MOHAMMED & BOGHA (NR/BB/DC/A2/06/2024) [2024] GHADC 418 (21 February 2024)

IN THE DISTRICT COURT HELD ON WEDNESDAY THE 21ST DAY OF FEBRUARY, 2024 AT BIMBILLA BEFORE HIS WORSHIP PETER KOBBLAH AMETSOWU. SUIT NO. : NR/BB/DC/A2/06/2024 1. ABDULAI MOHAMMED } PLAINTIFF OF BIMBILLA VRS. 1. ISSAH BOGHA OF BIMBILLA } DEFENDANT JUDGMENT BRIEF FACTS OF THE CASE 1. The Plaintiff in this suit is a retired teacher and resident in Bimbilla. Defendant is a farmer who also works with National Security Operatives and resident in Bimbilla. 2. On the 16th day of January, 2024 the Plaintiff issued a Writ of Summons against the Defendants out of the Legal Aid Office, Bimbilla and claimed for the following reliefs: (a) Recovery from Defendant cattle after he stood surety for Abdulai Fulani (herdsman) in the month of September and he (Abdulai Fulani) and cannot be found anywhere. (b) An order directed at the defendant to pay interest on the value of the seven cattle in monetary terms at the prevailing interest rate. (c) Cost. (d) Any other damages the court may deem fit. 3. To this, the Defendant pleaded liable to 4 cattle and not liable to the other reliefs sought by the Plaintiffs. The court by procedure and the nature of the case deemed it necessary for the matter to be heard viva voce for expeditious hearing. PLAINTIFF’S CASE. 4. The Plaintiff in his Writ of Summons and Summary of Subject Matter of Claim sought for recovery of 7 cattle from the Defendant and some other reliefs. It is the case of the Plaintiff that as a retired teacher he invested his pension lump sum into cattle rearing. He further asseverated that he bought 7 cattle all totaling GHȼ8,800.00 between September and October, 2017 from some Fulani men. He went on to say that the cattle was entrusted in the care of one Abdulai Fulani who charged him GHȼ10.00 a month which he paid until November, 2023. In the same month of November, 2023 he heard from some people that Abdulai Fulani said that Plaintiff cattle are no longer with him. Plaintiff then caused the arrest of Abdulai Fulani and later granted Police Enquiry Bail. It was the Defendant who stood as a surety for Abdulai Fulani at the Police Station, Bimbilla. DEFENDANT’S CASE. 5. On the other hand, the Defendant contended that it is true that Plaintiff placed his cattle in the custody of Abdulai Fulani. He further stated that he also had his cattle with Abdulai Fulani and that they are about sixty cattle owners who had their cattle with Abdulai Fulani. That Abdulai Fulani disappeared but resurfaced later and was summoned before the Cattle Owners Association and gave account of how many cattle each person had with him. He mentioned that Plaintiff had 4 cattle with him because Plaintiff sold 3 of his catlle some time ago. He also stated that when Plaintiff caused the arrest of Abdulai Fulani he was called by his witness to stand as surety for him. That when Abdulai Fulani was granted bail he went to look for Plaintiff’s cattle for him but did not come and Plaintiff started pursuing him. This was why at the Police Station they agreed that Defendant and his witness will give Plaintiff 4 cattle as his cattle that were left with Abulai Fulani. It is the case of the Defendant that he and his witness have given Plaintiff two (2) of the cattle and it is left with two to be given to him and not five (5) cattle. ISSUES FOR DETERMINATION. 6. The court after perusing the evidence adduced by both parties concluded on a sole issue as follows: Whether or not at the Police Station, Bimbilla Defendant agreed to give seven (7) cattle to Plaintiff as the number of cattle left with Abdulai Fulani. STANDARD OF PROOF, EVALUATION OF THE EVIDENCE AND ANALYSIS. 7. In resolving the issue identified above the court will evaluate and analyse both the facts and evidence put forward 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.” 8. In the case of ABABIO VRS AKWASI III (1994-95) GBR 774 at 777, AIKINS JSC stated the principle thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie 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 scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not he loses on that particular issue. See Bank of West Africa Ltd v Ackun [1963] 1 GLR 176”. 9. Similarly, in ACKAH V. PERGAH TRANSPORT LTD [2010] SCGLR 728 at page 736 Adinyira, JSC stated that: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” 10. The law 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 the 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.” 11. Resolving the sole issue identified ie, Whether or not at the Police Station, Bimbilla Defendant agreed to give seven (7) cattle to Plaintiff as the number of cattle left with Abdulai Fulani, there is no doubt on record that Defendant stood as surety for Abdulai Fulani when he was arrested, restricted and detained by the police. 12. Plaintiff in his evidence that at the time of the arrest of Abdulai Fulani, he had 7 cattle with him and as a result Defendant agreed to give him same when Abdulai Fulani jumped the Police Inquiry Bail. 13. His argument for 7 cattle to be recovered from Defendant is based on the fact that when he sold 3 of his cattle out of the 7, the other 4 cattle delivered 3 more cattle to bring the number to 7 in the custody of Abdulai Fulani. 14. Plaintiff tendered Exhibits ‘A’ series which are photographs he took with the Fulani men whom he bought the cattle from and relied on same to prove his case. Plaintiff did not produce any evidence to prove the fact that the 4 cattle left in the custody of Abdulai Fulani delivered 3 to add to them making 7 cattle. 15. Plaintiff also failed to call any witness including the investigator to testify in support of his case to prove the fact that at the Police Station Defendant being a surety of a suspect agreed to give Plaintiff 7 cattle. 16. Plaintiff in latter part of his evidence waived his claim for reliefs (2) and (4) and so did not lead any evidence to prove same. 17. It is settled that in all cases Plaintiff must win on the strength of his case and not on the weakness of the Defendant’s case. See the case of CONCA ENGINEERING LTD V. MOSES (1984-86) 2 GLR 319. 18. Defendant in his evidence and that of his witness controverted Plaintiff’s allegation that his 4 cattle delivered 3 cattle in addition to the 4 cattle left in the custody of Abdulai Fulani. This is a portion of the evidence of Attah Natogmah Sualesu (DW1): ‘…So the Fulani called from the list he had everybody’s cattle in his custody. We all agreed to send him to the kraal to distribute the animals in accordance with what he had on the paper. All the people agreed not to harm him nor take him to the police when plaintiff was also there. Some people got their animals, some did not get. Plaintiff had 7 but sold 3 and was left with 4 cattle with the Fulani man. Plaintiff did not get his animals from the Fulani man.’ 19. It must be mentioned that the Defendant and DW1 are also victims as wells as the Plaintiff of the loss of their cattle in custody of Abdulai Fulani. These persons could have as well made a case against the said Abdulai Fulani for the lost they have suffered. They mentioned that because of the age of the plaintiff they will do all that they could to get Plaintiff his animals numbering four (4) for him. The reason being that Abdulai Fulani could not produce the animal for plaintiff as he promised at the Police Station. CONCLUSION 20. The court, after evaluation and analysis of evidence adduced by both parties, has found that the Plaintiff’s evidence has been controverted greatly and convincingly by the Defendant. Exhibit “A” series does not establish the allegation by Plaintiff that the remaining cattle in custody of the herdsman were 7. 21. Plaintiff when given the opportunity to cross examine DW1, did not ask him any questions in respect of the above statement DW1 made in his evidence. This impliedly concludes the fact that Plaintiff, at the time of account given by Abdulai Fulani, had 4 cattle in his custody. And the court can only conclude that what was agreed at the Police Station, based on the evidence before this court, is that Plaintiff recovers 4 cattle from the Defendant and not 7 cattle as alleged by Plaintiff. 22. Accordingly, Plaintiff’s action succeeds in part against the Defendant. I hereby order as follows: (i) That Plaintiff recovers from the Defendant two cattle in addition to the two already accepted from Defendant within a reasonable time. (ii) Cost of GHȼ300.00 is awarded in favour of Plaintiff against Defendant. SGD HIS WORSHIP PETER KOBBLAH AMETSOWU