Howusu Vrs Howusu [2022] GHACC 86 (27 October 2022)

IN THE CIRCUIT COURT HELD AT KPANDO ON THURSDAY THE 27TH DAY OF OCTOBER, 2022, BEFORE HIS HONOUR FRANCIS ASONG OBUAJO., THE CIRCUIT COURT JUDGE. =================================================== SUIT NO C11/7/2019 MAWULOLO HOWUSU PLAINTIFF VRS. KOFI HOWUSU DEFENDANT ---------------------------------------------------------------------------------------- ======================================================= JUDGMENT. On the 19th March 2019 the plaintiff issued a writ of summons against the defendant seeking the following reliefs:- (a) An Order for the recovery of the five diamond crystals left with the Defendant or alternatively pay the plaintiff their assessed present value. (b) Cost. In the statement of claim the plaintiff says he is an ex-serviceman now resident at Kpando and the defendant is the elder brother who resides at Kpando as blacksmith. It is the averment of the plaintiff that he was compensated by the Army High Command led by Brigadier Utuka with five (5) polished diamond crystals with the defendant who was then staying in their father’s house in 1976 when he was going for an operation out of the country. Prior to that, both of them inspected the dined and same wrapped in cotton wool and lied in a polyphone and put in an old match box. Plaintiff tater resigned from the Army and went to stay in Botswana for ten (10) years before he returned home in Page 1 of 9 2010 for the first time due to the matter’s death. In 2012 when plaintiff finally returned home due to ill health and later requested for diamond from the defendant before their other five siblings but defendant failed to produce same to him. Plaintiff further said he summoned the defendant before the late Togbui Dogodu where the defendant explained that he compensated the plaintiff with the money he gave him when the plaintiff was going back to Botswana in live of the diamonds that defendant could not find for plaintiff. The plaintiff averred that even though he demanded GH¢12,500.00 as part payment of the total cost of the diamonds. It was agreed between them that the defendant will pay GH¢7,500.00 to plaintiff so he could return to Botswana but defendant failed to pay the said money to him not even when the defendant was summoned before Togbui Opeku of Agbenoxoe. Adding that all efforts including the demand notice that he accused his lawyer to write to the defendant for the demands or its value in cash has prevent futile. The plaintiff is hereby demanding for the demand left with the defendant, for safekeeping including a gun, their father’s note book as well as secrete blocks in his possession. On his statement of defence filed on the 3/4/2019 the defendant in his paragraph 5 admitted he was given the precious statues by the plaintiff but not in a regular four square but the colour of the statues were like white drinking glass. Later the chief and elders ordered the defendant to pay GH¢7,500.00 for the lost precious statues to the plaintiff as they could not ascertain the price of the statues from Diamond House in Accra. The defendant stated that his children are willing to pay the said GH¢7,500.00 to the plaintiff but the plaintiff is not willing to sit down with them for repetition. TRIABLE ISSUES. The triable issues as set down are: Page 2 of 9 (i) Whether or not the Plaintiff gave five polished Diamond crystals to the defendant for safekeeping in 1976 before Plaintiff embarked on an operation out of the country. (ii) Whether or not the defendant is obliged to replace the five diamond crystal to the Plaintiff or pay for the current assessed value of same to the plaintiff alternatively. (iii) Whether or not the plaintiff is entitled to his claims. It must be noted here that the plaintiff siled two other witness statements in the case but not call them to give evidence and did not also tender those witness statement into evidence. Therefore, the said witness statements do not form past of plaintiff’s evidence. PLAINTIFF’S EVIDENCE. The plaintiff tendered his witness statement into evidence which evidence is very similar and almost in exact words as contained in his statement of claim. The plaintiff sated that he drew the five polished diamonds that he was given by his superiors on one of the seizure report entries and tendered that sketched into evidence as Exhibit A. He added that after he returned home in 2012, he requested for the five polished diamonds he gave to the defendant in 1976 for safekeeping but defendant failed to produced same to him. It is his further evidence that he was prevailed up on to accept GH¢7,500.00 from the defendant as a full payment for the diamonds at an agitation with the paramount chief but the defendant failed to pay same to him which affected his return to Botswana in time to his job that lead to his permit to Botswana to expire. Plaintiff said he wrote to the defendant in demand of the five diamonds to no avail the later caused his lawyer to write to the defendant twice in demand of the diamonds to no avail. Plaintiff attached the demand letters written to the defendant into evidence as Exhibit B, C and D in that order. The plaintiff prays that the defendant be ordered to pay GH¢7,500. As compensation to him for renting out his gun or a new gun of the same make to replace the old gun, replace his five diamond crystals or its current assessed value be paid to him. Page 3 of 9 Under cross examination from the defendant, the defendant admitted that the diamonds were given to him by the plaintiff. The plaintiff maintained that his father’s note book is in possession of the defendant. DEFENDANT’S EVIDENCE. In his evidence in court the defendant admitted that in 1977 the plaintiff gave the said five pieces of diamonds in a match box for safekeeping which he keeps in their father’s thatch house. Later their father’s thatch house has been re-roofed with iron sheets. Since the plaintiff stated demanding the diamonds from him 2016 after 38 years. He has tried to look for the diamonds but could not five same. Defendant is ready and willing and ready to pay for the current value of the five pieces of the diamonds should the price be ascertained from the appropriate body or source to put the matter to rest. The defendant said he never used the plaintiff’s gun for any hunting expedition and same was used once at the funeral of Togbe Dogadu V. THE LAW AND ANALYSIS The practice as is that in civil cases the parting who in his pleadings or writ of summons raise issues essential to the success of his case assumes the duty to of proof. See, BANK OF WEST AFRICA LTD. VRS. FAIBI VRS. THE STATE HOTELS CORPORATION (1968) GLR 471. Section 11(1) of the Evidence Act 1975 (NRCD 3230 STATES THAT: “For the purpose of this Act the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party” Section 10(2) of NRCD 323 states: “2) The burden of persuasion may require a party, Page 4 of 9 b) To establish the existence as non-existence of a fact by preponderance of the probabilities or by proof beyond reasonable doubt” per section 12(2) of NRCD 323, “preponderance of probabilities” means that degree of certainty of belief in the mined of the tribunal of foot or the court by which it is convinced that the existence of a fact is more probable than its non-existence” it was hold in the case of ADOM VRS. NTOW [1992-94] 4 GBR 1603, CA at 1161 that: “The law does not demand of a party a regiment of witnesses to prove his case. The law is well settled that multiplicity of witnesses done not prove a case and that the alliance of a single witness is credible and reliable is sufficient proof of a matter in issue”. From the laws referred to and the decided case, it is my considered view that, the plain is required to lead credible evidence to establish his case by preponderance of probabilities. It was held in SERWAH VRS. KESSE [1960] GLR 227 at 223 SC that the onus of proof on a party in a civil case is however less than that of the prosecution in a criminal case. I will now consider the first and second issues together under this principle of law. ISSUE ONE:- Whether or not the plaintiff gave give polished diamond crystals to the defendant for safekeeping in 1976 before the plaintiff embarked on an operation out of the country: ISSUE TWO: Whether or not the defendant is obliged to replace the five diamond crystals to the plaintiff or pay the current assessed value of same to the plaintiff alternatively. Considering the pleadings of the plaintiff in this suit up to the evidence led at this hearing which is not substantially different from the pleadings. One identifiable issue that stands out is the fact that the plaintiff gave five polished diamond crystals to the defendant for Page 5 of 9 safekeeping before the plaintiff went on an operation. Out of Ghana in 1976. The defendant in his statement of defendant just as his evidence at the hearing did not deny or contest the fact that the said five diamonds were given to him in a match box by the plaintiff for safekeeping. This obvious admissions of the defendant in his statement of defence should have triggered the rules under Order 23 Rules (1) and (6) of C. I 47 by any of the parties to file a motion to that effect for the court to make a determination on without going through trial on this admission. The case of EWUSIE MENSAH VRS. EWUSIE WENSAH [1992] 1 GLR 271 Contemplate. It is the funding of this court that, the defendant had led evidence as the trial that corroborated the evidence of the plaintiff to the effect that he received those fire diamond crystals from the plaintiff for safekeeping in 1077 rather than the 1976 mentioned by the plaintiff. There is therefore the difference of the crystals were given out to the defendant that should be resolved. It is my candid view that the differences as to the year the plaintiff gave out the diamonds to the defendant which he stated to be in 1976 contrary to 1977 stated by the defendant should not outweigh the fact that the five diamond crystals were given out by the plaintiff to the defendant who equally testified to receiving same. I therefore settle for the evidence of the defendant that he received five diamond crystals from the plaintiff for safekeeping somewhere in 1976/1077. That being the case, the defendants’ evidence has corroborated the evidence of the plaintiff. It was held in the case of MANU VRS. NSIAH [2004-2005] SCGLR 25 at 33 per see LARTEY JSC that: “The well-established rule as espoused in Banahene v. Adinkra [1976] LGLR 346 AT 350 CA is that where the evidence of a party on a pint in a suit is corroborated by witnesses of his opponent, while that of his opponent on the same issue stands uncorroborated even Page 6 of 9 by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for same good and apparent reason the court finds the corroborated version incredible, Impossible or unacceptable”. See; AGYEIWAA VRS. P&T CORPORATION [2007-2008] 2 SCGLR 985 at 990-991. It is my feeding of a fact that the said five polished diamond crystals of the plaintiff were given to the defendant for safekeeping in 1976 same not gifted to the defendant, as by the defendant’s evidence corroborate that of the plaintiff over the five diamonds. On the issue of replacing or given the five diamond crystals back to the plaintiff as he is requesting. The defendant in his evidence said he has tried looking for these diamonds so he can give them back to the plaintiff when he started demanding same. He added that he has since not found them and told the court at the trial that he is willing to pay the current value of same to the Plaintiff. Since the diamonds were not gifted or sold out to the defendant by the plaintiff, who is in demand of same from the various arbitration from the family level to the paramount chief of Kpando, which has finally come to this court, it is my further finding that the defendant is obliged to replace the diamonds to the plaintiff. The defendant has to therefore pay the current value of the five polished diamond crystals to the plaintiff as he has admitted and willing to do. It is my conclusion that the current assessed value of the five diamonds be paid to the plaintiff by the defendant without more. ISSUE THREE Whether or not the plaintiff is entitled to his claim against the defendant. The plaintiff came to court seeking only two reliefs against the defendant, thus the recovery of the five polished diamonds contained in a match box given to the defendant Page 7 of 9 in 1976 or alternatively pay the current assessed value of same to the plaintiff and then cost. The court has found that the plaintiff is entitled to his relief one The defendant is therefore ordered to pay the current assessed value of the five diamond crystals to the plaintiff. It is hoverer noted that the plaintiff led evidence at the trial seeking to recovery of their later father’s note book where vital information’s were recorded from the defendant, without wore. The defendant denied knowledge of the said note book and not keeping same. The plaintiff did not lead credible evidence by preponderance of probabilities for the court to agree with him that the defendant has the said note book in his custody beyond his bare assertion under oath at the hearing. It was held in T. K. SERBEH & CO LTD VRS. MENSAH [2005-2006] SCGLR 341 at 360-361 per DK DATE-BAH JSC that: “For however credible a witness may be his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof” See: MAJOLAGBE VRS. LARBI [1958] GLR 190. On the principles of the above decided case therefore, it is my fording and conclusion that plaintiff could not prove this averment against the defendant. The Defendant therefore could not be ordered to so produce the said note book to the plaintiff. In any case, the recovery of this note book is not one of the reliefs the plaintiff is seeking from the defendant. Even though the court has already ordered that the current assessed value of the five polished diamond crystals be paid to the plaintiff, one outstanding requirement that the court is hesitant to do soen motu is the appointment of the body corporate or institution to be directed to so assess. The current value of the diamonds in issue. No evidence was lead as to the size and weight of these five polished diamond crystals. To assist any such body to be ordered or so ordered, to fairly assess the current value of these Page 8 of 9 diamonds, that not with starting I hereby direct the parties to report to the precious mineral marketing company Ltd. Diamond House in Accra per the Director or chief Executive officer (CFO) as the appointed body to assess the current value of the diamonds and submit the assessed value to this court within two weeks from the day of this judgment for same to be entered as the ordered assessed value of the five polished diamond crystals for the defendant to pay to the Plaintiff. Cost of GH¢3,000.00 cost awarded against the Defendant for Plaintiff SGD FRANCIS ASONS OBUAJO CIRCUIT JUDGE. 27/10/2022. Oliver Atsu Abada Esq. Counsel for Plaintiff. Page 9 of 9