receipts presented in evidence particularly the part which required the Plaintiff’s details. The Plaintiff could not give any tangible explanation for this ‘coincidence’. A look for instance at the receipts purported to have been issued by Have Mercy Upon Me Motors to the Plaintiff are dated 15th December 2019 and 13th February 2020; almost two months apart. However, the receipt Numbers are 000914 and 0000915 respectively. Does it mean that no sales were done by that shop and no receipts were issued from the date of Plaintiff’s alleged purchase in December 2015 until another purchase was purportedly made by him in February 2020? I do not believe this to be true. The likelihood of all these happening by chance seems highly improbable. It can only mean one thing: that the said exhibits were procured after the commencement of this action and are self- serving. The evidence shows that DW1 sold her Kia Rio vehicle and proceeds therefrom were used in repairing the Kia Sorrento. The Plaintiff acknowledged this under cross examination, although he added that he spent a lot more himself on the vehicle. As earlier settled, the vehicle had not been gifted to the Plaintiff and as such, any expenses he made on the vehicle was for his own benefit to aid his own movements, especially when he chose not to inform the Defendant of any repairs he intended to make, when his then wife had taken care of some extent of repair works. Contrary to Plaintiff’s evidence that the vehicle had all the while not been motorable, his own witness attested to the fact that it was in good working condition. How was the vehicle conveyed from the house by Plaintiff after the breakdown of his marriage with PW1 if it was not motorable? PW3 made the following revelations when he was under cross examination: LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Q: The day you said you went to Abossey Okai to buy parts, did you go with Plaintiff? A: No my lady. I went with my mechanic. Q: Did you buy any parts when you went with your mechanic? A: Yes my lady. Q: The items you bought, were you given receipts for them? A: No my lady. Q: How did you arrive at the total cost of the items you bought, that is, can you provide various unit of cost of each part bought? A: Yes my lady. I can remember some but because it has been long, I cannot remember some. Q: Mention the one you remember. A: This 4X4 has two engine heads so we bought the two heads and one cost GH¢1,200.00 at the time. We bought engine coolant which cost GH¢300.00. We bought engine head gasket (2) which I cannot remember the price but one would not be more than GH¢100.00 at the time. We changed the engine oil and engine oil filter. There was no battery on the car then so I bought 15 plate platinum which cost GH¢500.00. The other things we bought were petty things which I cannot remember. We also had workmanship which I did not include in my witness statement. Q: Do you still stand by your earlier statement that all the items had no receipt. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE A: Yes my lady. I collected them at the time but because of my relationship with the family, I do not normally give the receipts to the family because sometimes I even pay for some of the things. Q: Are you aware of any part the Plaintiff bought himself for the mechanic to use to fix the car? A: As far as my side of repairs was concerned, there was no part that Plaintiff bought at the time. Q: At the time you handed over the car to Plaintiff, had it been fixed and was it in a drivable mode? A: Yes my lady. When I returned the car to Plaintiff, it was in a good shape. Q: Did you inform Plaintiff to carry on any further repairs after you handed over to him? A: To the best of my knowledge, I do not remember telling Plaintiff anything like that. Q: The time you called for the car, do you know where it was brought from? A: Yes my lady. I went to the house where they were staying with my mechanic and my own car battery and the mechanic checked it, and did something and he was able to send it to his shop for repairs. Q: Was the car driven or towed from Defendant’s house to the Mechanic’s shop? A: It was driven. Q: How did you arrive at the figure stated in paragraph 9 of your witness statement? A: I earlier said at the time I was giving the statement there were certain things I had forgotten so the one I remember is what I gave. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Q: From the answer you just gave, is it possible that the actual price spent was less or more than the amount state? A: Yes my lady. It will be more. Q: Do you know that the Defendant was responsible for the payment of all repairs on the car? A: No my lady. Q: I am putting it to you that Plaintiff’s mother never informed you about any car that had been given to her son. A: She did. Q: Apart from Plaintiff’s mother, do you know any other person who is aware of the car having been given to Plaintiff. A: No my lady. Q: Are you aware that after the repairs, Plaintiff used the car for his personal use? A: All that I know is that after the repair, I took the car back to where I took it. Q: For all the repairs you did on the car did Plaintiff ever give you any money for repairs. A: It was the mother who gave me every payment. The Plaintiff has failed to adduce sufficient evidence to prove his claim that the Kia Sorento 4x4 with registration number GW 1988-16 was given to him as a gift absolutely by the Defendant and there is also no justification for the reimbursement of any alleged expenses on Defendant’s vehicle to him. There was no agreement between him and LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE Defendant for him to make any repairs on Defendant’s behalf, for which Defendant ought to pay him back any money. Issue 6: Whether or not Plaintiff has defamed the Defendant and is therefore liable in defamation. Defendant counterclaimed against the Plaintiff for a sum of Fifty Thousand Ghana Cedis for defamation. The law on defamation is clear. A defamatory statement may be defined as one which tends to lower the Plaintiff in the estimation of right-thinking members of society generally. The Supreme Court in the case of Owusu-Domena v. Amoah [2015- 2016] 1 SCGLR 790 held at page 802 that for a Plaintiff in an action for defamation to succeed in his action, he must plead and lead evidence that there was a publication by the defendant; that the publication concerned the Plaintiff; that the publication was capable of a defamatory meaning in its natural and ordinary sense; alternatively or in addition to the third element, that the facts and/or circumstances surrounding the publication, it was defamatory of him, the Plaintiff; and that if the Defendant seeks the defence of qualified privilege or fair comment, that the Defendant was actuated by malice. The Plaintiff (Defendant herein) in a defamation action must establish the following elements: that the words were defamatory; that the words referred to the Plaintiff; and that the words were published (to at least one person other than the Plaintiff) by the Defendant (Plaintiff herein). See the cases of Sim v Stretch [1936] 2 ALL ER 1237 AT 1240 and Anas A. Anas v Kennedy Agyepong (2023) JELR 110378 (HC). No portion of the evidence adduced from Defendant’s side of the evidence or the entirety of the evidence on record proved any of the elements of defamation. Defendant failed to establish from the evidence adduced before this Court that the Plaintiff made a statement which has the tendency to lower him in the estimation of right-thinking members of our society, which LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE statement was made in reference to him and same made to another other than the Defendant himself. Having failed to prove his claims to the satisfaction of the Court, Defendant is therefore not entitled to his relief for damages for defamation. Conclusion Having regard to the totality of the evidence adduced and the evaluation done supra, this Court finds that the Plaintiff has not been able to discharge the burden of proof on him and accordingly his claims fail. The Defendant’s counterclaim also fails. AMA ADOMAKO-KWAKYE (MS.) MAGISTRATE Counsel Edmund Oppong Nana Effah, Esq. for Plaintiff. Foster Owusu, Esq. with Yvonne Y. Yalley for Defendant. LESLIE ANOKYE-YEBOAH V REV. EDWARD F. KWAKYE 26