Abass Vrs Attah [2022] GHADC 285 (23 August 2022)

IN THE DISTRICT COURT, ABURA DUNKWA, CENTRAL REGION OF GHANA ON 23RD AUGUST, 2022 BEFORE HER WORSHIP, JULIANA S. P. MENSAH, ESQ. (MRS.) SUIT NO. A1/06/2022 JONATHAN ABASS … PLAINTIFF ASEBU VRS. KWESI ATTAH … DEFENDANT EKROFUL PARTIES: Plaintiff - Present Defendant - Present JUDGMENT This is a part-heard suit I inherited from my predecessor before Case Management Conference was held. The Plaintiff, a retired Educationist on 7th September, 2021 commenced the instant suit claiming that Defendant had uttered defamatory words against him in public and also JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 destroyed ten (10) lemon trees on his land. Plaintiff is therefore claiming against Defendant the following reliefs: 1. General damages of GH₵5,000.00 for the utterance of traumatic words to the Plaintiff to wit; “se medze wo fa sor na anye yie a, medse wo befa fomu”. 2. General damages of GH₵5,000.00 for publishing defamatory words to tarnish Plaintiff’s image in public without provocation to wit; eye ewi … ewia mponkye nan guan” literally translated as “you are a thief … you steal goats and sheep.” 3. An order of the court directed at the defendant to prove Plaintiff’s roots as a slave or pay GH₵3,000.00 in damages. 4. Cash the sum of GH₵4,000.00 for destroying Plaintiff’s ten (10) lemon trees valued at GH₵400.00 5. Cash the sum of GH₵300.00 being incidental expenses incurred in summoning the Defendant at the Apewosika Palae which said summons defendant refused to honour. The defendant denied that he uttered any of those defamatory words. He also denied destroying the lemon trees. He further denied that he failed to honour the summons to appear at the Apewosika palace and added that at the palace he explained that the land in contention belonged to his sister. He paid an amount of GH₵20.00 as drink to the stool to seal his response. ISSUES The issues that arise for determination by this court are 1. Whether or not Defendant communicated defamatory statements and which statements have injured Plaintiff’s reputation. 2. Whether or not Plaintiff is entitled to GH₵4,000.00 being the value of ten (10) lemon trees Defendant allegedly destroyed. JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 3. Whether or not Plaintiff is entitled to incidental cost of GH₵300 Plaintiff incurred in summoning Defendant to the Apewosika Palace. 4. Whether or not Plaintiff is entitled to damages THE LAW ON BURDEN OF PROOF The Evidence Act, 1975 (NRCD) 323 Section 11 (1)(4) provides “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. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” In other words, in proving a civil matter, the basic principle of law relating to proof is that it is the party alleging a fact that bears the burden of establishing the existence of that fact by the introduction of sufficient evidence to convince a reasonable mind that on the preponderance of probabilities, the existence of the alleged facts are more probable than its non-existence. See: High Court case, Division Syndicated Capital Limited v. Solcomtech Limited & ors, (2019) 1 GLTR 572 at 573. The standard of proof ‘preponderance of probabilities’ is explained in the Supreme Court case of Sagoe & Ors v. Social Security & National Insurance Trust (SSNIT) [2012] 2 SCGLR 1093 thus “Proof by a preponderance of probabilities” within the context of the burden of proof simply means weightier or superior evidence.” The authorities thus show that the onus is on Plaintiff to adduce sufficient evidence to prove his case on a preponderance of probabilities. JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 The Plaintiff called two witnesses, his son and wife, who for purposes of convenience will be addressed as PW1 and PW2 respectively in this document. Defendant called his sister’s grantor referred to as DW1, as his witness. EVIDENCE OF THE PARTIES I now recall the evidence led by the parties and their witnesses. Plaintiff’s testimony is that he is a 73-year-old man and has cultivated the land in dispute for the past 25 years. In the year 2020, he gave the land to one Otiwa to cultivate cassava and prepare the land for acacia farming. His wife, PW2 planted acacia but later realised that someone had also planted acacia besides the ones she planted on the land. Plaintiff got to know it was Defendant who planted the acacia and so summoned him before Nana Kyei at Apewosika. The Defendant admitted planting the acacia before Nana and promised to pay Plaintiff’s expenses with but has reneged on that promise. Not happy with the situation, Plaintiff lodged a complaint with the land owners, Nana Yimbo Brom IV, the chief of Asebu and Gyansihene of Asebu Traditional area. Nana Yimbo Brom IV and Ebusuapanyin Nana Amenfi Benti a.k.a Nana Asiedu visited the land and told Defendant that the land is for Plaintiff and that Defendant’s sister would be given another land to plant her acacia. Not pleased with this decision, Defendant, without provocation, began to insult Plaintiff in the words “se medze fa sor na anye yie a, medze wo feefa fomu” literally translated as “if I pass up and it does not work I will pass under “eye ewi … ewia mponkye nan guan” (you are a thief, you steal goats and sheep) and “donkor nii” (you are a slave). According to Plaintiff, the above words were uttered in the presence of his wife, son, Nana Yimbo Brom IV and Ebusuapanyin Nana Amenfi Bentil and those words have tarnished his image. JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 The substance of the testimonies of PW1 and PW2 basically, confirmed the alleged defamatory statements by the Defendant in the presence of the named witnesses. The Defendant's testimony is that he never met Plaintiff on the disputed land let alone uttered the alleged words. He asserts that Plaintiff summons him before Nana Yimbo Brom IV for trespass but at the palace, it was disclosed that his sister Agnes Korankyiwaa rented the land from Nana Bentsi VI (DW1) to plant cassia. DW1 confirmed this in his testimony. ANALYSIS OF ISSUES In analysing the issues, I will deal with issues 2 and 3 together first. 3. WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO GH₵4,000.00 BEING THE VALUE OF TEN (10) LEMON TREES DEFENDANT ALLEGEDLY DESTROYED. 4. WHETHER OR NOT PLAINTIFF IS ENTITLED TO INCIDENTAL COST OF GH₵300 PLAINTIFF INCURRED IN SUMMONING DEFENDANT TO THE APEWOSIKA PALACE. On the evidence, I find as a fact that Plaintiff summoned Defendant before Nana Kyei’s palace at Apewosika for planting acacia on his land. At the palace, Defendant responded that the land belonged to his sister and paid GH₵20.00 to seal his response. I also find, as a fact that the issue of the Defendant being Agnes Kwankyiwa’s caretaker came to the fore before the two chiefs. According to the Defendant, Agness Kwankyewaa lives in Accra, but he supervises her workers on the land. It is worthy of note the dialogue during the cross-examination of Defendant. Plaintiff asked: “Q. – Did your sister Kwakyewaa show you the boundaries of the land? A. – Yes she did. JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 … Q. – Before you planted the acacia, what other plants were on the land? A. – There were no other plants because it was virgin land. … Q. – I am putting it to you that Nana Yimbo IV told you that the land belongs to me and that when your sister returns he will give her another land. A. – That is not correct.” In Ampratwum Manufacturing Co. Ltd v. D. I. C. [2009] SCGLR 692, it was held by Baffoe- Bonnie JSC that: “It is fundamental in litigation that parties must commence action against relevant parties to the suit. To institute an action against a party, one must have a cause of action against the defendant.” In the English case of Letang v. Cooper [1965] 1 Q. B. 232, C. A. Diplock L. J. (as he then was) defined cause of action at pp. 242-243 as "simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." In a trespass case, the law expects a prudent owner of land to go after a party who claims ownership and not his caretaker. The Supreme Court succinctly stated in the case of Rosina Aryee v. Shell Ghana Ltd., Fraga Oil Ltd. J4/3/2015, 22nd October, 2015 that “That person you consider a squatter sleeping in a kiosk might have been placed there by the landlord as caretaker or overseer.” In the case herein, it is abundantly clear that the Defendant is only a caretaker of the land in dispute for his sister. It is therefore presumed that Defendant worked within the boundaries of the land his sister showed to him. Hence any allegation of trespass ought JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 to be directed at the alleged owner who showed the boundaries to the caretaker. In that vein, the Defendant, being the caretaker, cannot be held liable for the trespass and destruction of the lemon trees and the cost incurred in summoning him before Apewosika palace. I am of the respectful opinion that Plaintiff ought not to have taken this matter against Defendant after, he asserted his status as the caretaker of the disputed land at Apewosika Palace. The Defendant is not the rightful person to sue because he has no interest in the land. Plaintiff has no cause of action against Defendant. See Ampratwum Manufacturing Co. Ltd v. D. I. C. and Legang v. Cooper supra. On the basis of the foregoing Issues 2 and 3 fail. 1. WHETHER OR NOT THE DEFENDANT COMMUNICATED DEFAMATORY STATEMENTS AND WHICH STATEMENTS HAVE INJURED THE PLAINTIFF’S REPUTATION. The Defendant is alleged to have made defamatory statements against Plaintiff. The first statement is “se medze fa sor nor anye yie a, medze wo beefa fomu”. Plaintiff literally translated this as “If I pass up and it does not work I will pass under.” The second is “eye ewi … ewia mponkye nan guan”. Meaning, “You are a thief. You steal goats and sheep.” The third is “donkor nii”. Meaning you are a slave. In Abu v. BPI [2014] 68 GMJ 115, Osei JA referred to the English case of Grubb v. Bristol United Press Ltd. [1962] 2 All ER 380 where Lord Upjohn said one of the modes of establishing libel is when the words published were defamatory in their natural and ordinary meaning. The literal translation by Plaintiff distorted the meaning of the first alleged defamatory statement “se medze fa sor nor anye yie a, medze wo beefa fomu”. To the ordinary person within this jurisdiction, it means a threat to execute some diabolical intention by any means against Plaintiff. JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 The Black’s Law Dictionary, 8th Edition at pages 260/261, defines, defamation in the following terms: 1. The act of harming the reputation of another by making a false statement to a third party. 2. The wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. 3. A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. 4. That the statement is likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear or dislike. The above definitions were captured in the Court of Appeal case of Abu v. BPI supra in which Osei JA held “… words are capable of being defamatory of a Plaintiff if they tend to hold him up to contempt, scorn or ridicule or if they turned to lower him in estimation of right thinking members of society generally, or if they cause him to be shunned or avoided.” In the High Court case of Afriyie v. Dansowah [1976] 2 GLR 172 in which defamation was alleged, Sarkodee J. in holding (1) held “a trial judge had first to determine whether the words complained of were spoken and of the party complaining. It then became necessary to determine whether they were defamatory and lastly whether they were false, for slander under customary law was actionable per se without proof of special damage provided it was false.” In the instant case, for Plaintiff to succeed on his claim of defamation, he ought to establish that; JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 1. The statement was directed at the Plaintiff, 2. The statements were defamatory, 3. The statements were false and 4. The statements were made in public. The Plaintiff, under cross-examination Defendant’s questions thus: “Q. – Do you remember that Nana Yimbo Brom (IV) asked you (Plaintiff), who gave you the authority to weed the land? A. Because I did not summon you before Nana Yimbo Brom IV, I do not remember. Q. – Do you remember that Nana Yimbo Bro IV asked you who gave you the land but you could not remember? A. – I did not remember. Q. – Do you remember that Nana Yimbo Brom told you that you do not pay royalties to anybody and you answered no? A. I did not sue Defendant in respect of land, so I do not know all that he talking about.” Captured below, is a portion of the dialogue during cross-examination of Defendant by Plaintiff: “Q. – I am suggesting to you that because you failed to see me after you admitted liability, I lodged a complaint against you before my guarantor Nana Yimbo IV. A. – Yes, you did but I sent emissaries to see Nana Yimbo IV to inform him that I am not liable and that it is my sister, Kyakyewaa who owns the land. JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 Q. – Tell the court what Nana Yimbo IV said when he came to inspect the land. A. – I was not there, so I cannot tell what Nana said. Q. – I am putting it to you that Nana Yimbo IV told you that the land belongs to me and that when your sister returns he will give her another land. A. – That is not correct. Q. – I am putting it to you that there were witnesses, including yourself when Nana Yimbo IV made that statement. A. – That is not correct. Q. – I am putting it to you that because of that statement Nana Yimbo IV made, you got angry and made those defamatory statements against me. A. – That is not correct.” I find, from the above dialogue, inconsistencies in Plaintiff’s evidence: Defendant asked, “Do you remember that you summoned me before Nana Yimbo IV?” Plaintiff’s answer was “no”, and the “I do not remember” to all the follow-up questions on the alleged summons. According to Plaintiff he does not remember because he did not summon Defendant before Nana Yimbo Brom IV. Yet in Plaintiff’s paragraphs 7, 8, 9 and 11 of his evidence in chief, he states to the effect that he reported the matter to his grantor, Nana Yimbo Brom IV who in the company of Nana Amenfi Bentsi visited the land. Plaintiff’s assertion that he did not summon Defendant before Nana Yimbo IV makes the testimonies of PW1 and PW2 about the alleged defamatory statements made in the presence of Nana Yimbo IV, doubtful. It must be borne in mind that the substance of Plaintiff’s claim is that while on the disputed land with his grantor Nana Yimbo IV and others, Defendant made the defamatory statements. Meanwhile, Plaintiff testified that he did not summon Defendant JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 before Nana Yimbo. So now the questions that pop up on my mind are (1) What then caused Nana and the others to visit the disputed land as Plaintiff claims (2) Who was Nana Yimbo’s declaration directed at? (3) How come the Defendant responded to Nana Yimbo’s declaration? (4) Who invited Defendant unto the land at the material time? I am of the respectful opinion that both parties were economical with the truth and therefore failed to help the court to have a clear picture of the sequence of events. The Defendant, before this court said when he was summoned before Nana Yimbo, he (Defendant) sent emissaries to inform Nana that he (Defendant) is not liable. Yet the manner in which he made reference to alleged statements and questions asked by Nana Yimbo Brom IV suggests that Defendant may have been personally present when Nana Yimbo IV directed those questions and statements at Plaintiff. The following questions are examples of Defendant’s questions: Q. – Do you remember that Nana Yimbo Brom (IV) asked you who gave you the authority to weed the land? Q. – Do you remember that Nana Yimbo Brom IV asked you who gave you the land but you could not remember? Q – Do you remember that Nana Yimbo Brom told you that you do no pay royalties to anybody and you answered no? It is not clear whether Defendant’s emissaries reported to him what transpired and so must have repeated the above questions to Defendant. CONCLUSION It is on record that Defendant denied Plaintiff’s averment that he was on the land at the material time he is alleged to have made the defamatory statements. Kpegah JA in the case of Zabrama v. Segbedzi (1991) 2 GLR 221 at 246 affirmed the principle of burden to establish an averment by a party. He held JONATHAN ABASS v. KWEKU ATTAH - SUIT NO.:A11/06/2022 “The correct proposition is 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 facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” In the High Court case of Owusu v. Tabiri and Anor [1987-88] 1 GLR 287, Mensah J. held in holding (2) “It was a trite principle of law that he who asserts must prove and must win his case on the strength of his own case and not on the weakness of the defence.” As earlier pointed out, the law requires the Plaintiff to adduce sufficient evidence to proof his case by a preponderance of probabilities but Plaintiff’s contradicting evidence-in- chief and his answers under cross-examination rendered his evidence unreliable. The scales tiled unfavourably towards Plaintiff. In view of the foregoing, I therefore conclude that Plaintiff has not established his claim that Defendant was on the land at the time material he is said to have made those defamatory statements. As a consequence of this conclusion, the issues of whether the statements were defamatory and false, are mute. Consequently, issue 3 also fails. The suit is dismissed. Cost: Cost is waived. SGD: H/W JULIANA S. P. MENSAH MAGISTRATE JONATHAN ABASS v. 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