AZURE VRS ADELWINI (civil case 2 of 2024) [2024] GHADC 519 (2 April 2024)

IN THE DISTRICT COURT, ZEBILLA HELD ON 24TH APRIL, 2024 BEFORE HIS HONOUR JEPHTHAH APPAU SITTING AS AN ADDITIONAL MAGISTRATE. SUIT NO.: UE/ZB/DC/A6/02/2024 VIDA AZURE ZEBILLA PETITIONER VRS. AKOLOGO AUGUSTINE ADELWINI ZEBILLA RESPONDANT. JUDGMENT. INTRODUCTION “LOVE IS EVERYWHERE AROUND US. UNFORTUNATELY, WE USE BRAIN TO FEEL IT.” Anonymous. On 7th September, 2023 the Plaintiff herein filed a writ of summons against the Defendant claiming the following reliefs: 1. Defendant to take responsibility of all the medical bills of the Plaintiff 2. Return all properties of the Plaintiff in the possession of Defendant 3. Return an amount of Six Hundred Ghana Cedis (Ghc600.00) owed by Defendant 4. Cost. PLAINTIFF’S CASE: The Plaintiff, a student of Sunyani Technical University in her claim says that she met the Defendant on 30th of October, 2022 through Facebook messenger and subsequently fell in love with him and started “having sex for the sake of the relationship.” 1 | P a g e That after having sex with the Defendant, he gave her an emergency contraceptive pill by name “Levonorgestrel tablets BP – free 72”. She says that after taken the contraceptive, she did not see her menses for couple of months. That she told the Defendant about her condition and he advised that she should go to hospital which she did but was told that it was the effect of the contraceptive that she took. That after, the defendant told her that he is no more interested in the relationship and that they should breakout of same. She also claimed to have given to the Defendant some amount of moneys (Ghc7,080.00) from which some expenses were made leaving outstanding balance of Ghc1,650.00 with the Defendant together with three(3) pieces of Kentey Cloths, Two(2) T-Shirts, a hard disc, four(4) cloths as well as her personal dresses she left in the Defendant’s house. DEFENDANT’S CASE: The Defendant who is a National Service Personnel (Trainee Teacher) at Bawku Senior High School agreed meeting the Plaintiff on Social Media and they later became friends. He also agreed to have slept with the Plaintiff but quickly put-up a defence that, the Plaintiff forced herself on him to have sexual intimacy with her. That according to the Defendant, just after they had sex, he and the Plaintiff started having problems that very night and the Plaintiff told him not to worry if it is pregnancy that he is afraid of. That the Plaintiff then introduced to him a contraceptive (LEVONORGESTEL B-P FREE 72) and gave him money to buy for her. He further said that, the Plaintiff called him from school and informed him that she has missed her period (menses) and that when she did the checks it was not pregnancy but the effect of the drug she took. That he advised her to go to hospital at Zebilla for check- ups which she did but refused to show the results to him. 2 | P a g e That the Plaintiff then insisted that he should see her family for marriage or to take her to Komfo Anokye Teaching Hospital in Kumasi for medication. That, it is when he couldn’t meet any of her demands that the Plaintiff started insulting, threatening and blackmailing him by calling his relatives, parents and friends of her intent to jail him. That she also reported him to his Assemblyman, Pastor and Social Welfare Office before finally ending up in this court. Plaintiff also agreed of receiving Seven Thousand Ghana Cedid (Ghc7,000.00+) plus from the Plaintiff but could only account for Four Thousand, four Hundred and Sixty Ghana cedis (Ghc4,460) with the excused that the Plaintiff took away the book he use to record all expenses and has since not returned it. RETURNED OF PLAINTIFF’S PROPERTIES BY THE DEFENDANT: It has to be noted that, the defendant agreed having in his possession some items belonging to the Plaintiff as claimed and returned them to the plaintiff on 19th of October, 2023 just after she concluded her evidence in chief. This therefore resolves plaintiff relief “2” as per her writ of summons. See records of proceedings. ISSUE FOR DETERMINATION: 1. Whether or not there is a breach of promise to marry the Petitioner? 2. Whether or not the Defendant owes the Plaintiff money that has to be return to her? RELEVANT LAWS: In the article by H.J.A.N. Mensa-Bonsu “The Action for Breach of Promise to Marry in Ghana: New life to an old rule” the learned author states the law at p.44 as follows: “An 3 | P a g e action for breach of promise to marry arises when a person makes a promise to marry another, and refuses to perform. The refusal could be by conduct ... Or by an express refusal upon a request for performance. Unchastity does not operate as a defence unless it is unknown to the defendant. Otherwise it only goes in mitigation of damages”. It is thus the case that where a man or woman makes a promise of marriage to another and then fails to carry it through, it is a recognizable wrong for which the court would give remedy. See the case of AMA SERWAA vrs. GARIBA HASHIMU AND ISSAKA HASHIMU (2021) DLSC 10154 at p. 21 per PROF. MENSA-BONSU(MRS), JSC. Section 11 (1) of the Evidence Act, 1975 (NRCD 323) provides as follows: “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue”. Section 10 (1) may also be quoted: “…..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”. Section 10 (2) says: “The burden of persuasion may require a party to raise a reasonable concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities ….” And preponderance of the probabilities” according to section 12 (2) of NRCD 323 means “that degree of certainty of belief in the mind of the tribunal of fact or the court which it is convinced that the existence of a fact is more probate than its non-existence”. Thus, the combined effect of sections 11(1); 10 (1) & (2) and 12 (1) & (2) of the Decree may simply be stated that the Plaintiff is under a strict statutory obligation to establish 4 | P a g e a requisite degree of belief on the preponderance of the probabilities that in fact and indeed there was preponderant facts either direct or presumptive that there was in fact a binding contract/agreement between the parties which needs to be enforced. See the case of Adwuberg v. Domfeh. “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) have clearly provided that the standard of proof in all civil cases was proof by preponderance of probabilities no exceptions were made”. Thus, in the case of Ackah v Pergah Transport Ltd. (2011) 31 G.M.J. SC 174 at 178, 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. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree. Again, in the Court of Appeal case of Agyenim Boateng & 28 Ors. v. S. K. Boateng, (2009) 5 G.M.J 58 at pp. 62-63, their Lordships confirmed the standard of proof in these terms: “The law has always been that “a person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or 5 | P a g e facts he asserts can properly and safely be inferred. The nature of such averment or assertion determines the degree and nature of that burden.” His Lordship continued: “In a civil case such as the instant one the Plaintiff has the duty and or obligation to prove his case on a balance of probabilities and that no weakness in the defendant’s case can avail him. In simple and unambiguous language, the rule is that the Plaintiff has the burden of proof and persuasion in the civil case. The nature of this burden has now been given statutory definition and expression in Ghana in sections 10(1) and (2), 11 (1) and 12(1) and (2) of the Evidence Act 1975 (NRCD 323).” His Lordship further said: “Thus by the provisions of sections 10(1) and (2) and 11(1) of the Evidence Decree (now Act.) (NRCD 323) the obligation of a plaintiff in the civil case to prove his case on a balance of probabilities and on a preponderance of evidence is now statutory. Before the enactment of NRCD 323 this obligation on the plaintiff in the civil case was simply a rule of practice as propounded in cases like Majolagbi v. Larbi (1959) GLR 190 and further explained an expanded on in the recent case of Zabrama v. Segbedzi (1991) 2 GLR 221, CA.” (pp. 71-72) lines 30-20. And finally, he said: “The law has always been that “a person who makes an averment or assertion which is denied by his opponent has the burden to establish that this averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of such averment or assertion determines the degree and nature of that burden.” See Zabrama v. Segbedzi (supra) at page 223.” (p. 75) lines 40-45.” 6 | P a g e CONTRACT has been defined in the Black Law Dictionary, 11th ed. (Bryan A. Garner) as “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.” Thus it is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. RESOLUTION OF THE ISSUES: ISSUE 1: Whether or not there is a breach of promise to marry the Petitioner? The law as stated in the AMA SERWAA VRS. GARIBA HASHIMU supra, it is the case that failure to carry through the promise to marry is a recognizable wrong for which the court would give remedy. Therefore, for the Plaintiff herein to succeed on issue one (1) against the Defendant, she has to prove on preponderance of probability that in fact on getting to know the Defendant, he (Defendant) did promised her (Plaintiff) of marriage and which she relied on to her detriment. The Plaintiff stated that she met the defendant on social media and subsequently became friends which eventually ended up in amorous relationship between the two. This statement is in fact confirmed by the defendant. What has to be determined is, whether a mere sexual affair between two young people who are not marry constitute a promise of a sort to marry which a breach entitled the other a legal right for damages or compensation under the law. In the case of AFRIFA VRS CLASS PETER (1975)1GLR 359 C.A where the Defendant promised the Plaintiff (Ga woman) that he will marry her, he sent to the Plaintiff’s family gifts of money and drinks and also ring and a bible and thereafter cohabited with her. In anticipation of the marriage the Plaintiff resigned her employment but the 7 | P a g e Defendant however did not honour his promise and postponed the marriage four times. Plaintiff successfully sued and the court held that; the postponement of the marriage at the appellant’s behest implies a willingness to marry at a future date. If the appellant claimed he had already married the respondent according to Ga Customary Law then the logical conclusion to be drawn from the facts was that the postponement was in relation to marriage under the Ordinance. The emphasis is mine. In the old case of DJARBENG V. TAGOE (1989-90)1GLR H.C, in which the plaintiff became pregnant as a result of the amorous relationship with the defendant. Five months after the pregnancy the defendant left Ghana for United Kingdom to pursue further studies. The plaintiff claim was that before the Defendant left for the United Kingdom, he had promised to marry her and that the defendant repeated the promises in several letters between the two of them while the defendant was in the United Kingdom. The court held per Ampiah J.A that “on the evidence there had been no promise to marry the Plaintiff. The mere statement that the defendant had agreed to wed the plaintiff did not constitute any binding to marry ….. There was therefore no binding promise by the defendant to marry the plaintiff.” From the records of proceedings, it seems that the only person from the defendant’s family who knows the Plaintiff in person is DW1 (Victor Akologo) and he first met the plaintiff in Court after talking to her somewhere in April 2023 on phone for the first time. See paragraph 1 of DW1’s evidence: “1. I am Akologo Akpeneba Victor. I am a nurse by profession. The Respondent is my junior brother and I first spoke with the petitioner on phone some time ago but saw her physical in this court.” This evidence by DW1 was never contradicted by the plaintiff. She in fact seems to corroborate same per her questions during DW1’s cross-examination. 8 | P a g e “Q. I put it to you that I called you on 08/04/2023.” “A. You say it was in April. I can’t argue because I can’t tell the exact date.” I find it extremely difficult from the authorities above state, juxtaposing it to that of the pleadings and the records of proceedings to accept that there was a promise by the defendant to marry the plaintiff save having sexual intercourse together. If you’re giving it your all and it isn’t enough, then you’re giving it to the wrong person. It is therefore highly unfortunate that the Plaintiff fall in love with the most unexpected person at the most unexpected time. She therefore has to accept the truth and stop wasting time on the wrong person. CLAIM OF MEDICAL BILLS: However, on the plaintiff claim of medical bills, it is not in controversy that after the sexual intercourse, the parties agreed for the plaintiff to take contraceptive (Levonorgestel B-P, Free 72) to prevent pregnancy. It is also not in contention that the Plaintiff after some time started having complications and therefore visited hospital for solution, save failing to produce any documents from the hospitals visited or receipts of medical bills paid so far during hearing. That notwithstanding, I am of the strong conviction that, the plaintiff is entitled to some nominal damages. I am embolden by the decision in the case of RICASBED GHANA LTD v. FORESTL COMMISSION; Civil Appeal case No.JA/38/2023, 28th March, 2024 where it was held: “It is noted that nominal damages are essentially symbolic. The giving of them is only appropriate where no actual recoverable loss is shown.” The court further held that: 9 | P a g e “A fortiori, there is every reason to award nominal damages where the Plaintiff’s action is brought with the primary aim of establishing the existence of a right, compensation being a mere by-product and substantial loss neither alleged nor proved. See Armstrong vrs. Shepherd & Short Ltd. (1959)2 QB. 384, (1959)2 All ER 651, CA.” ISSUE TWO: Whether or not the Defendant owes the Plaintiff money that has to be return to her? The plaintiff per the endorsement on her writ of summons at relief three (3) is claiming for a return of Six Hundred Ghana Cedis (Ghc600.00) the Defendant owes her. She however in her evidence in chief ended up demanding for Thousand Six Hundred and Fifty Ghana Cedis (Ghc1,650.00) under the following breakdown: ➢ Outstanding balance of the Ghc7,080 she gave to the Defendant = Ghc 1,050 ➢ Monies directly borrowed from the Plaintiff = Ghc 600 Ghc1,650 The defendant in his evidence in chief also accepted receiving “Seven Thousand plus (Ghc7,000+) from the Plaintiff. He again gave list of items some expenses were made on at the instance of the Plaintiff amounting to Four Thousand, Six Hundred and Fifty plus (Ghc4,650+) aside the following expenses the plaintiff herself admitted: 1. Amount returned to the Plaintiff Ghc1,470, Cost of Kentey Cloth Ghc300. These put together amounted to Six Thousand, Four Hundred and Twenty (Ghc6,420.00), leaving the outstanding balance of the Ghc7,080 to Six Hundred and Sixty Ghana Cedis (Ghc660). It is further noted that the defendant failed to impeached or discredit on the alleged Ghc600.00 the plaintiff claimed to have been borrowed directly by him from her during cross-examination as well as in his evidence in chief. 10 | P a g e In the case of DANIELLI CONSTRUCTION LTD V. MABEY & JOHNSON LTD (2007-08)1SCGLR 60 @ 65, Ansah JSC held that; “ the plaintiff company did not cross- examine the witness of the defendant company in the witness box when he gave the evidence; the plaintiff company did not also tender any evidence to challenge the veracity of the evidence ….. and the inference was that it admitted the import of the evidence: see Fori v. Ayirebi (1966) GLR 627,Sc and Brown v. Dunn (1984) 6 R67.” Emphasis is mine. See also; EDMUND DANSO v. MOSES ADJEI (2013)58 GMJ 71 @ 89-91, per Amadu J.A Note also that, the defendant cannot take cover under the exceptions as stated per Wood CJ in the case of GHANA PORTS & HARBOURS AUTHORITY & CAPTAIN ZEIM v. NOVA CPMPLEX (2007-2008) 2 SCGLR 806 AT 827 and I will hesitate to apply them in aid of the defendant. Therefore, I accept the Ghc600.00 the plaintiff alleged to have been borrowed from her by the defendant as a fact well proved against the defendant. In effect, the total amount of money the defendant has to refund to the plaintiff is Thousand Two Hundred and Sixty Ghana cedis (Ghc1,260.00) being the outstanding balance of the Ghc660 plus Ghc600 borrowed. CONCLUSION: Court orders as follows; 1. An order for a Nominal damages of Thousand Ghana cedis (Ghc1,000.00) for the plaintiff to cover part of the medical bills. 2. An order against the defendant to refund to the Plaintiff an amount of Thousand Two Hundred and Sixty Ghana cedis (Ghc1,260.00) being the outstanding balance of the Ghc660 plus Ghc600 borrowed. 3. No order as to cost taking into consideration the financial standing of the parties. 11 | P a g e (SGD) H/H JEPHTHAH APPAU (SITTING AS AN ADDITIONAL MAGISTRATE 12 | P a g e