Ali Vrs Wumbei & Another [2023] GHADC 461 (11 May 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON THURSDAY 11TH MAY, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN SUIT NO. A11/160/22 ALHASSAN ALI - PLAINTIFF AND 1. YAKUBU WUMBEI 2. AMIDU YUSSIF - DEFENDANTS JUDGMENT INTRODUCTION 1. This judgment relates to tort, assault and battery. 2. The plaintiff described himself as the former regent of Zakalyili. The defendant is the present chief of Zakalyili. According to plaintiff, 1st defendant caused 2nd defendant to assault and beat him. On 16th August, 2022 the plaintiff through his lawyer issued a writ against the defendants for the following reliefs: - 1 - a. An order for specific damages of GHS1,500.00 consequent to the defendants assault and battery on the plaintiff and family. b. Punitive or general damages for the fear, panic and the apprehension of loss felt by the plaintiff and as a result of defendants’ assault. c. Any other reliefs as the justice of the case may require. 3. Upon being served with the above writ, the defendants through their lawyer filed a Notice of Intention to Defend and grounds for defence on 31st August, 2022. In it they disputed plaintiff’s claim and counterclaimed as follows: a. Recovery of special damages of GHS500.00 being cost of 2nd defendant’s clothes damaged by the plaintiff. b. Damages for assault and battery. c. Costs. 4. The parties were ordered to file their respective witness statement. The case of either party is detailed below. PLAINTIFF’S CASE 5. The plaintiff recounted his ordeal in his witness statement filed on 6th September, 2022 as follows. That, after the demise of his father, he contested the chieftaincy title with the 1st defendant. He, however, lost it to the 1st defendant. However, the enskinment of 1st defendant, he heard rumours that 1st defendant had threatened to beat up his brothers on the day of the Fire Festival and that if any of his family members reacted, 1st defendant will cause his house to be burnt. Due to this, plaintiff instructed that none of his family members should attend the Fire Festival. According to the plaintiff, on 8th August, 2022 the day of the Fire Festival, one Shirazu (a sub-chief of 1st defendant) came to his house with other people claiming that during the fireworks at - 2 - the festival, he (Shirazu) was shot by Mohammed, one of plaintiff’s brothers. Plaintiff explained that those present on hearing the allegation of Shirazu were surprised quizzing that if Shirazu had been shot at closed range he should have visible wounds, but he had none. A commotion then ensued and according to plaintiff, one of his children reported to him that one of the people who accompanied Shirazu to the house had threatened that he, plaintiff, will not spend another night at Zakalyili. Plaintiff added that on the 9th August, 2022 he was summoned to the 1st defendant’s palace but had hint of being maltreated at the palace, so he did not honour the invitation. He, however, left to Tamale to attend a funeral. At the funeral he received a call from Mohammed asking whether he was alright and when he probed as to the cause of Mohammed’s concern, Mohammed informed him that 1st defendant had dispatched some men to beat him (plaintiff) for failing to honour the invitation. Platintiff stated that on the next day, 10th August, 2022, he left Zakalyili to Tamale with his wife and infant child. At Ambariya Junction, Vitting the 2nd defendant crossed him with a motorbike. According to plaintiff, 2nd defendant stated that he had been sent by 1st defendant to teach him a lesson. Plaintiff explained the 2nd defendant had come with seven other people, not known to him. Plaintiff stated that he was beaten severely, until his wife screamed for onlookers to come to his aid. Thereafter, he went to lodge a complaint at the police station, only to be told that a complaint had be lodged against him for firing a gun at the Fire Festival. He was, however, given a form for medical examination. 6. Plaintiff, was recalled after the close of his case, to tender the said medical form and prescription, but same was objected to as not being signed by a proper person and also that he (the plaintiff) was not in the capacity to speak to the content of the documents since they were not authored by him. The court upheld the objection and marked the documents as Exhibits R and R1, respectively. - 3 - 7. The plaintiff did not call any witness. DEFENDANTS’ CASE 1st Defendant 8. According to the 1st defendant, Yakubu Wumbei, he contested with the plaintiff for the Zakalyili skin but the plaintiff lost. As a result, the plaintiff was determined to make his reign ungovernable. He stated that the plaintiff intermittently fired gun shots into the atmosphere to instill fear and panic in the community. To him, plaintiff’s act was a way of registering his displeasure on losing the chieftaincy title. Due to this, he wrote Exhibit 2 to the National Investigation Bureau (NIB) for investigation. He added that the complaint was also predicated on the fact that the plaintiff would not honour his invitation. 1st defendant further contended that the allegations of the plaintiff were false and that he never instructed the 2nd defendant to attack the plaintiff. 2nd defendant 9. The 2nd defendant, Amidu Yussif, in his evidence also stated that he has never seen 1st defendant before, let alone to be instructed to beat up plaintiff. He added that the day he encountered the plaintiff was when plaintiff carelessly rode his motorbike into his lane. As a result, a brawl ensued to which the plaintiff tore his trouser (shorts) and shirt, marked as Exhibits 1 and 1A, respectively. He explained further that on that fateful day, there was no infant child. Again, it was the woman who was with plaintiff who rather encouraged plaintiff to beat him up. He contended that it was the plaintiff who provoked, brutalized and inflicted injuries on him. In effect, he counterclaimed for the reliefs earlier mentioned. - 4 - 10. The defendants did not call any witness. ISSUE FOR DETERMINATION 11. The only issue borne out of the facts is whether or not the either party is liable in battery and assault? BURDEN OF PROOF 12. Before I proceed to analyse the issues above, it important to explain the ingredients to be proved in a case of battery and/or assault. According to Prof. Kofi Kumado in his book, Introduction of Law of Torts in Ghana (2009) at page 11 he explained that battery is committed by intentional application of force to another by direct means or through an unwelcomed physical contact, irrespective of whether intent to harm or hostility is involved. The ingredients to be proved. therefore, are: a. that the defendant’s conduct/act caused the basis of the plaintiff’s complaint. For instance, in the case Covell v Laming (1808) 170 ER 1034 at 1035 the court held that the defendant that the force proceeded from him and the injury which the plaintiff sustained was the immediate effect of that force. See also Fagan v Metropolitan Police Commissioner [1969] 1 Q. B. 439 where the vehicle of the defendant passed on the plaintiff’s leg; b. that there must be physical contact with the person of plaintiff. That is, the contact can be person to person or through an instrument. In Cole v Turner [1704] 6 Mod. Rep. 149 it was held that the least touching of another in anger amounted to battery. See also Fagan v Metropolitan Police Commissioner (supra); c. that the defendant acted intentionally or negligently, see Milner v AG [1987] 1 Q. B. 237. In Williams v Humphrey, The Times, February 19, 1975 - 5 - defendant pushed the plaintiff into a swimming pool so that the plaintiff was injured when his foot hit the side of the pool; d. that the act complained of must be voluntary. Thus, the defendant must be in control, so in Gibbons v Pepper (1695) 91 ER 922 the court illustrated in its holding that if X rides a horse and Y whips the horse so that it runs away with X and runs over Z, Y not X is liable in battery. But if X, by spurring it, was the cause of the accident, then X is liable; e. that there was an act, but not an omission to act. Thus, liability in battery depends on an act, not a failure/omission/refusal to act, see Innes v Wylie (1884) 174 ER 801; and f. that the plaintiff did not consent to the physical contact. 13. Assault, on the other hand, is causing an emotional disturbance unaccompanied by external physical contact, see Kumado op. cit. p. 17. The law, i.e. the ingredients/requirements to be proved are the same as that of battery, except that in assault there is only apprehension of imminent physical contact. There is no need to prove physical contact. 14. Lastly, the principle governing the award of damages for cases of battery and/or assault is that battery and/or assault are actionable per se, thus no need to prove damage. Once the tort is acknowledged, damages are at large. Any consequential loss, e.g. physical injuries, is recoverable, if it is not too remote. However, the quantum of the damages depend on the proof of actual loss, see Kumado op. cit. p. 20. 15. It is essential to note that in civil cases, say Tort, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels - 6 - Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression “burden of persuasion” and in section 14 that expression has been defined as relating to, “…each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” See also ss. 11(4) and 12(1) & (2) of NRCD 323. 16. It is when the claimant has established an assertion on the preponderance of probabilities that the burden shifts onto the other party, failing which an unfavourable ruling will be made against him, see s. 14 of NRCD 323 and the case of Ababio v Akwasi III [1995-1996] GBR 774. 17. Also, in an action where there is a counterclaim, the law is that a counterclaim is a different action in which the defendant, as a counter claimant is the plaintiff and the plaintiff in the action becomes the defendant, see Sasu Bamfo v Sintim [2012] SCGLR 136 at 155. Explaining the burden of proof on a counter claimant, His Lordship Brobbey JSC (as he then was) in the case Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 stated at page 901 that, ‘a party who counterclaims bears the burden of proving his counterclaim on the preponderance of probabilities and will not win on the issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case.’ 18. From the above, the plaintiff herein is to prove all the elements enumerated above, on the preponderance of probabilities, in order for him to succeed. Failing which, a ruling will be entered against him. The defendant to prove his counterclaim in the same manner. ANALYSIS OF THE ISSUE - 7 - 19. I shall now deal with the sole issue of whether or not the either party is liable in battery and assault? As enumerated above, the plaintiff is the prove his case on the preponderance of probabilities that the defendants put him in real apprehension of fear and also beat him up. Similarly, the 2nd defendant is to prove his counterclaim that the plaintiff tore his trouser and shirt. 20. From the evidence, plaintiff contended that it was 1st defendant who instructed 2nd defendant to beat him. Hence on 11th August, 2022 that fateful day, the 2nd defendant crossed his lane at Ambariya Junction, Vitting with a motorbike and beat him up. He later reported the matter to the police and was referred to the hospital. 1st defendant, on his part, argued that he never instructed anybody to beat plaintiff up. Rather, it was plaintiff who sporadically fire gun shots in the Zakalyili community, causing fear and panic. As a result, he reported the incident to the NIB for investigation, see Exhibit 2. He maintained that the plaintiff is trying to make his reign ungovernable. 2nd defendant added that he was not instructed by 1st defendant to beat up plaintiff. His encounter with the plaintiff was at the Ambariya Junction, Vitting where he also alleged that plaintiff initially crossed his lane. When a brawl ensued, he was rather beaten up and his trouser and shirt torn, see Exhibits 1 and 1A. 21. The law is that he who asserts must prove and more particularly when his assertion is denied by the other party, see Faibi v State Hotels Corporation (supra). See also Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867. In Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 the Supreme Court rehashed the decision in Majolagbe v Larbi [1959] GLR 190 that once the averment is denied, the party does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated by his - 8 - witness, rather he proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true. 22. In the instant case, the plaintiff claimed that during the brawl, it was the 2nd defendant who said 1st defendant had instructed him to beat him (plaintiff) up. Yet, he did not call any of the witnesses of the incident to corroborate this. His wife would have been a proper witness considering the circumstances. The issue rather turned on ‘he said’, ‘he didn’t say’. Even when plaintiff contended that one of his children informed him that one of the people who accompanied Sharizu to the house had threatened that he (plaintiff) would not spend another night at Zakalyili, he still did not lead sufficient evidence to that effect. Hence, this court is not in the position to tell if that statement is still pending or otherwise. 23. Plaintiff further contended claimed it was the 2nd defendant and the seven people (unknown to him) who beat him up. He later went to the hospital and that he is praying the court for an award of special damages in the sum of GHS1,500.00. As explained earlier in this judgment, battery and/or assault is actionable per se, meaning that there is no need to prove damage. Once the tort is acknowledged, damages are at large. Any consequential loss, e.g. physical injuries, is recoverable, if it is not too remote. Hence, despite the fact that his medical form was rejected by this court, there is no doubt that a brawl ensued and he attended hospital, thereafter. This court is in the position to award damages, where appropriate. What is surprising, however, is that plaintiff is claiming special damages in the sum of GHS1,500.00, but did not lead any evidence to that effect. Neither did he particularize it. The law is that special damages must be plead and specifically proved, failing which same cannot be awarded. General damages, on the other hand, is that which the law would presume to be a natural or probable consequence of the defendant’s act. It arises by inference - 9 - of the law and therefore need not be proved by evidence, see the case of Dalmas Agency Ghana Ltd v Food Distribution International [2007-2008] 2 SCGLR 748 at 759, per Adinyira JSC (as she then was). See also Royal Dutch Airlines (KLM) v Framex [1989-1990] 2 GLR 623. 24. Alternatively, the 2nd defendant is also claiming that plaintiff tore his trouser and shirt as a result of the brawl. As such, he is asking this court for special damages in the sum of GHS500.00. He also did not particularize it or lead sufficient evidence on same. Also, 2nd defendant is asking for general damages for assault and battery, as well as costs. 25. From the evidence, it appears to me that a brawl ensued of which the plaintiff was beaten and 2nd defendant’s attire was torn. What do you expect from a fight? Definitely, either party will throw some punches and cause damage to the person or property. If the plaintiff had carelessly driven into 2nd defendant’s lane, a reasonable person like the 2nd defendant should have reported to the police about the conduct of the plaintiff. He should not have crossed the plaintiff to fight it out. Similarly, if the plaintiff was in a fear of imminent physical contact by the 1st defendant, he should have sought legal redress to it. The 2nd defendant, also, did not lead any evidence with regards to assault. In effect, I therefore find that a brawl ensued, which should not have happened. 26. On the totality of the evidence, I am of the opinion that a fight ensued between the plaintiff and the 2nd defendant. There was no sufficient evidence that either party assaulted each other. Also, there is no evidence with regard to a pending assault, to which this court is to injunct/prohibit either party and/or award damages. Also, I am unable to award the special damages claimed by the plaintiff and 2nd defendant since - 10 - there is no sufficient evidence to that effect. Accordingly, the case of either party is dismissed as having no merit. - 11 - 27. Either party is to bear his own costs. H/W D. ANNAN ESQ. [MAGISTRATE] References: 1. ss. 11(4), 12(1) & (2) and 14 of the Evidence Act, 1975 (NRCD 323) 2. Covell v Laming (1808) 170 ER 1034 at 1035 3. Fagan v Metropolitan Police Commissioner [1969] 1 Q. B. 439 4. Cole v Turner [1704] 6 Mod. Rep. 149 5. Gibbons v Pepper (1695) 91 ER 922 6. Milner v AG [1987] 1 Q. B. 237 7. Williams v Humphrey, The Times, February 19, 1975 8. Innes v Wylie (1884) 174 ER 801. 9. Faibi v State Hotels Corporation [1968] GLR 471 10. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 11. Ababio v Akwasi III [1995-1996] GBR 774 12. Sasu Bamfo v Sintim [2012] SCGLR 136 at 155 13. Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 14. Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 15. Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 16. Majolagbe v Larbi [1959] GLR 190 - 12 - 17. Dalmas Agency Ghana Ltd v Food Distribution International [2007-2008] 2 SCGLR 748 at 759, 18. Royal Dutch Airlines (KLM) v Framex [1989-1990] 2 GLR 623. 19. Introduction of Law of Torts in Ghana (2009) by Prof. Kofi Kumado - 13 -