TAWIAH VRS. BERKO (GJ2/17/25) [2025] GHAHC 55 (10 April 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON THURSDAY THE 10TH DAY OF APRIL 2025 BEFORE HIS LORDSHIP JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE ---------------------------------------------------------------------------------------------------------------- SUIT NO. GJ2/17/25 LINDA TAWIAH - PLAINTIFF Plot 28 Block ‘E’ Kokoso - Kumasi VRS ERIC OWUSU BERKO - DEFENDANT Plot 28 Block ‘D’ Kokoso - Kumasi -------------------------------------------------------------------------------------------------------- TIME: 09:10AM. JUDGMENT: The Plaintiff, has presented her case, as if it is a criminal matter. She alleges stealing of personal items by the Defendant. Indeed, from her Statement of Claim, it is gleaned that, the matter of the alleged stealing by the Defendant was reported to the Suntreso Police Station by her. It is without doubt that, stealing is a crime and it is so dealt with in appropriate circumstances, by the criminal process of this Country by the Republic against the accused person. 1 However, when such a matter comes to a Civil Court, such as it is in this case, the criminal background from which the facts of the case is alleged, sounds in the tort of conversion not stealing. It is common to hear students of the law, say that, whilst stealing is to criminal law, conversion is to a civil action in tort. What then is conversion? It was defined as follows: “It is conversion when a person entitled to the possession of a chattel is permanently deprived of that possession and the chattel is converted to the use of someone else. Here the wrong is not merely an interference with the Plaintiff’s possession or interest in his chattels but also an injury to his right or titled in them.” See Standard Chartered Bank (Ghana) v Nelson [1999] JELR, 66323 (SC) where the above- statement was relied upon from Clerk and Lindsell on Tort (16 Edition). The authorities further say as follows: “Conversion of goods can occur in so many different circumstances that framing a precise definition of universal application is well-nigh impossible. In general, the basic features of the tort are threefold. First, the defendant’s conduct was inconsistent with the rights of the owner (or other person entitled to possession). Second, the conduct was deliberate, not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. 2 The contrast is with lesser acts of interference. If these causes damage, they may give rights to claims for trespass or in negligence but it did not constitute conversion. Mere unauthorised retention of another’s goods is not conversion of them. Mere possession of another's goods without title is not necessarily inconsistent with the rights of the owner. To constitute conversion, detention must be adverse to the owner, excluding him from the goods. It must be accompanied by an intention to keep the goods. A demand and refusal to deliver up the goods are the usual way of proving an intention to keep goods adverse to the owner but that is not the only way.” See Lord Nicholls of Birkenhead in Kuwait Airways Corporation v Iraqi Airways (Nos. 4 and 5) @ 1084 referred to in YungDong Industries v Roro Services & 2 Ors. [2006] JELR 64785 (SC). In the peculiar facts of this case, the Plaintiff claims to be a tenant at Plot 28 Block ‘E’ Kokoso, Kumasi, a property said to belong to the mother of the Defendant and for which at all times material, the Defendant is the one who is said to have physically let the premises to the Plaintiff for and on behalf of his said mother. According to the Plaintiff, she went into occupation of a chamber and hall premises in November, 2023 and was given the keys to same by the Defendant who retained a duplicate key. It is the Plaintiff’s case that, on the night of 20th September, 2024, she attended a religious vigil and returned just after 6:00am to find that, although, the door to her rented premises was locked and not broken into in any manner, her underlisted items were missing or taken away: 3 a) 50 INCH SAMSUNG LED TELEVISION b) MOVADO WATCH c) MICHAEL KOR PYPER WATCH d) MICHAEL KORS LEXINGTON WATCH e) NIXON WATCH f) DKNY WATCH g) MOVADO BOLD EVOLUTION WATCH h) DOLCE & GABBANA GOLD WATCH i) MICHAEL KORS OVERSIZED MAREN GOLD WATCH j) DOCODER k) CREED AVENTUS PERFUME l) MFK BACCARATE ROUGE m) MFK GRAND SOIR n) SALVATORE FERRAGAMO PERFUME o) HOLLANDAISE CLOTHS (12 PIECES) p) GOLD NECKLACE q) GOLD BRACELET r) GOD EARRINGS s) LACE t) LUGGAGE BAGGAGE u) PROVISIONS The Plaintiff averred that, when confronted, the Defendant admitted the commission of the act and undertook to pay the full cost of the items stolen by him. The admission and offer to pay, according to the Plaintiff, was repeated at the Suntreso Police Station by the Defendant. These material allegations that, the Defendant admitted the commission of the act and undertook to pay the full cost of the items allegedly stolen by him, was denied at paragraph 4 5 of the Statement of Defence and the Plaintiff was put to strict proof of the said assertions of hers. In accordance with the tort of conversion, therefore, the Plaintiff is obliged to show that, it is the Defendant alleged tortfeasor who wrongfully dealt with the items listed supra in a manner clearly inconsistent with her rights. She is further to show that, the Defendant alleged tortfeasor evinced an intention to deprive her of the listed items supra, permanently. The question now is, whether or not, it is the Defendant, the alleged tortfeasor, who converted the listed items of the Plaintiff, in her endorsement and Statement of Claim. Further, did the Defendant accept liability before and at the Police Station but later recanted? The burden of proof lies on the Plaintiff. The Law is that, he who avers must proof. It is the Plaintiff who is holding the Defendant for the conversion of her properties stated in her endorsement and Statement of Claim. See Sections 10(1) and 11(1) of the Evidence Act, NRCD 323. Did the Plaintiff proof that, it is the Defendant who converted her items listed supra? The Plaintiff personally testified, tendered documents and then called two Witnesses by way of Subpoena, attempting to proof that, the Defendant is the person who converted her personal items. Her Witnesses are one Evelyn Osei Bonsu (PW1) and a Deputy Superintendent of Polic at the Suntreso Police Station (PW2). 5 The Evidence adduced and its Evaluation. The material evidence of the Plaintiff attempting to connect the Defendant to the alleged conversion is contained in paragraph 7 of her Witness Statement by which she testified as follows: “I state that, when confronted the defendant, he admitted the commission of the act and undertook to pay the full cost of the items stolen by him. The admission and offer to pay was repeated at the Suntreso Police Station by the Defendant who showed great contrition and regret” Indeed, this testimony in paragraph 7 of Plaintiff's Witness Statement supra is a repeat of paragraph 5 of her Statement of Claim. This is what Ollennu J. stated in Khoury V Richter, a High Court decision dated 8th December, 1958 and applied in Majolagbe V Larbi (1959) GLR 190, 192 as follows: "Where a party makes an averment capable of proof in some positive way e. g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going to 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 or facts and circumstances for which the Court can be satisfied that what he avers is true". 6 By claiming that, it is the Defendant who converted her personal effects and offered restitution in the form of paying for the items, the Plaintiff is to produce evidence of the said admission and restitution of the Defendant. Under cross-examination by Counsel for Defendant on 16th January, 2025, the Plaintiff stated inter alia: “Q: At the Police Station, the Defendant’s Statement was taken. You will agree with me? A: Yes, My Lord. Q: You were not privy to the Statement the Defendant gave to the Investigator at the Police Station. You will agree with me? A: Yes, My Lord. Q: I put it to you that, the Defendant never admitted to committing the offence you complained of at the Police Station. A: He admitted. Q: I am further putting it to you that, the claim you made that, the Defendant admitted to the offence is false. A: My Lord, the Defendant admitted that, he committed the offence. Q: You just told the Court that, you were not privy to the Statement the Defendant gave to the Police Investigator at the Police Station. You will agree with me. 7 A: Yes, My Lord, but we were later called by the Head of the Police Department and the Landlord admitted that, he stole the items and he will make payment for the full cost of the items.” These answers the Plaintiff gave under cross-examination, did not help her case and in fact, it showed that, she is not a credible Witness. This is a Witness, who admitted that, she was not privy to the Statement the Defendant gave to the Police Investigator at the Police Station. This same Witness nonetheless, says that, the Defendant admitted committing the offence at the Police Station because they were later called by the Head of the Police Department and then, the Landlord admitted stealing the items and making promise to pay for the items. The Court indeed, finds this Witness not credible. Her insistence in attributing admissions to the Defendant under the cross-examination supra is unsupported by any evidence. She failed to provide a scintilla of evidence of the said admission attributed by her to the Defendant. She did not tender any statement written by the Defendant containing the alleged admissions. She however called PW1 and PW2 to bring that evidence of the said admissions she attributed to the Defendant. This is the evidence PW1 produced to support the Plaintiff who called her. In her evidence-in-chief, this is what she said on 14th February, 2025: “Q: Please give your name to the Court? A: My name is Evelyn Osei Bonsu? Q: Where do you live? A: I live at Complex, Kokoso. 8 Q: You have been served with a Subpoena. Is that correct? A: That is correct. Q: You will agree with me that, at the Suntreso Police Station, the Defendant agreed to pay the cost of the items belonging to the Plaintiff? A: No.” This testimony of PW1 sounded like a thunderbolt. It blasted into pieces the claim of the Plaintiff that, the Defendant agreed to pay for the cost of the items belonging to her. Here the Plaintiff's own Witness has given evidence which is contrary to that given by the Plaintiff who called her whilst Plaintiff's evidence is left unsupported that, the Defendant admitted to pay for the cost of the items. PW2 also testified in-chief on 24th February, 2025, inter alia: “Q: Please, you are here on Subpoena. Is that correct? A: Yes, My Lord. Q: What is your rank at the Suntreso Police Station? A: My Lord, Deputy Superintendent of Police (DSP). 9 Q: Please on/or about 21st September, 2024, did one Linda Tawiah lodged a complaint at your station and for clarity, Linda Tawiah is the person on her feet in the Court Room? A: Yes, My Lord, the said case was reported on 14th September, 2024. Q: What was the complaint of Linda Tawiah? A: My Lord, in brief, it was about unlawful entry and stealing. Q: Who was the suspect, please? A: My Lord, she mentioned the Landlord as her suspect, the name is Eric Owusu Berko. Q: What was the outcome of your investigation? A: My Lord, in respect of the suspect that the complainant mentioned, the investigation could not adduce any evidence to prosecute him. So, he was granted an enquiry bail and the case is still pending. Q: Did Eric Owusu Berko undertake to pay for the cost of the missing items? A: My Lord, not in my presence and we do not have that mandate to compel someone to make such undertaking. Q: Apart from you personally, did he make the undertaking before any other officer? 10 A: My Lord, that was not brought to my notice.” This testimony is a bombshell. The Plaintiff alleged that, the Defendant repeated his admissions of liability at the Suntreso Police Station as well as the restitution to pay for the cost of the items. Now, the Plaintiff, to proof her case, produces a Witness from the Suntreso Police Station. This Witness in the face of the Court, testifies that, the investigation could not adduce any evidence to prosecute him. On that self-same day, under cross-examination by Counsel for Defendant, PW2 testified further: “Q: And the suspect denied committing the alleged crime. You will l agree with me? A: Yes, My Lord, he denied.” So, both in his evidence-in-chief and under cross-examination, Plaintiff's Witness, PW2 gave evidence detrimental to her case whilst the evidence rather supported the denial of liability and the alleged restitution claimed against the Defendant by the Plaintiff. In the case of In re: Asere Stool; Nikoi Olai v Amontia IV (substituted by Nii Amon II) v Akortia Oworsika III (Substituted by Laryea Ayiku III) [2005 – 2006] SCGLR, 637, the Supreme Court speaking through Dr. Twum, JSC stated as follows: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state facts formerly asserted. That type of proof is salutary of evidence based on commons sense and expediency.” 11 The Plaintiff's Witnesses, PW1 and PW2 gave evidence advantageous to the Defendant’s case that, he did not convert the Plaintiff’s said personal effects and further that, he never made any admission of same, including payment for the cost of the said items. He needs no better evidence of his denial of liability when the “yoke” upon him had been removed by PW1 and PW2. As at this stage where the testimony of the Plaintiff’s Witnesses was against her own interest, her case had irredeemably collapsed and dead. Indeed, the Defendant himself testified as follows under cross-examination, by Counsel for Plaintiff: “Q: You will also recall undertaking to pay the cost of the missing items to the Plaintiff? A: No, I did not accept that.” This Court on the totality of the evidence adduced at the trial finds that, the Plaintiff failed to provide any shred of evidence in prove that, the Defendant converted the items she listed in the Statement of Claim. Clearly, there is no evidence before the Court that, the Defendant has conducted himself inconsistent with the ownership right of the Plaintiff’s listed properties supra. 12 Consequently, the Court dismisses the action of the Plaintiff for being without merit. The Court awards costs of Gh₡10,000.00 in favour of the Defendant against the Plaintiff. (SGD.) H/L JUSTICE CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Kwasi Afrifa for the Plaintiff. Prince Boateng Nyarko for the Defendant. 13