HASSAN & 2 OTHERS VRS JUBUNI (UW/WA/DC/A5/03/2021) [2023] GHADC 1246 (19 October 2023)

IN THE DISTRICT COURT, WA HELD ON THURSDAY, 19TH DAY OF OCTOBER, 2023 BEFORE HIS WORSHIP, MAXWELL M. TITRIKU DISTRICT MAGISTRATE. SUIT No: UW/WA/DC/A5/03/2021 1. ALHAJI ISSAKA HASSAN .................... PLAINTIFFS 2. SEIDU ABUBAKARI 3. ADAMS YAKUBU V NUURA JEBUNI ................... DEFENDANT PARTIES PRESENT DOMINIC TUOBESAANE PAAGA, ESQ., FOR PLAINTIFFS DANIEL B. BEWEL, ESQ., FOR THE DEFENDANT JUDGMENT The Plaintiffs, on 18th day of June, 2021 filed writ of summons against the Defendant, and claimed for: a. A Declaration that, the publications made by the Defendant to Mr. Kamprinye and his Son at Kongolemo and at various other occasions and places were defamatory of the Plaintiffs and their family. b. An order directed at the Defendant to make a public apology and a retraction in media in respect of the defamatory statements he published against the Plaintiffs and their family. c. An order or perpetual injunction restraining the Defendant, his privies, agents, successors, assigns, etc. from ever making any false statements or in any way defaming the family or any of its members. d. An order directed at the Defendant to pay to each of the Plaintiffs, a sum of Seventy Thousand Ghana Cedis (GH¢70,000.00) to the Kanjodunia (a.k.a Suroniipa) family in damages for defamation. e. Costs, including Solicitor’s charges. The Defendant, however pleaded “Not Liable” after the contents of Plaintiffs’ claims were read and explained to him. CASE FOR THE PLAINTIFFS In his evidence-in-chief, the 2nd Plaintiff (Seidu Bukari), resident at Sugu Naa’s Palace, Naaha, in the Wa West District, stated that, he acquired knowledge of the facts as a result of his personal involvement in the matters which led to the commencement of this suit. He said, he knew the Defendant, who also hails from Naaha, in the Wa West District. According to him, the 1st Plaintiff is the head of his family (i.e. Kanjodunia (aka Suroniipa) family of Naaha in the Wa West District of the Upper West Region. He said the 1st Plaintiff took over as head of the said family from the late Naa Adams Hassan, who until his death on 28th April, 2020, was also the Chief of Kongolemo, and the 3rd Plaintiff is also a member of the Kanjodunia family. He said, the Defendant published various false statements about the Kanjodunia family sometime in May, 2021, which statements exposed the family to hatred, contempt and ridicule by members of Kongolemo community, thereby defaming the Kanjodunia family. He said the false statements were published by the Defendant variously to Mr. Kamprinye and his Son (Joshua), and to some community members of Kongolemo at Kongolemo. The 2nd Plaintiff who gave evidence on his own behalf and on behalf of the 1st and 3rd Plaintiffs, finally stated that, the false statements were to the effect that, i. ii. iii. iv. v. vi. vii. The Kanjodunia family is made up of only useless people who have not been brought up properly and also behave irrationally. The late head of the Kanjodunia family (Naa Adams Hassan) who doubled as the Chief of Kongolemo, was a fraudster who squandered cattle belonging to the entire community, sold community lands for his personal use without accounting to the community, and died leaving behind huge debts. The late head of the Kanjodunia family sold community lands in concert with his Son, the 3rd Plaintiff herein. The 1st Plaintiff has no use to society The 1st Plaintiff is very violent, a trouble maker and has been fighting people all over the place, since his return from Nigeria. The 2nd Plaintiff has no use to humanity The 3rd Plaintiff, acting in concert with his late father, i.e. the late Chief of Kongolemo, sold community lands for their personal use without accounting to the community. viii. The 3rd plaintiff used proceeds of the community lands sold by him and his father to put up a provision store at Poyentanga. According to the 2nd Plaintiff, he became aware of all these statements made by the Defendant during his visit to Kongolemo sometime in 2021 together with Saaka Haruna and Nuura Jebuni, at the behest of the 1st Plaintiff and other Principal members of the Kanjodunia after the family heard that, the Defendant has been visiting Kongolemo and meeting with some members of the community and spreading false statements about the Kanjodunia family. He said during his visit to Kongolemo, Mr. Kamprinye’s Son (Joshua) played back an audio recording (Exhibit “SB”) he (Joshua) made out of the statements made by the Defendant against Mr. Kamprinye, his Son, Joshua and some members of the community of Kongolemo, which he (the 2nd Plaintiff) obtained from Joshua. The 2nd Plaintiff further stated that, the defamatory statements published by the Defendant have so far been circulating in the social media; thus, exposing the family members and the Plaintiffs in particular to hatred and ridicule in the community. He said, by reason of the defamatory statements made by the Defendant, the good name, image and memory of the late Chief of Kanjodunia family has been tarnished, to the disgrace of his family members, hence this action. End of Evidence. Cross-Examination of 2nd Plaintiff by Counsel for the Defendant: Q: Your family once contested with the Defendant’s family for the skin of Kongolemo? A: Yes Q: And in that contest, your gate lost to the Defendant’s gate? A: Yes, it is so. Q: So, after you lost the said contest that you adopted an alternative means to discredit the Defendant? A: Not true, this matter started long ago. Q: Are you aware that, the same Joshua secretly recorded you and sent to the Defendant? A: Yes, it is true. Q: Defendant never stated the words stated in paragraph 7 of your witness statement? A: He (Defendant) stated so. Thereafter, the Plaintiffs called one Witness (PW1): It would be re-called that, at the start of the case of Plaintiffs witness (PW1) on 12/01/2023, PW1 attempted tendering an audio recording (Exhibit JZ), but this was objected to, by Counsel for the Defendant. After oral submissions made by both Counsels on the objection, the Court finally delivered a ruling on the admissibility of the said Exhibit JZ, dated 26th day of January, 2023, and ordered as follows: “The secrete recording of the conversation between PW1 and the Defendant (Exhibit JZ), which was a breach of privacy provisions of the 1992 Constitution of Ghana under Article 18 (2), is therefore inadmissible, and hereby expunged from the evidence in this case.” Thereafter, the case proceeded. PW1 In his evidence-in-chief, PW1 (Joshua Zengnaa), resident at Kongolemo, in the Wa West District, stated that, he acquired knowledge of the facts as a result of his personal involvement in the matters which form the basis of this suit. According to him, he knew all the parties in this suit, and that, sometime in May, 2021, the Defendant came to their house and made certain statements about the Plaintiffs and the Plaintiffs’ family to him (PW1) his father to the effect that, The Plaintiffs’ family is made up of only useless people, who have not been brought up properly and also behave irrationally, The late head of the Plaintiffs’ family (Naa Adams Hassan), who doubled as the Chief of Kongolemo was a fraudster, who squandered cattle belonging to the entire Kongolemo Community, sold Community lands for his personal use without accounting to the community, and died leaving behind huge debts. The late head of the Plaintiffs’ family sold community lands in concert with his Son, the 3rd Plaintiff herein. The 1st Plaintiff has no use to society The 1st Plaintiff is very violent, a trouble maker and has been fighting people all over the place, since his return from Nigeria. i. ii. iii. iv. v. vi. vii. The 2nd Plaintiff has no use to humanity The 3rd Plaintiff, acting in concert with his late father, i.e. the late Chief of Kongolemo sold community lands for their personal use without accounting to the community, viii. The 3rd Plaintiff used proceeds of the community lands sold by him and his father to put up a provision store at Poyentanga. PW1, finally stated that, he (PW1) recorded the above statements (Exhibit JZ) made by the Defendant and subsequently gave same to the 2nd Plaintiff. End of Evidence. Cross-Examination of PW1 by Counsel for the Defendant: Q: The alleged recording covers the conversation in a meeting between the Defendant and your father herein? A: Yes, it was between the two. Q: You agree with me that, anyone who comes to see your father in a capacity as Tindana, any information he gave was privilege or confidential? A: Yes. Q: And you also sincerely recorded the conversation between Defendant and 1st Plaintiff when they went to see your father? A: I do remember so. Q: Upon recording these separate conversations between your father and Plaintiffs to the Defendant, and also the one between the Defendant and your father to the Plaintiffs? A: I do remember so. Q: Was your father aware (before he died) that, you gave a statement in support of Plaintiffs’ case in this Court? A: Yes, he was aware, but he was not happy of me giving statement to support Plaintiffs, and I confirmed to him (my father) that, I erred. Q: Your father was not happy because as a respectable Tindana, it was expected to keep conversations between him and others confidential? A: Yes, I agree, that made him not to be happy. The Plaintiffs, thereafter closed their case. After close of Plaintiffs case, Counsel for the Defendant, then announced to the Court that, his client, the Defendant will not adduce any evidence or testify in the case, hence, case closed for Judgement. In the Supreme Court case of: ARMAH v HYDRAFOAM ESTATES LTD [2013-2014] 2 SCGLR 1551 @ 1567, it was held per Benin JSC, as follows: “A court has no duty to call upon any party to testify in the case; the court acts as an umpire and only hears such evidence as the parties will proffer; whether the parties will testify or not is none of the court’s business. Indeed, for a court to insist that, a party should testify will amount to the Judge descending into the arena of conflict................” ........ Accordingly, the Plaintiffs bear the burden to establish that, the alleged defamation statements were published by the Defendant. In the Supreme Court case of: TEI & ANOR v CEIBA INTERCONTINENTAL [2017- 2018] 2 SCGLR 906 @ 919, Pwamang, JSC, it was held as follows: “It must be remembered that, the fact that a Defendant does not appear to contest a case does not mean that the Plaintiff would be granted all that he asks for by the Court. The rule in civil cases is that, he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the Defendant at the trial. The absence of the Defendant will aid the Plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim.” • JOHN DRAMANI MAHAMA v ELECTORAL COMMISSION & NANA ADDO DANKWA AKUFFO-ADDO, Writ No. J1/5/2021, Dated 2021-02-16, Applied. • BARON v LARBI [1962]1 GLR 168, Ollennu J (as he then was), Applied. ISSUES At the close of the evidence adduced by Plaintiff, the legal issues that emerged for determination by this Honourable Court were: i. WHETHER OR NOT THE DEFENDANT HAS PUBLISHED FALSE STATEMENTS AIMED AT DEFAMING THE PLAINTIFFS AND THEIR KANJODUNIA FAMILY. ii. WHETHER OR NOT PLAINTIFFS ARE ENTITLED TO THEIR CLAIM. At the close of Plaintiffs case, the Court ordered addresses from both Counsels. Whereas Counsel for the Defendant filed his address on 05/10/2023, Counsel for the Plaintiffs however, announced to the Court that, he would not be able to address the Court. ANALYSIS OF PLAINTIFFS’ EVIDENCE. In all civil suits, the primary burden of proof, that is, the duty of producing evidence in support of averments necessary for the Court’s decision, is upon the party who made the averment. The primary burden of proof is usually on the Plaintiff because, he made the primary averments when he instituted the action. In the Supreme Court case of: ABABIO v AKWESI III [1994-95] 2 GBR 774-783, it was held per Aikins JSC, as follows: “The general principle of law is that, it is the duty of the Plaintiff to prove his case, i.e. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scale in his favour, when on a particular issue, the plaintiff leads some evidence to prove his case. If the defendant succeeds in doing this, he wins, if not he loses on that particular issue.” • DZAISU & ORS v GHANA BREWERIES LTD [2007-2008] SCGLR 539, SC, Applied • EVIDENCE ACT, 1975 (NRCD 323), SECTION 14, Applied. In other words, in explaining the principles relating to the duty to produce evidence, the Learned S. A Brobbey stated at page 31 of his book entitled “ESSENTIALS OF THE GHANA LAW OF EVIDENCE”, thus; “This literally means “The proof lies upon him who affirms, not on him who denies, since by nature of things, he who denies a fact cannot produce proof.” In the instant case, evidence showed that, the 2nd Plaintiff, who testified on his behalf and on behalf of 1st and 3rd Plaintiffs was not present at the time the alleged recording was made, as he (2nd Plaintiff) stated in his evidence-in-chief as follows: “I say that, during my visit to Kongolemo, Mr. Kamprinye’s Son, Joshua played back audio recordings he made......... I obtained this audio recordings from Joshua, the Son of Mr. Kamprinye.” ......... AND, in cross-Examination, 2nd Plaintiff answered the following questions among others from Counsel for Defendant: Counsel : You alleged that, the purported defamation statement was made by Defendant to one Joshua and his father called Mr. Kamprinye? 2nd Plaintiff : Yes Counsel : You last admitted that, you are not aware that, Joshua secretly recorded the conversation and sent same to his father? 2nd Plaintiff : Yes, it is true. Counsel : So, I will be right to say that, you got to know about this statement from what Joshua and his father told you? 2nd Plaintiff : Yes, I heard the rumor and I followed up to confirm. Counsel : These statements, I believe were not made in your presence? 2nd Plaintiff : Yes, I was not there. .......... These averments clearly showed that, 2nd Plaintiff acted on Hearsay. In the Court of Appeal case of: LOGS & LUMBER LTD v OPPONG [1977] 2GLR 263, it was held as follows: “Hearsay evidence was inadmissible per se, and could not form the basis of any judgment, and if such inadmissible evidence was received with or without objection, it was the duty of the judge to reject it......................as it was the duty of the courts to arrive at their decision upon legal evidence only.” In another development, it was interesting to know that, the 2nd Plaintiff could not speak to the content of the alleged recording, as he (2nd Plaintiff) answered the following questions from Counsel for the Defendant: Counsel : So, the statement allegedly in paragraph 7 of your evidence-in-chief are not the exact words which were altered in the audio, but it is the effect you are putting on those words? 2nd Plaintiff : I don’t know the exact words written down. I explained what I hear to my lawyer. ........... PW1, the material witness, who made the alleged recording, also answered the following questions among others from Counsel for the Defendant: Counsel : It is your case that, you recorded a conversation between the Defendant and your father? PW1 : Yes. Counsel : You agree with me that, when you recorded the conversation, both the Defendant and your father were not aware that you recorded them? PW1 : Yes. Counsel : You claim the Defendant defamed the Plaintiffs in the conversation between Defendant and your father who was alive at the time? PW1 : Yes, but I did not know that, there were defamatory words in the recording. Counsel : So, you can be able to tell the Court the exact words Defendant used in the recordings? PW1 : I can’t tell. In light of the foregoing, it is evident that Plaintiffs have no probable cause of action against the Defendant. In another development, the 2nd Plaintiff further stated in Paragraph 10 of his evidence- in-chief as follows: Paragraph 10: “I say that, the defamatory statements published by the Defendant have so far been circulating in the social media, thus, exposing the family members and the Plaintiffs in particular to hatred and ridicule in the community.” ............ Interestingly, this averment by the 2nd Plaintiff could not also be proved by the Plaintiffs. • ABDUL MALIK KWAKU BAAKO v KENNEDY OHENE AGYAPONG, SUIT NO. GJ/51/2019, Applied. The standard of proof is proof on the preponderance of probabilities. To prove on the balance of probabilities or preponderance of probabilities, means that, to create a 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. • KLAH v PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, Applied. • EVIDENCE ACT 1975 (NRCD 323), SECTIONS 10 (1), 12 (1)(2), & 14, Applied. In the Supreme Court case of: JASS CO. LTD & ANOR v APPAU & ANOR [2009] SCGLR @ 270-271, it was held per Dotse, JSC, as follows: “The burden of proof is always on the plaintiff to satisfy the court on the balance of probabilities in cases like this. Thus, where in a situation, the defendant has not counter-claimed; and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claim would be dismissed.” In the case before this Honourable Court, the Defendant did not file any counter-claim, hence, the onus was on the Plaintiffs to prove their case, but Plaintiffs’ action woefully failed to meet the threshold of a defamatory action. Accordingly, on the balance of probabilities, I hold that, the averments contained in paragraphs 5, 6, & 8 of Plaintiffs’ statements of claim filed on 18/06/2021, which were repeated in the evidence-in-chief of the Plaintiffs, though capable of defamatory meaning, were not proven to have been made by the Defendant, hence, there is therefore no merit in the evidence adduced by the Plaintiffs. I hereby dismissed the claim of the Plaintiffs. I assess the costs of this action at Ten Thousand Ghana Cedis (GH¢10,000.00), against the Plaintiffs in favour of the Defendant. .................................................. MAXWELL M. TITRIKU DISTRICT MAGISTRATE WA, UW/R, 19/10/2023. 13