NOJAH VRS GMEBGMEB (NR/BB/DC/A2/12/2023) [2023] GHADC 1245 (14 September 2023)

IN THE DISTRICT COURT HELD ON THURSDAY THE 14TH DAY OF SEPTEMBER, 2023 AT BIMBILLA BEFORE HIS WORSHIP PETER KOBBLAH AMETSOWU. SUIT NO. : NR/BB/DC/A2/12/2023 NJASAN NOJAH OF KALEGU } PLAINTIFF VRS. YAJAH GMEBGMEB OF KALEGU } DEFENDANT INTRODUCTION JUDGMENT The parties to this suit are patrilineal cousins who were living peaceably in the same community. Both are farmers and depend, to a large extent, on their farm produce for their livelihoods. They sometime do communal labour in their respective farms as alleged by the Plaintiff. I presume this harmonious relationship has existed between them for years until the death of Abena, the wife of the Defendant’s younger brother (Mbayaa). This led to unsubstantiated accusation against the Plaintiff being a wizard and the person who caused the death of Abena. This did not end there but continued with threat of death of the plaintiff or the destruction of Plaintiff’s yam barn by Defendant as stated in plaintiff’s Writ of Summons. On the 3rd day of March, 2023 the Plaintiff issued a Writ of Summons against the Defendant out of the registry of this court and claimed for the following reliefs: 1. An order compelling the Defendant to pay an amount of GHȼ30,000.00 being the cost of Plaintiff’s 15,000 tubers of yams including yam sets Defendant burnt at Kalegu. 2. Cost. To this the Defendant pleaded not liable to the claim and/ or reliefs on the 13th day of March, 2023 before a differently constituted magistrate. PLAINTIFF’S CASE. The Plaintiff in his Writ of Summons and Summary of Subject Matter of Claim pleaded destruction of his 15,000 tubers of yams including yam sets which cost GHȼ30,000.00 when same were set ablaze by his own cousin (Defendant herein). Plaintiff in his Summary of Subject Matter of Claim pleaded that on 18th day of February, 2023 the Defendant accused him of being a Wizard, and responsible for the death of Abena. Also, Plaintiff averred that he was chased out of the village. In his Witness Statement Plaintiff maintained that he was accused of being a wizard and responsible for the death of Abena. Plaintiff stated that the accusation was made in the midst of a crowd when the corpse was ready for burial but Defendant and his younger brother halted the burial process and announced that Plaintiff is a wizard. Plaintiff also put in evidence that after the said accusation a soothsayer was consulted who confirmed that Plaintiff is responsible for the death of Abena. According to Plaintiff this confirmation by the soothsayer made Defendant threaten to either kill Plaintiff or burn down Plaintiff’s yam barn. The last paragraph of Plaintiff’s Witness Statement Plaintiff stated that the Defendant came to their house and informed Plaintiff that he was going to burn down Plaintiff’s yam barn. And true to the Defendant’s word Defendant and his brothers burnt down the yam barn when Plaintiff was standing helplessly watching them from a distance. In support of his case Plaintiff called two witnesses. TAFIN NOJAH (PW1) elder brother of Plaintiff testified that when Plaintiff was accused Defendant’s father invited him and told him the confirmation by the soothsayer to the effect that Plaintiff is a wizard and responsible for Abena’s death. PW1 stated that he pleaded with the Defendant’s father for amicable settlement of the issue. He went on to say that Defendant who was around interrupted their discussion and said “He will kill Plaintiff”. PW1 also said Defendant came to their house where he and Plaintiff live and said he will go with his (defendant’s) brothers to Plaintiff’s farm and burn down Plaintiff’s yam barn, and PW1 was warned not to stop Defendant and his brothers, if they do Defendant will kill Plaintiff. Further, TIDAKIBI NOJAH (PW2) testified that while waiting for the corpse of Abena to be buried he heard that his son (Plaintiff) was responsible for abena’s death. PW2 stated that one week later Defendant came to their house and threatened to kill Plaintiff for the fact that Plaintiff is a wizard and responsible for the death of Abena. PW2 further stated that the Defendant’s action in their house made him run into his room. PW2 said in his room he overheard Defendant in annoyance that he was going to burn Plaintiff’s yam barn. Subsequently, defendant went and burnt down Plaintiff’s yam barn. DEFENDANT’S CASE. In his Witness Statement Defendant confirmed the death of his younger brother’s wife Abena at Bimbilla Government Hospital. But Defendant denied the allegation that he accused Plaintiff of being a wizard nor responsible for the death of Abena. Defendant also said that he does not know Plaintiff’s farm let alone burn Plaintiff’s yam barn. Defendant urged the court not to take plaintiff’s claim seriously because Plaintiff is not truthful to the court. Defendant in turn called three witnesses including KOFI GMAKIGMABE (DW1), NTAADIIN GMAKIGMABE (DW2) and AKUA GMAKIGMABE (DW3) in support of his defence. But DW3 was not able to avail herself for cross examination due to ill health, hence her statement filed on 17/03/2023 will not be considered. DW1 in his statement said when the sad news of the death of Abena got to them, he was asked to go and assist the Defendant convey the corpse to the house for burial. He further said that the corpse was buried the next day without any problem. He went on to say that no soothsayer has mentioned the name of the Plaintiff of being responsible for Abena’s death. That Defendant has never said Plaintiff is a wizard and has not burnt Plaintiff’s yam barn. Finally, DW1 said after the burial he and the Defendant left for another funeral in a village called Joanayili. DW2 in his statement said prior to the death of Abena she was sick, and was rushed to the hospital by Defendant but died the same day whiles receiving treatment. DW2 stated that DW1 was asked to go and help the Defendant convey the corpse home for burial. Subsequently, the following day the corpse was buried. DW2 further stated that he has not witnessed or heard that Defendant accused Plaintiff of being a wizard and responsible for Abena’s death. And finally stated that Defendant has never burnt Plaintiff’s yam barn. ISSUES FOR DETERMINATION. The court after perusing the processes filed by both parties concluded on the following issues for determination: 1. Whether or not the Defendant accused Plaintiff of being a wizard and responsible for the death of Abena. 2. Whether or not the Defendant threatened to kill Plaintiff or in the alternative burn Plaintiff’s yam barn. STANDARD OF PROOF, EVALUATION OF THE EVIDENCE AND ANALYSIS. In resolving the issues identified above the court will have to look at both the factual evidence by both parties vis a vis the applicable laws. The issues are determined when the party with the burden to establish the existence or nonexistence of an allegation is able to produce credible evidence to that effect. This position of the law is provided under section 14 of the Evidence Act, 1975 (NRCD 323) as follows: “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” The law as laid down by statutory provisions in the Evidence Act, 1975 (NRCD 323) requires that the burden of producing evidence by the parties as well as the burden of persuasion is to be determined on the preponderance of probabilities. This is provided under section 12 (1) of NRCD 323 as follows: “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” Subsection (2) of section 12 of NRCD 323 defines what preponderance of probabilities means as follows: "Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” The above statutory requirement of proof by a party who avers positively in his writ and /or pleadings has been given judicial pronouncement in the case of SERWAH VRS. KESSE [1960] GLR 227 at 228, SC where the court held that: ” …In title cases as in all civil cases the preponderance of probability in favour of a party may constitute sufficient ground for a judgment in favour of that party.” The law on proof is stated in the case of OKUDZETO ABLAKWA (N0.2) VRS ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at page 867 where the court stated that: “If a person goes to court and makes an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…” In resolving (Issue 1) that is, whether or not the Defendant accused the Plaintiff of being a wizard and responsible of the death of Abena, the court will consider critical facts raised by the Plaintiff in respect of this issue. In his Witness Statement Plaintiff maintained that he was accused of being a wizard and responsible for the death of Abena. Plaintiff stated that the accusation was made in the midst of a crowd when the corpse was ready for burial but Defendant and his younger brother halted the burial process and announced that Plaintiff is a wizard. Plaintiff also put in evidence that after the said accusation a soothsayer was consulted who confirmed that Plaintiff is responsible for the death of Abena. PW1 in his Witness Statement confirmed the allegation made against the Plaintiff and stated that he was invited by the Defendant’s father who told him what the soothsayer had revealed to the effect that Plaintiff is responsible for the death of Abena. PW2 also stated that one week later Defendant came to their house and threatened to kill Plaintiff for the fact that Plaintiff is a wizard and responsible for the death of Abena. The Defendant and his witnesses all denied this allegation levelled against Plaintiff being a wizard and responsible for the death of Abena. Ironically, Defendant evasively failed to respond to answers given by the Plaintiff when Defendant had the opportunity to cross examine Plaintiff in respect of the allegation that Plaintiff is a wizard and responsible for the death of Abena. Related to this allegation was the confirmation by the soothsayer that Plaintiff is responsible for the death of Abena as alleged by Plaintiff and PW1. Defendant did not challenge and /or refute the assertion that his father invited and disclosed to Pw1 what the soothsayer said. This is what ensued between the Defendant and PW1 on the 18th day of April, 2023: Qn. Can you tell court the day that my father called you and told you the soothsayer said it was Plaintiff who killed Abena? Ans. I cannot remember the date. Qn. Did my father send a chief or he called you on phone? Ans. He sent a child to call me. Qn. How many people were there when the child came and called you? Ans. We were many, those I remember are two of my brothers and Plaintiff’s mother. Defendant was more interested in the date that his father called PW1, the person his father sent and persons who were around when Defendant’s father sent for PW1. This establishes that, in fact, Defendant’s father indeed invited PW1 and possibly told him what the soothsayer said about Plaintiff and the death of Abena. It also establishes the fact that Plaintiff was accused of being a wizard and responsible for the death of Abena. Flowing from the evidence put forward by the parties in respect of issue 1, it is so obvious to the court that the Defendant indeed accused the Plaintiff of being a wizard and responsible for the death of Abena. I hereby resolve the first issue being considered in favour of the Plaintiff. On issue 2; Whether or not Defendant threatened to kill Plaintiff or burn Plaintiff’s yam barn, Plaintiff wrote that the confirmation by the soothsayer made Defendant threaten to either kill Plaintiff or burn down plaintiff’s yam barn. The last paragraph of plaintiff’s Witness Statement Plaintiff stated that the Defendant came to their house and informed Plaintiff that he (Defendant) was going to burn down Plaintiff’s yam barn. Plaintiff concluded that he was standing at a distance helplessly watching the Defendant and his brothers when Defendant removed a match and set ablaze Plaintiff’s yam barn. The allegation of threat of death or burning down of Plaintiff’s yam barn was corroborated by PW2. At paragraphs 4 and 5 of his Witness Statement these are his statements: 4. That after one week, Defendant came to our house and threatened to kill Plaintiff and that Plaintiff is a wizard and responsible for the death of Abena. 5. That, Defendant’s action on that day made me run into the room, whilst in the room I overheard him saying in annoyance that he (Defendant) was going to burn the yam barn of the Plaintiff. Earlier in his Summary of Subject Matter Plaintiff stated that he was chased out of the village when he was accused of being a wizard. The consequence of this accusation was the alleged burning of Plaintiff’s yam barn. Plaintiff subsequently lodged a formal complaint with the police, Bimbilla. This came up on the 16th day of August, 2023 during cross examination of DW2 as follows: Qn. Put: That the Defendant came to my house, threatened to kill me and further said if he (Defendant) is not able to kill me, he will burn my yam barn. Ans. I did not witness my younger brother burning your yam barn. Qn. When this matter came up I reported it to the Police who later invited the Defendant, if he did not burn my yam barn why did he not go to the Police? Ans. We came to the Police in the company of the Assemblyman (Samuel Deekan). Qn. Put: that you are not being truthful to the court. I reported the matter to the Police. The Police would have called me to come when you allege to have honoured the invitation by the Police. Ans. I and the Defendant came to the Police. Deducing from the above, every reasonable man will conclude that the Defendant burnt Plaintiff’s yam barn that was why Plaintiff lodged a complaint with the Police, Bimbilla for investigations, and possible prosecution of the Defendant. And that the Defendant executed his intention when he was unable to kill the Plaintiff. Again, throughout his evidence Defendant never denied the allegation against him that he threatened to kill the Plaintiff. This will be deemed to have been admitted by the Defendant. In the case of QUAGRAINE VRS. ADAMS [1981] GLR 599, CA, it was held that: ”Where a party makes an averment and his opponent fails to cross examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross examine.” Defendant dwelt on the burning of the yam barn allegation and diametrically denied that he does not even know neither the Plaintiff’s farm nor his elder brother’s farm which shares boundary with that of the Plaintiff’s farm. This is part of what transpired on Tuesday the 18th day of April, 2023 when Defendant cross-examined the Plaintiff: Qn. If you see someone burning your yam barn what are you supposed to tell him? Ans. You were part of a mob and I was out numbered. Qn. Have you ever seen me in your farm? Ans. You know where my farm is and we both pass through to your elder brother’s farm for communal farming. Qn. I do not know my elder brother’s farm. Ans. I have been to your brother’s farm with you and we pass through my farm. Qn. Can you name the other people in the mob? Ans. I cannot mention their names but your elder brother’s children went with you and you brought out the matches and set the barn ablaze. It baffles the mind of the court that the Defendant does not know his own elder brother’s farm which shares boundary with the Plaintiff’s farm. Even though the Defendant denied burning Plaintiff’s yam barn, he then betrayed his denial and asked this question: “can you name the other people in the mob?”, this question impliedly will suggest that the Defendant was in Plaintiff’s farm and indeed burnt the barn stored with yams. It is also worth to note that Plaintiff and Defendant have lived in the same community (Kalegu) for years, and can identify each other from a reasonable distance without any difficulty. The Plaintiff cannot possibly see another person in his farm and sue the Defendant for setting ablaze Plaintiff’s yam barn. Based on the evidence adduced by the parties especially, Plaintiff relating to the threat of death or in alternative burning down Plaintiff’s yam barn, and subsequent burning of Plaintiff’s yam barn is so weightier. Aside this, Plaintiff formally lodged complaint with the Police, Bimbilla, which is yet to see the light of day by prosecuting the Defendant. The police could have charged the Defendant under section 172 (1) (b) of the Criminal Offences Act, 1960 (Act 29), and they are encouraged to do so without fear or favour. This evidence being so weightier and convincing will tilt the scale of justice in favour of Plaintiff, and so I resolve this issue 2 in favour of the Plaintiff. CONCLUSION. The court, after evaluation and analysis of evidence adduced by both parties and their witnesses, has found that the Plaintiff’s evidence as weighed vis a vis that of the Defendant carried much weight. Thus, the probative value placed on Plaintiff’s evidence, in totality, is higher and weightier. Plaintiff’s evidence against that of the Defendant has led the court to these conclusions on preponderance of probabilities: the existence of the narrations put forward by the Plaintiff and his witnesses is more probable than its non- existence. The burning of the Plaintiff’s yam barn and yam sets is irresistibly traceable to the Defendant after the death of Abena. I had the opportunity to observe the demeanour of the Defendant’s witnesses (DW1 and DW2) when they were cross examined by the Plaintiff. They were both evasive and it took the intervention of the court before they could answer simple questions that required yes or no answers. The evasive demeanour of these witnesses indicates that they have not been truthful to the honourable court. The court will finally conclude that the Defendant, first and foremost, accused Plaintiff of being a wizard and responsible for the death of Abena. It was the Defendant in the company of other persons who set ablaze Plaintiff’s yam barn. Hence, Plaintiff’s evidence constitutes sufficient ground which tilts the scale of justice in his favour for judgment. Consequently, the court makes the following orders in favour of the Plaintiff against the Defendant: i. Defendant is ordered to pay to the Plaintiff an amount of GHȼ30,000.00 being the cost of 15,000 pieces of yam including yam sets Defendant set ablaze in Plaintiff’s farm. ii. Cost of GHȼ2,000.00 is awarded in favour of thePlaintiff against the Defendant. HIS WORSHIP PETER KOBBLAH AMETSOWU DISTRICT MAGISTRATE COURT