ABUBAKARI VRS KIATEY (C2/19/23) [2023] GHACC 891 (15 December 2023)

CORAM: HER HONOUR MRS ADWOA AKYAAMAA OFOSU, CIRCUIT COURT JUDGE SITTIING AT THE CIRCUIT COURT MPRAESO, EASTERN REGION ON THE 15TH OF DECEMBER, 2023 __________________________________________________________________ C2/19/23 FATIMATU ABUBAKARI - PLAINTIFF V MOHAMED KIATEY - DEFENDANT ……………………………………………………………………………………………………… ………………………. TIME: PLAINTIFF: PRESENT DEFENDANT: ABSENT ALEX GYAMFI FOR THE PLAINTIFF PRESENT JUDGMENT P a g e 1 | 8 The plaintiff herein caused a writ of summons to be issued out from the Registry of this court against the defendant on the 9th of February, 2023 on which was indorsed the following reliefs: a. A declaration that the confiscation of the plaintiff’s Animals by the defendant was or is unlawful b. Recovery of all the Animals c. Damages d. Costs including legal costs e. Any further orders that the court may deem fit In her accompanying statement of claim, the plaintiff averred that she is a farmer and the defendant is also a farmer and they both live at Butukope village in the Afram Plains South District. She avers that sometime in 2021 or thereabout, the defendant approached her husband, a Fulani cattle farmer to take care of his cattle for him which her husband agreed to. Following this agreement, she migrated with her husband with her own sheep and goats and other belongings to Butukope village near Forifori where the defendant’s cattle are located. The plaintiff further says that her husband worked for the defendant for one and half years and the defendant accused her husband of stealing his cattle but her husband denied same. This marred the relationship between her husband and the defendant and the defendant seized her husband’s mobile phone and also threatened to kill him forcing her husband to run away. In further averment, the plaintiff says that at the time her husband ran away, he was entitled under the agreement with the defendant to some compensation or payments. That upon her husband running away, the defendant charged her to look for her husband for him to look for the lost cattle but because the defendant had seized her husband’s P a g e 2 | 8 phone she could not call her husband to find out where he was. Plaintiff says that for this reason, the defendant seized the plaintiff’s sheep and goats numbering 29 and has kept them without allowing the plaintiff access to them. The plaintiff says that she reported the matter to the police and the commander impressed upon the defendant to release the animals to the plaintiff but the defendant would not listen. That since that incident she has been harassed, threatened and intimidated by the defendant and his agents all in the name of forcing the plaintiff to tell where her husband has escaped to. The plaintiff further states that even though the defendant knows she is a nursing mother, the defendant has denied her food and the peace of mind she requires to take care of herself and her daughter. The plaintiff says that as a result of the defendant’s conduct, she has suffered many hardships to the extent that she has been forced to borrow from friends and neighbours before she could provide for herself and her daughter. She avers that even though the defendant is aware of her status in the matter as not being a party to the agreement between her husband and the defendant, the defendant has extended his anger towards her and putting too much stress on her unnecessarily. The plaintiff concludes that the defendant will not stop his invidious conduct towards her unless compelled by this honourable court to stop. The defendant was duly served with the writ of summons and statement of claim but he failed to enter appearance. Consequently after the time limited for appearance elapsed, counsel for the plaintiff brought an application for judgment in default of appearance. On the 27th of April, 2023, this court differently constituted entered an interlocutory P a g e 3 | 8 judgment in favour of the plaintiff and ordered her to file her witness statements in proof of her claim. The plaintiff filed her witness statement and witness statements for two witnesses. The plaintiff repeated her averments on oath and same was corroborated by the evidence of PW1 and PW2. The only issue the court has to determine is whether or not the plaintiff is entitled to her claim. Sections 10 to 15 of the Evidence Act 1975, (NRCD 323) outline the law that must be applied in the submission and evaluation of evidence. It begins by placing a burden of persuasion on a person who alleges any position. Section 10 of NRCD 323 directs: “For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court” Thus the law makes it obligatory for anyone who makes an allegation of fact to establish a requisite degree of belief concerning that fact in the mind of the adjudicator. This belief must be established by the tendering of sufficient evidence. The sufficiency of evidence is guided by the standard of proof that attaches to the case and standards of proof are determined by the nature of the case - whether civil or criminal. In civil cases the standard of proof is “proof on the preponderance of probabilities” which is explained in section 12 (2) of the Evidence Act as: “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” P a g e 4 | 8 Thus in SAGOE & OTHERS V SOCIAL SECURITY AND NATIONAL INSURANCE TRUST (SSNIT) [2012] 2 SC GLR 1093 it was held that: “proof on the preponderance of probabilities within the context of the burden of proof as stated in section 12(2) of the Evidence Act 1975 (NRCD 323), simply means weightier or superior evidence…” The determination of whether a party has met the threshold of sufficiency in producing evidence on a particular issue is a question of law. This is because sufficiency of evidence as required by section 10 of NRCD 323, is a legal concept and has nothing to do with quantity of evidence and everything to do with quality of evidence to meet the definition of proof in law as stated in the case of MAJOLAGBE V LARBI & OTHERS [1959] 190 AT 192 . In the case cited, proof in law was defined as “the establishment of facts by proper legal means…by producing documents, description of things, reference to other facts, instances or circumstances...by producing other evidence of facts and circumstances from which the court can be satisfied that he (a part) avers is true”; sufficiency of evidence therefore compels the tendering of relevant evidence which has such weight, credibility, cogency and consistency that a court must prefer it over the evidence of the other contesting party. In the instant case therefore, the plaintiff carries the legal burden to prove what she asserts in terms of the above requirement of the law regardless of the fact that the defendant failed to put in a defence and partake in the trial. The plaintiff testified and repeated her averments on oath. She however called two witnesses who testified in support of her claim. P a g e 5 | 8 PW1 told the court that he is a chief and lives at Zongo in the Afram Plains South District. That when the plaintiff’s husband got the job, she informed him and the other leaders of the zongo community and they advised her to go with her husband. He further stated that the plaintiff went to live in the defendant’s village with her own animals. When the alleged loss of cattle occurred, the defendant charged the plaintiff to look for her husband but the plaintiff could not because the defendant had seized the plaintiff’s husband’s phone. When the plaintiff informed him of this development, he accompanied the plaintiff to report the case to the local traditional council and upon deliberation over the matter by the chiefs, the defendant was directed to release the animals to the plaintiff for the fact that the animals are the property of the plaintiff but the defendant failed to do so. PW1 further testified that at the meeting, the defendant admitted seizing the plaintiff’s goats and cows numbering 29 and has kept them in his pen without allowing the plaintiff access to same. When the defendant failed to release the animals, his conduct was reported to the police and the commander impressed on him to release the animals but he failed to comply. PW2 on his part told the court that he lives in Forifori Palace in the Afram Plains South District. That he was present when the plaintiff reported the matter to the local traditional council. According to PW2, the defendant admitted seizing the plaintiff’s sheep numbering 29 and kept them in his pen save that he asked the council to compel the plaintiff to produce her husband. When the defendant failed to release the animals, his conduct was reported to the police but he still failed to comply. From the corroborative evidence of the plaintiff’s witnesses which I have no reason to doubt, the defendant admitted seizing the plaintiff’s animals when he appeared before the traditional council. This means that there is no dispute about the fact that the 29 animals the defendant seized belonged to the plaintiff. The evidence is that it is the P a g e 6 | 8 plaintiff’s husband who had an agreement with the defendant and not the plaintiff. Besides, the defendant has not accused the plaintiff of any wrong doing therefore assuming that the allegation that the plaintiff’s husband stole the defendant’s cattle is true, there is no justification for the defendant to seize the 29 goats and sheep because they do not belong to the defendant. This makes the seizure by the defendant of the plaintiff’s animals unlawful and I so hold. Furthermore, by reason of the tortious act of the defendant, I hold that the plaintiff is entitled to damages. On the preponderance of the evidence therefore it is my view that the plaintiff is entitled to her claim. I therefore enter judgment in favour of the defendant as follows: 1. It is hereby declared that the confiscation of the plaintiff’s animals by the defendant is unlawful. 2. It is hereby ordered for the plaintiff to recover her sheep and goats numbering 29 from the defendant. 3. Damages of GH₵3,000.00 is awarded in favour of the plaintiff. 4. Costs of GH₵3,000.00 is awarded in favour of the plaintiff. H/H ADWOA AKYAAMAA OFOSU (MRS) CIRCUIT COURT JUDGE P a g e 7 | 8 P a g e 8 | 8