NURUDEEN VRS ALIMU (A2/11/2024) [2023] GHADC 1134 (16 November 2023)

IN THE DISTRICT COURT HELD AT DAMBAI ON THURSDAY 16TH NOVEMBER, 2023 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE. SUIT NO: A2/11/2024 HAWA NURUDEEN DAMBAI ZONGO PLAINTIFF VRS 1. JOSEPH ALIMU DEFENDANT 2. REBECCA AGBEOVI ALL OF DAMBAI WANKAYAW JUDGEMENT The Plaintiff herein per his Writ of Summons dated 16th August, 2023 claim against the defendants the following reliefs: i. Recovery of GH¢9,500.00 being money the 1st defendant borrowed from plaintiff. ii. Interest on the GH¢9,500.00 from March, 2019 till date of final payment. iii. Costs. When the Writ of Summons was served on the defendants the 1st defendant failed to respond to same or appear before the Court to defend himself. Several hearing notices were served on him but he still failed to appear before the Court. The 2nd defendant on her part filed a defence and denied the entire claim of the plaintiff. Order 25 r (2) (a) of the District Court rules 2009 C. I. 59 provides that: “Where an action is called for trial and a party fails to attend, the trial magistrate may (a) Where the plaintiff attends and the defendant fails to attend, dismissed the counterclaim, if any, and allow the plaintiff to prove the claim; IN RE WEST COAST INDUSTRY LTD ADAMS & TANDOH (1984-86) 2 GLR 361 and WATALAH VRS PRIMEWOOD PRODUCTS LTD (1973) 2 GLR 126 the principle stated was that where a party fails to respond to Court processes duly served on him, or avail himself for the hearing of the suit, the Court was entitled to proceed with the trial to its conclusion, make findings on the evidence led at the trial, make deductions and draw conclusions. On the strength of the above stated authorities, the plaintiff was allowed to prove his claim against the defendants. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that she used to be a food vendor and the 1st defendant who is a businessman dealing in lumber is his ex-fiancée whilst the 2nd defendant is the mother of 1st defendant. According to plaintiff in March 2019 her family kept some money with her and because she lived with 1st defendant, he was aware of the fact that she was in possession of the money. Plaintiff said because 1st defendant knew about the money he asked plaintiff to give the money to him as a loan to support 1st defendant’s struggling lumber business. Plaintiff stated that he was assured by 1st defendant that he will pay back the money any time plaintiff’s family was in need of it. Plaintiff further stated that when it was time for 1st defendant to pay back the money, 1st defendant started giving excuses and later went into hiding so she reported the case to the police. But the police could not arrest 1st defendant because he fled from town. According to plaintiff when all attempts to arrest 1st defendant failed, he reported the matter to 2nd defendant and 2nd defendant assured her that 1st defendant had travelled to Adumadum to cart lumber to Dambai for sale and 1st defendant will pay the money on his return from his business trip. However, if 1st defendant fails to pay the money, she, (2nd defendant) will pay the money to plaintiff. Plaintiff said she accepted 2nd defendant’s assurances and left. Plaintiff said it has been more than two years since 2nd defendant gave this assurance but neither 1st nor 2nd defendant has made any effort to pay the money and every effort made by her to recover the money has failed. The plaintiff did not call any witness and hence closed her case after her evidence in chief. THE CASE OF 2ND DEFENDANT According to 2nd defendant, some time ago, she was in her house when plaintiff came to inform her that she was in an amourous relationship 1st defendant for a while now and that 1st defendant owed her 1,000.00 but had refused to pay the money. 2nd defendant said when she enquired further plaintiff told her that some time ago, 1st defendant was arrested by the police and 1st defendant made her used her 1000.00 to bail her from police custody with a promise to pay back the money but has refused to do so. 2nd defendant stated that plaintiff told her that she does not know where to locate 1st defendant but she heard 1st defendant was staying with a lady at Adumadum and so 2nd defendant should lead her there. But she told plaintiff that she was not feeling well and so cannot go to Adumadum with plaintiff. 2nd defendant contended further that she never promised or assured plaintiff that she was going to pay for the 1st defendant’s 1000.00 let alone 95,000.00. The 2nd defendant did not call any witness hence closed her case after he evidence. The legal issue to be determined in this matter is whether defendant’s comment as stated above is defamatory of plaintiff. The standard of proof in civil cases is on a balance of probabilities as per sections 11(4) and 12 of the Evidence Act, 1975 (NRCD, 323); and the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. As held in the case of ABBEY & OTHERS v ANTWI [2010] SCGLR 17 at 27. The position of the law in civil cases is that “the standard of proof of allegations in civil cases is proof by preponderance of probabilities. It is only when crime is pleaded or raised in the evidence that the allegation sought to be proved must be proved beyond reasonable doubt. In the case of ADWUBENG v. DOMFEH [1997-98] GLR 281 the Supreme Court per Ampiah JSC held in holding 3 as follows; “Section 11(2) of NRCD 323 require proof beyond reasonable doubt only on the prosecution in criminal actions and in proof of a commission of a crime in any civil or criminal action. And Section 11(4) and 12 of NRCD 323 clearly provided that the standard of proof in civil actions, without exceptions, was proof by a preponderance of probabilities”. Also in the case of DON ACKAH v. PERGAH TRANSPORT LTD & OTHERS [2010] SCGLR 728 at 736, the Supreme Court speaking through Adinyira JSC, (as she then was) held inter alia as follow: “It is basic principle of the law on evidence that a party who bears the proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim must fail. The method of producing evidence is varied and it includes the testimony of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as jury.” Plaintiff’s evidence was that she was at her shop when defendant arrived there on that fateful day and without any provocation rained insults at her to wit: “you Yaaya, you are a witch, you are practicing witch craft. You are an idol worshiper who pretend to be a Christian.” According to plaintiff all this happened in the presents of other persons including some customers. Both PW1 and PW2 have corroborated plaintiff’s evidence with PW2 adding that she tried restraining defendant but defendant ignored her and became even more agitated and abusive. I have subjected plaintiff’s Writ and Statement of Claim as well as his evidence and the evidence of PW1 and PW2 to the prescribed standard of proof as provided supra. I have also examined the entirety of plaintiff’s claim with the view to establishing whether or not even with defendant’s absence in this trial, any crucial reasonable legal defence is available to the defendant but unfortunately have found none. After a careful examination and evaluation of the Plaintiff’s evidence, I find that there was a publication made by defendant against plaintiff to wit: “you Yaaya you are a witch, you are practicing witch craft. You are an idol worshiper who pretend to be a Christian”. I further find that the comments are capable of defamatory meaning in the ordinary sense and the comments are indeed defamatory of the plaintiff. I shall thereby find for the Plaintiff and accordingly enter judgment for the Plaintiff as follows: i. It is hereby declared that the statement by defendant to wit: “you Yaaya you are a witch, you are practicing witch craft. You are an idol worshiper who pretend to be a Christian” against plaintiff is defamatory. ii. Defendant is hereby ordered to retract the above statement and render an unqualified apology to plaintiff via the nearest information center to plaintiff’s place of business at Kparekpare. The retraction and apology must be done once each day for three consecutive days within fourteen (14) days from today, 25th September, 2023. iii. The defendant is hereby perpetually restrained from making such defamatory statements or comments against the plaintiff. iv. v. Damages of GH¢1,000.00 is awarded against defendant. Costs of GH¢800.00 is awarded in favour of plaintiff. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 16TH NOVEMBER, 2023.