LOTSU VRS ATTORNEY GENERAL (H1/86/2021) [2021] GHACA 34 (29 July 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA, GHANA AD 2021 SUIT NO H1/86/2021 29th July, 2021 CORAM : SENYO DZAMEFE JA (PRESIDING) BRIGHT MENSAH JA NOVISI ARYENE JA GORDEN LOTSU VRS ATTORNEY GENERAL ========================================================== JUDGMENT ========================================================== NOVISI ARYENE JA Plaintiff, the appellant herein contends that during the pendency of suit No HCRM/5/16 in which he sought an order of Mandamus against defendant/respondent, he refused service of a motion paper and supporting affidavit filed by defendant’s representative, in open court. Three days later however, he found the said document on the top of his wooden cabinet in his bedroom. Enquiries from bailiffs of the court about how the process ended up in his bedroom yielded no result as both said they did not know his house. Search conducted at the Registry also yielded no results. It is the case of plaintiff that although he had never disclosed his residential address on any process filed in court, his residential address was indicated on the process found in his bedroom. He contended that the conduct of the defendant in depositing the process in his bedroom amounted to an invasion of his privacy as well as a threat on his life. Plaintiff further contended that some personal belongings and documents are also missing from his room. According to plaintiff, he has been gravely traumatized by defendant’s conduct and no longer feels safe in his own room as he does not know when an attempt would be made on his life. Consequently, plaintiff filed the instant action at the Human Rights division of the High Court Accra seeking the following reliefs: a. A declaration of the court that the defendant by its conduct invaded plaintiff’s privacy. b. A declaration of the court that the invasion of plaintiff’s privacy constitutes a violation of his fundamental human rights as enshrined in the constitution of Ghana, 1992. c. A declaration of the court that defendant’s conduct had caused plaintiff undue pain, much suffering and distress, trauma and left him in a constant state of fear and anxiety and does not make him safe or at all. d. An order of the court directed at the defendant to pay to the plaintiff ten million Ghana cedis as minimum compensation for the invasion of his privacy. e. Cost including legal fees Defendant vehemently denied the claim, thereby putting plaintiff to strict proof. At the end of the trial, the trial court dismissed plaintiff’s claim in its judgment delivered on 31st of October 2018. At page 139 of the record of appeal (ROA), the court ruled that “the onus on the plaintiff to adduce evidence that will weigh on the court’s mind that indeed his privacy was invaded by no other person than the defendant, has not been discharged and I shall hold that the plaintiff’s case must fail as a result.” It is this decision of the court below which has resulted in the instant appeal. Plaintiff is before us praying for the judgment to be set aside under herein listed grounds of appeal: I. The court placed a heavier burden of proof on the plaintiff than required by law. II. The court failed to evaluate and analyze the evidence on record and as a result miscarried justice. In this appeal, the parties shall retain the respective descriptions assigned to them in the court below. The pith of the issue of law submitted for our consideration under the first ground of the appeal is that, evidence adduced at the trial met the standard of proof. Counsel referred us to sections 10 and 11 of the Evidence Act, 1975 [NRCD 323] and also the case of Ackah v Pergah Transport [2010] SCGLR 728 at 730, and submitted that plaintiff’s testimony that he found the motion paper with its supporting affidavit in his room was not challenged by defendant. It was also submitted on behalf of plaintiff that, his testimony that it was defendant who provided his residential address on the process, was corroborated by defendant’s representative Maxwell Kodzi at paragraph 5 of his witness statement. The witness also testified in cross examination that plaintiff’s residential address was provided by the State Attorney. Counsel strenuously argued that in the absence of evidence of service of the said process on plaintiff, its discovery in plaintiff’s room leads to an irresistible conclusion that defendant being the owner of the document, ensured its placement in plaintiff/appellant’s room. And that plaintiff/appellant was therefore under no obligation to provide any further evidence to obtain a ruling in his favour. Referring the court to the case of Fori v Ayerebi [1966] 2 GLR 627 and the exceptions espoused by the Supreme Court in Ghana Ports and Habours Authority & Captain Zeim v Nova Complex, [2007- 2008] 2 SCGLR 809 AT 827, counsel contended further that defendant did not challenge the allegation therefore they are deemed to have admitted the averment and no issues were joined. Contrary to the submission that defendant did not challenge the allegation that it was defendant which placed the process in the plaintiff’s room, a careful reading of the statement of defence would reveal that defendant unequivocally denied all the averments in the statement of claim. In paragraph 8 of the statement of defence which was a direct response to Plaintiff’s paragraph 9, (alleging the discovery of the process in his room and invasion of privacy), defendant averred “the defendant does not admit paragraph 9 of the plaintiff’s statement of claim.” To posit that no issues were joined, is a misconception. It is our respectful opinion that having filed the following issues for determination by the trial court; “whether or not the plaintiff subsequently found the named motion paper in his files on top of his wooden cabinet in his bedroom and the issue whether or not the defendant invaded plaintiff’s privacy in violation of his fundamental human rights,” (pages 27 and 28 of the ROA) plaintiff acknowledged that issues were joined. Section 10 of the Evidence Act 1975, (Act 323) provides that the burden of persuasion is the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact. The standard of proof in a civil matter as the instant one, is by a preponderance of probabilities, as was admirably postulated by the court in Fosua & Adu-Poku Mensah-Ansah [2009] SCGLR 310 and Zabrama v Segbedzi [1991] 2 GLR 221. Explaining the burden of persuasion in his book Essentials of the Ghana law of Evidence, the learned author SA Brobbey stated at page 39 that, the burden of persuasion refers to the standard or level of proof that will suffice for the court to believe in the case of the party and to rule in its favour. The learned author continued at page 40 that the standard of proof necessary to discharge the burden of proof relates to the legal not evidential burden. In other words, the party who bears the legal burden on any issue will lose on that issue if the tribunal of fact decides that the required standard of proof has not been reached. The position of the law is that a party who fails to discharge the burden of proof will not succeed in his claim. See Jass co ltd & Anor v Appau & Anor [2009] SCGLR 265, where discussing the burden of proof on a plaintiff at page 270, Dotse JSC observed that in the situation where the plaintiff has not been able to make out a sufficient case against the defendant, the plaintiff’s claim would be dismissed. Expatiating on the burden of proof in Agbeko v Standard Electric Co [1978] 1 GLR432 at 443, Kingsley-Nyinah JA stated “It is a vital principle of evidence a common place of law that the proof lies upon the party who affirms and not upon the one who denies.” The role of the trial judge at the end of a civil trial is to determine which of the parties adduced credible and sufficient evidence, to tilt the balance of probabilities on an issue in his favor. If the evidence on record makes the plaintiff’s case more likely than that of the defendant, the plaintiff ought to succeed in the action. Bissi v Tabiri Alias Asare [1987-88] 1 GLR 360 refers. In discharging the burden of proof, a party must not merely repeat the averments in his pleadings. See the oft cited case of Majolagbe v Larbi & Others 1959 GLR 190, where it was held as follows “proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, for example, by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true.” See also the case of Takoradi flour Mills v Samir Faris [2005-2006] SCGLR 882 where the Supreme Court ruled that the plaintiff in a civil case was required to produce sufficient evidence to make out his claim on a preponderance of probabilities as defined in section 12(2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, it was held that all the evidence be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict. Armed with these authorities, we shall now embark on an enquiry as to whether the trial court imposed a higher burden of proof on plaintiff than required by law. On the burden of proof, the trial judge delivered herself thus at page 131 of the ROA: “In this case, the burden of persuasion rests on the plaintiff to prove that it was the defendant who invaded his bedroom and placed in there the process in question. When proved, the burden shifts unto the defendant to establish that it has no knowledge of the alleged invasion of plaintiff’s privacy. Defendant’s plea if proved will stand unless the plaintiff is able to surmount same by adducing further evidence to show that the act being alleged was actually committed by the defendant.” She further ruled, “Plaintiff therefore, has failed to place any liability on the defendant for which the reliefs he claims against the defendant are sustainable. In all the plaintiff mounted the witness box and merely recited his claims on oath without adducing further evidence to buttress same when his claims were denied.” It is trite that appeal is by way of rehearing accordingly, it is the duty of the appellate court to analyze and evaluate evidence adduced at the trial both documentary and oral, to ascertain on a preponderance of probabilities, whether the conclusion of the trial court was reasonably supported by the evidence. See Tuakwa vrs Bosom [2001-2002] SCGLR 61. See also Djin vrs Musah Baako (2007-2008) SCGLR 686 at 687. And also the case of Adjetey Adjei vrs Nmai Boi [2013-2014] 2 SCGLR 1474, where the Supreme Court ruled that it was incumbent on an appellate court to analyze the whole record of appeal, take into account the testimonies and all documentary evidence adduced at the trial, so as to satisfy itself on the balance of probability. Having regard to our duty as an appellate court, as hereinbefore defined, where an appellant contends that the trial court imposed a heavier burden on him than required by law, we are enjoined to evaluate the evidence and ascertain whether the appellant had made out his case. We have thoroughly reviewed and evaluated the evidence before us, and we can say without a shadow of doubt that the trial court correctly stated the law on the burden of proof. In our opinion, having denied the allegation, plaintiff bore the legal burden of proving his assertions by a preponderance of probabilities. See section 10 (1), 11(1) and 12 of the Evidence Act, 1975 (Act 323). To succeed, plaintiff who is seeking an order from the court directing the Attorney General to pay a whooping sum of ten million Ghana cedis to him as compensation for invasion of his privacy, must produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that indeed, the document was deposited in plaintiff’s bedroom by the Attorney General. The records show that during cross examination of plaintiff, counsel for defendant challenged the assertion that exhibit E, the process, was found in his room. See page 93 of the ROA. The onus was therefore on the plaintiff to present the court with corroborative evidence to induce a favourable ruling from the court that the process was deposited in his room. More so where the evidence shows, (as the trial court found) that plaintiff had not been served with the process and the original copy was still with the Bailiffs of the court. We have carefully reviewed the evidence adduced at the trial and it is our respectful opinion that the trial judge’s conclusions reflect the true position of the law. On the issue “WHETHER OR NOT THE PLAINTIFF SUBSEQUENTLY FOUND THE NAMED MOTION PAPER IN HIS FILES ON TOP OF HIS WOODEN CABINET IN HIS BEDROOM,” no evidence was presented to the court, safe a bare assertion by the plaintiff in his witness statement, and the tendering of the process as exhibit E. The assertion having been denied and challenged by the defendant, it would take more than a mere repetition of the averment on oath, to induce a favorable ruling from the court. Asked in cross examination what he did when he found the process in his room, plaintiff said he did nothing. At page 14 of his witness statement, he testified that he later reported the matter to the Chief Justice. It is interesting to note that plaintiff who alleged that he also noticed that some of his personal belongings and documents were missing from his room, did not find it necessary to lodge a complaint with the Police. Even still stranger, although he claims he made enquiries from two co-tenants in the presence of the landlord concerning the discovery of exhibit E in his room, plaintiff did not find it necessary to call any of them to corroborate his testimony. Exhibit E happens to be the anchor sheet of plaintiff’s allegation and his claim is premised on his residential address which is stated on the process filed by the defendant. Assuming for purposes of argument, that plaintiff indeed found the process in his room, it is our view that the fact that the State Attorney provided plaintiff’s residential address on the process, does not lead to an irresistible conclusion that it was the defendant who placed the process in his room. To succeed, plaintiff must prove the alleged invasion of his privacy by defendant, by producing sufficient evidence by which the court can conclude that the existence of the fact was more probable than its non-existence. Not a scintilla of evidence was presented to the trial court from which an inference could be drawn that it was the defendant who placed the process in plaintiff’s bedroom. It must be mentioned that although the rules of court provide for parties to direct service, it is the duty of court Bailiffs and Process Servers to serve the process. See Order 7 Rule 1 of the High Court (Civil Procedure) Rules 2004, CI 47. After effecting service of a process, the bailiff would make entries in the process book and proof service. See Order 7 rules 9 and 11 of CI 47. Expatiating on this Rule at page 228 of his book Civil Procedure: A Practical Approach, the learned author Kwami Tetteh stated that upon serving the process, the process server would depose in an Affidavit of Service, the identities of the process server and the person served, a description of the process served, the date, day of the week, hour, place and manner of service. Order 7 rule 11(2) also provides that every entry in a Process Book or an office copy of it shall be prima facie evidence of the matters stated therein. Where there is no proof of service, the record will so indicate. In the instant case, the plaintiff subpoenaed the Registrar of the Human Rights Division of the High Court, who testified as DW 1. He told the court that on filing a process, the Registry retains two copies of the document, one for service and the other for the case docket. And that the service copy is sent to the Registrar for the necessary entries to be made before it is forwarded to the Bailiffs for service. He said in the instant case, there was no record of the transmission of the Service Copy to the Bailiffs Section, and that he did not see a copy of exhibit E. The Registrar also admitted that search results show that exhibit E had not been served. The undisputed fact is that the service copy of the process was not served on plaintiff. So the burden of establishing that the document found in his room was the service copy was on the plaintiff. As a court of record, (as emphasized by the above discourse on Order 7), where the records show that the process had not been served, it is our humble view that no useful purpose would be served by no mean a party than the Attorney General, entering into plaintiff’s bedroom to deposit the process. More so when the judgment in the suit to which it related, had been delivered as at the date of the alleged invasion. It is for these reasons that we find ourselves in complete agreement with the conclusion of the trial court at page 138 of the ROA, that “From the evidence before the court therefore, it is patent that the original process meant to be served on the plaintiff has to date remained with one Dan, a bailiff. It stands unproved which copy was lodged in the plaintiff’s bedroom. From the evidence supra, it stands unreasonable for the court to accede to the contention of plaintiff that the process, which has to date remained with the bailiff could be found in the plaintiff’s room.” The appeal fails on this ground. GROUND 2 THE COURT FAILED OT EVALUATE AND ANALYZE THE EVIDENCE ON RECORD AND AS A RESULT MISCARRIED JUSTICE. No new arguments were canvassed before the court on this ground of the appeal. Counsel merely repeated submissions under the ground of appeal hereinbefore discussed. It was argued on behalf of plaintiff that the conclusion of the court that “From the evidence supra, it stands unreasonable for the court to accede to the contention of plaintiff that the process, which has to date remained with the bailiff could be found in the plaintiff’s room,” does not flow from the record of proceedings. And that it was not accurate for the court to have concluded that it was only the court bailiff who had copies of exhibit E, because both the court Bailiff and defendant’s officer, had copies of the exhibit, and that the court glossed over the fact that the exhibit bore plaintiff’s house address. As earlier discussed, we have carefully read the judgment of the trial judge and given careful consideration to her reasons for rejecting plaintiff’s case. We rule that the standard of proof applied in evaluating the evidence adduced at the trial, is the standard required of a plaintiff in a civil case. The judgment in our view is sound in law and there is no justifiable reason to set it aside. We affirm the trial court’s ruling that plaintiff failed to discharge the burden of proof and is not entitled to the reliefs sought. We are fortified in our conclusion by the case of Duagbor & Others v Akyea Djamson [1984-86] 1 GLR 692 where it was held that where the evidence adduced by the plaintiff was unsatisfactory, the judgment should be in the defendant’s favour on the grounds that it was plaintiff who sought relief but had failed to prove that he was entitled to what he claimed. The appeal is dismissed, as lacking merit. NOVISI ARYENE (MRS.) JUSTICE OF APPEAL SENYO DZAMEFE (JUSTICE OF APPEAL) P. BRIGHT MENSAH (JUSTICE OF APPEAL) COUNSEL AKAWARI ATINDEM (S. A.) FOR DEFENDANT/RESPONDENT GODWIN AKPADIE FOR PLAINTIFF/APPELLANT 11