NAKARTE VRS BELLO & ANOTHER (A2/29/2023) [2023] GHADC 1136 (6 November 2023)

IN THE DISTRICT COURT HELD AT DAMBAI ON MONDAY 6TH NOVEMBER, 2023 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE SUIT NO. A2/29/2023 PLAINTIFF DEFENDANTS MALIBE NAKARTE OF BANDA VRS 1. CHINDO BELLO OF BANDA 2. NNOWEN NAKOJA OF BANDA PARTIES PRESENT JUDGEMENT The Plaintiff per his amended writ of summons claims against the Defendants, the following reliefs: (a) Recovery of the sum of GH¢12,120.00 being the cost of Plaintiff’s 791 tubers of yam the 1st Defendant’s cattle caused damage to. (b) General damages of GH¢1,000.00 (c). Costs. The Defendants denied liability of all the claims and stated that they had a reasonable defence. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that he is a farmer at Banda in the Krachi Nchumuru District, the 1st Defendant is a cattle owner whilst the 2nd Defendant is also a farmer in Banda. According to Plaintiff on19th January, 2023 the 1st Defendant’s herdsman negligently let loose 1st Defendant’s cattle and they strayed into Plaintiff’s farm and caused damage to Plaintiff’s 791 tubers of yam and 70 cassava plants. According to Plaintiff his enquiry later revealed that it was 2nd Defendant who arrested Plaintiff’s herdsman and so the cattle strayed into Plaintiffs farm resulting in the damage. Plaintiff said he reported the case to the chief and also to the police. Plaintiff testified that upon the request of the police, the parties in the company of the police and the Agric extension officer in the area visited Plaintiff’s farm and the Agric officer assessed the cost of damage at GH¢12,120.00. According to Plaintiff the police asked 1st Defendant to pay the cost of damage to Plaintiff but the 1st Defendant refused to do so. The Plaintiff called two witnesses as PW1 and PW2. According to PW1, he was part of the delegation that visited the farms of Plaintiff and 2nd Defendant to conduct assessment of the damage. PW1 added that the Agric officer pegged the damage caused to Plaintiff’s farm at GH¢12,120.00 and 2nd Defendant’s at GH¢120.00. PW2 was John Nteleye Mpoebi Assemblyman for Bonwieso West Electoral area. PW2 testified that sometime in January, 2023 Plaintiff informed him that 1st Defendant’s cattle has caused damage to his tubers of yam. According to PW2 he consequently visited Plaintiff’s farm to see for himself the level of damage caused. PW2 said he and Plaintiff later went to confront 1st Defendant about the damage and 1st Defendant admitted liability but explained that it was 2nd Defendant who arrested his herdsman leading to the damage to Plaintiff’s farm. PW2 said he also called 2nd Defendant to find out the veracity of 1st Defendant’s allegation and 2nd Defendant admitted that she indeed arrested 1st Defendant’s herdsman for allowing his cattle to cause damage to her cassava, but that the 1st Defendant followed up to the Police station and took the herdsman away. PW2 testified further that he again visited the farms of Plaintiff and 2nd Defendant in the company of the parties, the Agric extension officers and the police where the Agric officers conducted an assessment of the damage on the two farms and came out with GH¢12,120.00 as the cost of damage on Plaintiff’s farm and GH¢120.00 being the cost of damage to 2nd Defendant’s farm. According to PW2 the Agric officer recommended that 2nd Defendant be made to pay for the damage caused to Plaintiff’s farm since she was the one who arrested 1st Defendant’s cow boy. PW2 said he protested against the Agric Officer’s recommendation because Plaintiff’s Herdsman was a minor and that the bye laws of the area prohibits minors from serving as Herdsmen, so 1st Defendant must be held liable for breaching the bye law. Thereafter, the Plaintiff closed his case. THE CASE OF THE DEFENCE In his defence the 1st Defendant admitted that his cattle indeed caused damage to Plaintiff’s yam. He told the court that on that fateful day whilst his herdsman was escorting Defendant’s cattle in the bush at Banda, the 1st Defendant suddenly emerged and arrested the herdsman accusing him of having allowed the cattle to destroy her dried cassava. According to 1st Defendant after the arrest of his herdsman 2nd Defendant dragged him to the Banda Police Station where he was detained hence the cattle scattered and stray into Plaintiff’s farm. 1st Defendant said when Plaintiff made the complaint about the damage to his yam to the police, the police engaged the Agric extension officer in the area to conduct an assessment of the damage and the officer arrived at an estimate of GH¢12,120.00 as the cost of damage to plaintiff’s farm. According to 1st Defendant the Agric Officer also recommended that 2nd Defendant be made to pay for the damage since she was the one who caused the cattle to stray into Plaintiff’s farm. According to 1st Defendant, Plaintiff rejected this recommendation and suggested that the District Director of Agric be made to conduct a second assessment. So the Police invited the District Director of Agric for Krachi Nchumuru District who conducted a second assessment and came up with an amount of GH¢8,653.00 as the cost of damage on Plaintiff’s farm. 1st Defendant contended that even though it was his cattle which caused the damage to Plaintiff’s farm, it was 2nd Defendant who caused such occurrence and so 2nd Defendant should be held responsible. 1st Defendant further contended that his herdsman is 18 years of age and thus, not a minor as claimed by Plaintiff’s witness. 1st Defendant added that it was only a small portion of Plaintiff’s tubers of yam that were damaged by the cattle and not all the 791 as claimed. 1st Defendant accused Plaintiff of intentionally neglecting to safeguard and salvage the rest of the yam but rather leaving them in the open for termites, rodents and others to cause further damage to. The 1st Defendant called four (4) witnesses as DW1, DW2, DW3 and DW4. DW1 was Mohammed Yahaya, the Fulani chief of Chinderi. According to DW1 he was among the delegation that visited Plaintiff’s farm with the Agric extension officers to conduct an assessment on Plaintiff’s farm. DW1 said upon their arrival at Plaintiff’s farm, they conduct a head count of the tubers of the yam and realised that 270 tubers of the yam were not damaged at all. DW1 said they also noticed, that, a good number of the yam were destroyed by termites and not by the cattle as alleged by Plaintiff. According to DW1 the team further noticed that after the cattle destroyed portion of the yam, the Plaintiff left the entire pile of yam in the farm unattended to and that was why the termites destroyed portion of the yam. According to DW1 when Plaintiff was asked why he failed to separate the damaged yam from the good ones, he told them he wanted to pursue the case first before doing that. DW2 was Corporal Essenyi Benjamin of Banda police station. He told the court that somewhere in January, 2023 they received a complaint from Plaintiff about the destruction of his tubers of yam by 1st Defendant’s cattle. According to DW2 as part of their investigation, the police engaged the Agric extension officer in the area to conduct an assessment of the damage and submit a report. However, when the officer submitted his report, it was rejected by Plaintiff who suggested that he wanted a second opinion by the District Agric Officer. The police therefore engaged the District Director of Agric himself to conduct a second assessment. DW2 testified further that when he in the company of the District Director of Agric the parties and other opinion leaders visited Plaintiff’s farm they observed that all the 791 tubers of yam were not damaged as alleged by the Plaintiff. DW2 said the Agric officer later submitted his report and same was served on the parties and whilst he was preparing to finish up with his investigation he got information that the Plaintiff had issue a writ against the Defendants. DW3 was the District Director of Agric for Krachi Nchumuru District. According to DW3, in January, 2023 his Station Officer at Banda sought permission from him to conduct an assessment and evaluation on tubers of yam that were allegedly destroyed by some cattle and he granted approval for the work to be done. DW3 said in April, 2023 he got information from the police that the Plaintiff had rejected the final report prepared by his officer, so the police tasked him to conduct a second assessment himself in the above case. DW3 testified that he visited Plaintiff’s farm on 6th April, 2023 in the company of the parties and the police for the assessment, and upon observation he noticed that 270 tubers of the yam were not damaged at all and the value of these 270 tubers (“puna”) was GH¢3,915.00. DW3 said his final assessment and evaluation was that the damage caused to Plaintiff’s yam was GH¢8,653.00 DW4 was Adamu Mohammed (1st Defendant’s herdsman). He testified that sometime in January, 2023 he was escorting 1st Defendant’s cattle in the bush at Banda and all of sudden 2nd Defendant beckoned him to come and when he approached 2nd Defendant, she gripped him and accused him of allowing the cattle to chew her dried cassava. That he denied the accusation but 2nd Defendant gave him a slap on his face and dragged him to the Banda police station where he was detained. DW4 said he was alone with the cattle and because of that the cattle got scattered and headed in different directions. DW4 said 1st Defendant later followed up to the police station and bailed him. According to DW4 he was later told that the cattle entered Plaintiff’s farm and caused damage to Plaintiff’s yam. Thereafter, the 1st Defendant closed his case. DOCCUMENT EXHIBITED BY 1ST DEFENDANT 1. Photograph of tubers of yam – Exhibit 1 2. Report of the District Director of Agric – Exhibit 2 3. Report of District Live Stock Officer dated 20/01/2023 – Exhibit 3 In her defence 2nd Defendant told the court that for some time now cattle have causing damage to his crops and anytime he reports to the police she is advice to arrest the culprits and bring them to the Police Station. According to 2nd Defendant in January, 2023 whilst in her farm, 1st Defendant’s cattle entered her farm and chewed up her dried cassava so she arrested one of the two herdsmen who were escorting the cattle and sent him to the police station. 2nd Defendant said she also reported the incident to the Assembly member for the area and so the Agric extension officer was made to visit her farm to conduct an assessment of the damage to her cassava. According to 2nd Defendant she did not know that 1st Defendant’s cattle caused damage to Plaintiff’s yam after she arrested 2nd Defendant’s herdsman. 2nd Defendant did not call any witness and hence brought her case to a close after her evidence. After the trial the court had to determine the following issues: 1. Whether Plaintiff is entitled to recover GH¢12,120.00 from 1st Defendant. 2. Whether 2nd Defendant is entitled to recover GH¢120.00 from 1st Defendant. APPLICABLE LAW This being a civil case, as per the Evidence Act, the obligation to adduce evidence should first be placed on the Plaintiff. The general rule is that the burden of proof rests upon the party who substantially asserts the affirmative of his case. Section 12(1) of the Evidence Act, 1975, NRCD 323, provides that “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. Also, in the case of Yorkwa v. Duah [1992-93] GBR 281, the Court of Appeal decision per Brobbey J. A. (as he then was) stated that: “The provisions of the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. ANALYSIS AND EVALUATION OF THE EVIDENCE I shall now proceed to deal with issue one: whether Plaintiff is entitle to recover GH¢12,120.00 from 1st Defendant. The Plaintiff’s case is that 1st Defendant’s cattle caused damage to his 791 tubers of yam which value is GH¢12,120.00. The Defendant did not dispute the fact that his cattle indeed caused damage to Plaintiff’s yam. But he has strenuously argued that it was 2nd Defendant who arrested his herdsman leading to the destruction. Secondly, 1st Defendant has also argued that the value of the damaged yam was not up to GH¢12,120.00 because not all the 791 tubers of yam were destroyed. In her Defence the 2nd Defendant has admitted that she indeed arrested 1st Defendant’s herdsman whilst he was escorting the cattle on that fateful day. But added that the herdsmen were two in number and hence the arrest of one of the herdsmen by her, could not have resulted in the damage to Plaintiff’s yam, if the other herdsman had properly control the cattle. DW4, Adamu Mohammed (1st Defendant’s herdsman) in his evidence insisted that he was the only herdsman escorting the cattle on that fateful day contrary to 2nd Defendant’s assertion. Unfortunately, 2nd Defendant has not produced a shred of evidence in support of her claim that the herdsmen were two. For the foregoing I find 2nd Defendant’s assessment as untruth. I also find per the evidence before me that 2nd Defendant exhibited gross recklessness by arresting DW4 when she knew he was the only one escorting the cattle at that material moment. In my respectful view, 2nd Defendant’s arrest of DW4 contributed immensely to the resultant damage to Plaintiff’s yam. Per 1st Defendant’s Exhibit “A” which is a photograph of yam and which was tendered in evidence without any objection by the Plaintiff, it is obvious that the yam in the photograph were not all destroyed or damaged. PW1 (Yahaya Mohammed) and PW3 (The District Director of Agric) for the Krachi Nchumuru District, in their evidence testified that when they visited Plaintiff’s farm they conducted a head count of the yam and notice that 270 of the yam with an estimated market value of GH¢3,915.00 were not damaged at all. This piece of evidence was not denied by Plaintiff. In fact, under cross examination by 1st Defendant Plaintiff told this court that he wanted to first pursue the case before sorting out the damaged yam from the ones that were not affected. It is also instructive to note that the first assessment (Exhibit 3) was done on 20/01/2023 whilst the second assessment (Exhibit 1) was undertaken on 06/04/2024 that is about three months after the first assessment. This means that the yam were left in the open and unattended to by Plaintiff for over three months. From the foregoing it is obvious that Plaintiff could have cut his losses if he had been proactive enough by salvaging the rest of the yam which were not destroyed. By failing to take any prudent step with regards to this, it will be unconscionable for the Defendant to turn around and demand that the Defendant pay for all the yam. From the evidence I find that 270 tubers of the yam valued at GH¢3,915.00 were not damaged at all. The Defendants therefore cannot be held liable to this amount. It is equally my finding that the Plaintiff acted negligently when he left the yam in the open and unattended to for over three months. I find that Plaintiff’s conduct contributed to a further destruction of the yam by termites and rodents. For all the foregoing reasons I find that the Plaintiff is not entitle to his claim against 1st Defendant. On the other hand, I hold that 2nd Defendant acted recklessly by arresting 1st Defendant’s herdsman and allowing the cattle to stray into Plaintiff’s farm thereby causing damage to the yam. In the circumstances I enter judgment in favour Plaintiff against 2nd Defendant as follows: Issue two is whether 2nd Defendant is entitle to recover GH¢120.00 from 1st Plaintiff being the value of the cassava damaged by Plaintiff’s cattle. 2nd Defendant’s case is that she dried some cassava in her farm and on 19/01/2023 the 1st Defendant’s herdsman, (DW4) negligently allowed the cattle to eat up all the cassava. 1st Defendant did not deny 2nd Defendant’s assertion. Indeed 1st Defendant under cross examination by Plaintiff told this court that the damage to 2nd Defendant’s cassava was assessed by DW3 at a cost of GH¢120.00 and he was making efforts to pay the money when Plaintiff brought the instant suit against Defendants. In Re Asere Stool; Nikoi Olai Amontia IV (Substituted by Tafo Amon IV) Akotia Oworsika III Substituted by Laryea Ayiku III (2005-2006) SCGLR 637 It was held that; “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”. Since 1st Defendant has admitted supra, the fact that his cattle caused damage to 2nd Defendant’s dried cassava, it will be needless to call on 2nd Defendant to produce any further evidence in support of her claim. For the foregoing, I find and hold that 1st Defendant is liable to 2nd Defendant’s claim. Having regard to the evidence adduced during the trial, I find that Plaintiff has failed to adequately prove his case against the 1st Defendant. Plaintiff’s claim against 1st Defendant is hereby dismissed. On the other hand, I enter judgement in favour of Plaintiff against 2nd Defendant as follows: 1) Plaintiff is to recover the sum of GH¢6,000.00 from 2nd Defendant being the cost of damage caused to Plaintiffs yam. 2) 2nd Defendant is to pay interest on the GH¢6,000.00 at the commercial rate from January, 2023 till date of final payment. 3) Cost of GH¢500.00 is awarded in favour of Plaintiff against 2nd Defendant. I also enter judgment in favour 2nd Defendant against 1st Defendant as follows: (a) 2nd Defendant is to recover an amount of GH¢120.00 from the 1st Defendant; (b) 1st Defendant is to pay interest on GH¢120.00 at the commercial rate from January, 2023 till date of final payment; (c) Cost of GH¢700.00 is awarded against the 1st Defendant in favour of 2nd Defendant. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 06TH NOVEMBER, 2023.