NYARKO VRS GYATO (A2/04/2024) [2023] GHADC 1139 (16 November 2023)

IN THE DISTRICT COURT HELD AT DAMBAI ON THURSDAY, 16TH NOVEMBER, 2023 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE. PROSPER NYARKO OF KPAREKPARE VRS MENSAH GYATO OF GYATO AKURA SUIT NO. A2/04/2024 PLAINTIFF DEFENDANT ________________________________________________________________________ PARTIES PRESENT PARTIES UNREPRESENTED JUDGEMENT The Plaintiff herein claims against the Defendant the following reliefs: (a) Recovery of six (6) cattle. (b) In the alternative to relief (a) above recovery of GH¢42,000.00 (GH¢7,000.00 per cow) being the value of plaintiff’s six cattle he handed over to defendant to take care of. (c) Costs. The Defendant denied liability of all the claims stated above. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that about 13 years ago he handed over four cattle to defendant’s late father who was a cattle farmer to take care of for him. According to plaintiff the cattle have been multiplying and he has sold a number of them till they reduced to two in number. Plaintiff said after the death of defendant’s father Opani Gyato he handed over the two cattle to defendant to continue taking care of for him. Plaintiff stated that the two cattle also multiplied up to six cattle and plaintiff borrowed one of the cattle and promised to replace same later. Plaintiff further stated that it was agreed that the defendant will replace the cow in December, 2022 but the defendant have failed to respect the terms of the agreement. According to plaintiff the defendant refused to return to him the rest of his five cattle despite several efforts made by him. The Plaintiff called one witnesses (Nana Attah Foster) as PW1. According to PW1 in October, 2022, the plaintiff complaint to him that he handed over his six cattle to defendant to take care of but the defendant have appropriated all the cattle and all efforts made by him to retrieve his cattle have failed. PW1 said he and his panel of elders met the parties for arbitration and the defendant pleaded with him to amicably settle the dispute between them. PW1 again stated that upon the plea of defendant, the plaintiff agreed to accept four cattle in final settlement of the dispute. PW1 said defendant then pleaded for three months within which to pay the four cattle and the request was granted by plaintiff. However, the defendant failed to return the four cattle to plaintiff giving several excuses. Thereafter, the Plaintiff closed his case. THE CASE OF THE DEFENDANT The Defendant’s case as can be glean from his statement of defence and evidence in chief was that the plaintiff entrusted his cattle in defendant’s late father and his father had a Fulani herdsman who was conducting the cattle to the fields for grazing every time. According to defendant, plaintiff’s cattle in the custody of his father at the time of his father’s death were three in number. Defendant said after the death of his father, plaintiff entrusted the three cattle to him. However, the Fulani herdsman shortly abandoned the cattle due to plaintiff’s refusal to accept the herdsman’s proposal for a salary adjustment. Defendant stated that with the consent of plaintiff a new herdsman was contracted to take care of the cattle of plaintiff together with that of defendant’s late father. Defendant said he later borrowed one cow out of plaintiff’s three cattle and promised to replace same later. Defendant further stated that the herdsman on one occasion sent the cattle out for grazing and one of plaintiff’s cattle fell and died in the field. Plaintiff was accordingly informed of the incident and he made his in-law to come for the carcass. Defendant again said plaintiff’s only remaining cow gave birth to one calf increasing plaintiff stock of cattle to two. According to defendant the herdsman unfortunately absconded with one of plaintiff’s cattle including fourteen cattle belonging to defendant’s late father leaving behind plaintiff’s only calf. According to defendant the plaintiff was informed and they both made efforts to trace the herdsman and the cattle but to no avail. Defendant said the plaintiff later came for his only calf. Defendant added that the cow he borrowed from the plaintiff have been ready for collection by the plaintiff but plaintiff has refused to come for the cow claiming that defendant owe him six cattle and not one cow. Defendant admitted he was summoned before PW1 by plaintiff over the dispute but denied ever admitting to PW1 or proposing to PW1, that he will pay four cattle to plaintiff. Defendant said when he was invited by PW1, on this matter he told PW1 and plaintiff that he owed plaintiff only one cow and the cow was ready for collection. The Defendant called two witnesses as DW1 and DW2 in support of his case DW1 was defendant’s brother ((Evans Gyato), he corroborated the testimony of the Defendant. DW2 was Jallo Mohammed. He told the court that he is the former herdsman of the defendant’s late farther. According to DW2 at the time of defendant’s father’s death, the plaintiff had three cattle with defendant’s father and he, (DW2) was the one taking care of the said cattle. DW2 said after defendant’s father’s death, he told plaintiff of his intention to review upwards his charges for his services but the plaintiff rejected his proposal so he also refused to take care of the cattle. DW2 again said following this development, the cattle were handed over to a new herdsman. DW2 stated that on one occasion the new herdsman, led the cattle to the bush and one of plaintiff’s three cattle fell and died. He stated that plaintiff was informed and he sent for the carcass and same was handed over to him through his in-law. According to DW2 the new herdsman latter absconded with some cattle belonging to defendant’s father including plaintiff’s one cow leaving behind a calf belonging to plaintiff. DW2 further said the calf was brought to him to take care of but he refused and so plaintiff came for it. Thereafter, the Defendant closed his case. The legal issues to be determined are: (i) Whether the defendant owe plaintiff six cattle. (ii) Whether the dispute between plaintiff and defendant have already been arbitrated based on which defendant agreed to pay four cattle to plaintiff thereby making the present matter res judicata. In my considered view the determination of the above issues will effectively and completely determine the dispute between the parties. APPLICABLE LAW Section 14 of the Evidence Act, 1975 (NRCD 323) provides 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” Again Section 12(1) of the Evidence Act provides inter alia that; Excerpt as otherwise provided by law the burden of persuasion requires proof by a preponderance of probabilities. 2 “Preponderance of the probabilities” means that degree of certainty and 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”. In the case of Ackah v. Pergah Transport Ltd & Ors [2010] SCGLR 728 it was held that: “It is a basic principle of the law on 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. The method of producing evidence is varied and it includes the testimonies 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 a jury ..................” EVALUATION AND ANALYSIS OF EVIDENCE To enable me resolve the above issues I shall now examine and evaluate the evidence adduced by the Plaintiff in support of his case and the Defendants defence within the context of their respective burdens as I have stated earlier in this judgement. Issue one: Whether defendant owe plaintiff six cattle. Plaintiff’s particulars of claim read in part as follows: “Plaintiff’s claim against the defendant is for an order of the Honourable Court compelling defendant to return plaintiff’s six cattle or in default to pay GH¢42,000.00 (GH¢7,000.00 per cow) being the cost of the six cattle plaintiff place under defendant’s custody after the death of defendant’s father, Opani Gyato…” Again in his summary of subject matter dated 16/08/2023, the plaintiff stated that: “.. About 13 years ago the plaintiff handed over 4 cattle to the defendant’s late father by name Opani Gyato who was then a cattle farmer. The animals have been multiplying and plaintiff have been selling some. After the death of defendant’s father plaintiff’s cattle were left with 2, so he entrusted them to defendant to be taking care…” However, in plaintiff’s witness statement dated 13/09/2023 he made the following statement at paragraph 4: “During the life time of defendant’s father, plaintiff was having 3 cattle with Opani Gyato ((defendant’s father) which defendant took over as customary successor of Opani Gyato.” From the above it is quite clear that the plaintiff is not certain about the number of cattle he entrusted on defendant or had with Opani Gyato at the time of his death. Whilst plaintiff stated in the particulars of claim that he placed six cattle under the care of defendant, in his summary of subject matter he stated that the cattle he handed over to defendant were two and yet in his witness statement he claims defendant took over three cattle after the death of defendant’s father. On the other hand, the defendant in both his statement of defence and witness statement have been consistent in his admission that plaintiff’s cattle were entrusted to him after defendant’s father’s death and that the cattle were three in number and not two, three or six as stated by plaintiff in his writ, summary of subject matter and witness statement. It is therefore not surprising that after having been served with the defendant’s defence, the plaintiff has made a “U” turn to now say that he had three cattle with Opani Gyato at his death. Plaintiff is obviously trying to correct the inconsistencies he churned out relying on defendant’s position. The inconsistencies in plaintiff’s case are numerous. In his evidence he stated that the three cattle he entrusted to defendant multiplied or increased to six cattle and at a point the defendant borrowed one cow and promised to replace same back latter but have failed to do so. Whilst on one hand he claimed he handed over six cattle to defendant on the other hand he claims it was his three cattle that multiplied to six cattle as a result of they given birth. The question one may ask at this point is whether the three cattle multiplied to six cattle before he handed them over to defendant or he handed over the three cattle to defendant before they multiplied to six? At paragraph 5 of his witness statement plaintiff said after defendant borrowed one cow from his three cattle, he cannot trace the remaining two cattle in the custody of the defendant for about five years now. In my respectful view what plaintiff is simply saying here is that after defendant borrowed the one cow from him, he had only two cattle with defendant which he had failed to account for. Also at paragraph 7 of his witness statement the plaintiff confirmed that he indeed gave three cattle to defendant. He stated as follows: “A cow normally give birth once every year, so therefore, plaintiff’s three cattle in possession of the defendant must now multiply and reproduce fifteen cattle as at now. However, plaintiff being so lenient demanded for only six cattle when he summoned defendant before PW1 and defendant pleaded that he will pay four cattle and immediately gave plaintiff only one cow leaving three cattle outstanding till date. From the evidence above the plaintiff is not only being contradictory of himself but also clearly saying that the six cattle he is claiming from the defendant is only imaginary. The defendant has not produced any cogent evidence to show that the three cattle indeed gave birth or multiplied to six or fifteen cattle as he claims. In Fordjour v Kaayire [2015] 85 GMJ 61, Ayebi J. A enunciated at page 93 as follows: It has to be noted that the court determines the merit of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without producing evidence in support of that assertion is not evidence to require denial in cross examination by the opponent. Also in the case of Wahin v. London South Western Railways Co. Ltd (1882) 12 APP. Case 4, the English Court of Appeal held thus; “Where the available evidence is so scanty, as to render it impossible to reach a definite conclusion, the party to suffer for this state of affairs must be the one on which lies the burden of proof on the issue.” From the foregoing I find that the plaintiff entrusted three cattle to defendant after defendant’s father’s death and not six as he wants this court to believe. The defendant in his evidence stated that when the plaintiff entrusted the cattle to him after the death of his father, the herdsman proposed an increment in his fees for curing for the cattle but the plaintiff rejected the proposed increment, so the cattle were handed over to a new herdsman with the consent of plaintiff. Defendant further said on one occasion the new herdsman led the cattle out for grazing but unfortunately one of plaintiff’s remaining two cattle fell and died and he informed plaintiff and plaintiff asked him to dress the carcass and plaintiff sent his in-law to come and convey same away. Defendant again testified that plaintiff’s remaining cow gave birth to a calf increasing plaintiff’s stock to two. But the herdsman absconded with plaintiff’s cow including defendant’s father’s cattle leaving behind plaintiff’s only calf. Defendant said he informed plaintiff of the incident and together they made efforts to trace the herdsman or the cattle but to no avail. Defendant said plaintiff latter came for the calf from defendant. Defendant stated that apart from the cow he borrowed from plaintiff he does not owe plaintiff any other cow. DW2 told the court that he was present when one of plaintiff’s three cattle died in the bush and he is aware that plaintiff sent his brother-in-law to come for the carcass. He also indicated that he is aware that the new herdsman absconded with one of plaintiff’s cattle in addition to defendant’s father’s cattle leaving behind plaintiff’s calf. According to him the calf was handed over to him by defendant to take care of but due to the earlier disagreement between him and plaintiff he refused to take custody of the calf. Under cross examination by defendant on 17/10/2023 plaintiff admitted that one of his cattle died but denied that the said cow was not one of the three cattle he handed over to defendant. The following was what transpired. Q. You told the court I borrowed one cow out of your three cattle. Is that correct. A. Yes. Q. So it means after I borrowed that cow the rest of your cattle with me were now two. Not so A. Yes. Q. Do you remember that out of your remaining two cattle one died and I call to inform you and you made your in-law came for the carcass. A. Yes. But that cow was not one of the three cattle I entrusted on you. Again when plaintiff came under cross examination by defendant on same 17/10/2023 he admitted the herdsman absconded with some cattle and efforts by him and defendant in tracing the herdsman proved unsuccessful. Plaintiff also admitted that the defendant gave him back one cow. The assertion by defendant that he returned one cow (calf) to plaintiff was corroborated by PW1. From the foregoing, I find that the defendant entrusted three cattle to defendant after defendant’s father’s death and not six as he claims. I further find that out of the three cattle plaintiff handed over to defendant, defendant borrowed one which he is yet to pay back, one died whilst the third one gave birth to a calf. I equally find that the cow which gave birth was stolen by the herdsman leaving the calf behind and it was this calf that was giving to plaintiff by defendant and I so hold. Issue two: Whether the dispute has already been arbitrated based on which defendant agreed to pay four cattle to plaintiff therefore making the present matter res judicata. The principle of res judicata is now a well-established and acceptable principle in judicial proceedings. Its objective is to prevent an abuse of the court’s process by stopping a party to a litigation against whom a court of competent jurisdiction has already determined the issue now being raised by reopening the same subject matter for further litigation. The principle can also be raised against privies of the original parties, see Nyame v. Kese alias Konto [1999-2000] 1 GLR 236. In the instant case, the plaintiff said the dispute was arbitrated by Nana Atta Foster, Chief of Kparekpare (PW1) and it was resolved that defendant will pay four cattle to plaintiff and out of which defendant paid one cow to plaintiff with three cattle outstanding. In his evidence PW1 told the court that he arbitrated the dispute between the parties and that defendant agreed to pay four cattle to plaintiff. PW1 added that defendant pleaded for time within which to pay the cattle and was granted three months but he failed to fulfil his promise. Defendant vehemently denied that the matter was successfully arbitrated by PW1 or he agreed to pay four cattle to plaintiff. Defendant testified that when he was invited by PW1 and the panel, he argued that he owed the plaintiff only one cow but defendant also insisted on four so the panel could conclude or make any final decision. Defendant’s assertion was corroborated by DW1. He insisted that defendant admitted liability to only one cow and not four during the arbitration process. Interestingly when PW1 came under cross examination by plaintiff on 17/10/2023 he openly admitted that the arbitration process was aborted due to defendant’s intransigence. Below are excerpts of what transpired: Q. What was the nature of the claim brought against me by the plaintiff A. He claimed his cattle were with you Q. Do you remember the plaintiff told you that I borrowed one cow from him whilst the herdsman also absconded with one so I should pay for the two cattle. A. I don’t remember this. What I remember is that the plaintiff said he had six cattle with you and you had refused to release them to him. Q. Do you remember a misunderstanding erupted between you and me during the arbitration because of the unfair manner in which you were handling the matter. A. You pleaded that I settle the matter, yet, you were arguing and that was what brought the misunderstanding between us. Q. Do you remember that when we came before you I entirely denied the plaintiff’s claim and you made me pay GH¢400.00 to your stool for you to hand over back the matter to the plaintiff. A. That is true. The tradition is that once a party disputes the claim you are bound to pay some fees to the stool so that the matter would be discontinued and for the complainant to pursue the matter elsewhere. From the above, it is without doubt that the dispute was not resolved because the arbitration attempt got stalled. This is evident on the fact that the defendant was made to pay a fee for the failure of the process. On the evidence, I am satisfied that what took place before the chief of Kparekpare, Nana Atta Foster and his panel did not meet the legal requirements of a valid customary arbitration, see Budu II V Caesar and others [1959] GLR 410. The purported arbitration award of four cattle in favour of the plaintiff was therefore inappropriate. For the foregoing, I hold that the dispute has not been arbitrated and therefore is not res judicata. In conclusion therefore, judgment is partly entered in favour of plaintiff as follows: 1. Plaintiff is to recover one cow from defendant. 2. The defendant is hereby ordered to make the cow available to plaintiff at plaintiff’s kraal or his house within fourteen (14) days from today. Considering the nature of this case there will be no order as to costs. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 16TH NOVEMBER, 2023.